DETAILED ACTION
Response to Amendment
This is a final office action in response to a communication filed on March 24, 2026. Claims 75-94 are pending in the application.
Status of Objections and Rejections
All objections and rejections from the previous office action are withdrawn in view of Applicant’s amendment.
New grounds of rejection are necessitated by the amendments.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 75, 77-82, 85-89, and 91-93 is/are rejected under 35 U.S.C. 103 as being unpatentable over Webster (T.A. Webster, Electrochemical detection of Pseudomonas aeruginosa in human fluid samples via pyocyanin, Biosensors and Bioelectronics 2014(60), pp. 265-270) in view of Herane-vives (WO 2019/123392), and further in view of Sismaet (H.J. Sismaet, DEVELOPMENT AND OPTIMIZATION OF ELECTROCHEMICAL SENSORS TO DETECT BACTERIAL PATHOGENS FOR POINT-OF-CARE APPLICATIONS, Ph.D. Dissertation, May 2017), supported by Metrohm (Membrane for screen-printed electrodes, DRP-MEMB-U100) and Goluch (E.D. Goluch, Microbial Identification Using Electrochemical Detection of Metabolites, Trends in Biotechnology, 2017 (35), pp. 1125-1128) as evidence.
Regarding claim 75, Webster teaches a method for detecting an infection in a subject's ear (Title; [Abstract]: pathogen Pseudomonas aeruginosa; p. 265, col. 2, ¶2: ear infection caused by P. aeruginosa; since the method of Webster is capable of detecting the presence of P. aeruginosa, a pathogenic bacteria causing ear infection, and thus the method of Webster is capable of detecting ear infection; also see Reimer, [Abstract]: Pseudomonas aeruginosa is the most common bacterium in chronic otitis media, i.e., middle-ear infection), comprising,
(a)-(b): obtaining a sample ([Abstract]: biological fluids from healthy individuals spiked with P. aeruginosa);
(c) measuring a presence, absence, or amount of a compound ([Abstract]: SWV scans of biological fluids from healthy individuals spiked with P. aeruginosa showed a clear pyocyanin response), optionally wherein the compound is redox-active and associated with the infection (as evidenced by Sismaet, p. 109, Table 5-2: the redox active biomarker pyocyanin; here, the pyocyanin used for detection of P. aeruginosa and thus associated to the infection), wherein measuring comprises contacting the compound with an electrochemical sensor (p. 266, col. 2, para. 1: CH Instruments) comprising a working electrode (p. 266, col. 1, last para.: carbon working electrode) and a reference electrode (p. 266, bridging para. of col. 1-2: Ag/AgCl reference electrode), and electrochemically measuring a current flow (Fig. 1; p. 267, para. 2: the resulting current), which is correlated with the presence, absence or amount of the compound (p. 268, Fig. 3: maximum current vs. pyocyanin concentration).
Webster further discloses ear infections is caused by P. aeruginosa in ear secretions, and pyocyanin is used as a diagnostic marker for identification of P. aeruginosa infections (p. 265, col. 2, para. 2). Webster fails to disclose the sample is a sample of cerumen, obtained by being adsorbed onto an applicator or the extracting the cerumen from the applicator comprising contacting the applicator with a solvent.
However, Herane-vives teaches obtaining a sample of cerumen, e.g., earwax sample, by any suitable means (p. 10, l. 30), for example, using an applicator (Fig. 1; p. 14, l. 27: an elongated sponge 8; p. 9, ll. 12-13: a cellulose sponge may be an effective, economical and safe material for its extraction). The earwax is obtained by inserting the tip with the sponge 8 in the ear and rotating the sponge 8 inside the ear canal (p. 15, ll. 17-18). For preparation of samples (p. 11, l. 14), the cerumen was homogenized in Phosphate Buffered Saline (PBS) solution (p. 11, ll. 24-25), and then extracting the compounds which are specifically solubilized in diethyl-ether (p. 12, ll. 16-17).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Webster by incorporating the steps of obtaining the cerumen sample from the ear canal followed by extracting the cerumen as taught by Herane-vives because the disclosed device would provide an effective, safe and hygienic self-extraction of earwax (p. 9, ll. 25-26) to obtain suitable specimen for the subsequent detection and analysis (p. 9, ll. 19-20). As a result, the method of Webster performed on the sample of Herane-vives would necessarily result in detecting an ear infection. Here, the claimed limitations are obvious because all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results. MPEP 2143(I)(A).
Webster does not disclose wherein the working electrode and the reference comprise a hydrophilic membrane.
However, Sismaet teaches electrochemical detection for detecting the presence of pyocyanin in clinical samples on a sensor of 3-electrode setup (Fig. 4-16; p. 83, last para.). The sensing surface is covered with a polymeric membrane (DRP-MEMB) (p. 84, para. 1) that is a mesh covering both the working electrode and the reference electrode (Fig. 4-16). As evidenced by Metrohm, DRP-MEMB membrane improves the wettability of the three-electrode system and the woven open mesh is a monofilament fabric of polyamide (p. 3), and thus it is hydrophilic.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Webster by incorporating a hydrophilic membrane, e.g., DRP-MEMB, on the working and reference electrodes as taught by Sismaet because the membrane would reduce the amount of sample volume required for analysis (p. 84, para. 1; also see Metrohm).
Regarding claim 77, Webster in view of Herane-vives and Sismaet teaches wherein the cerumen is exuded from the subject's ear (Webster, p. 265, col. 2, para. 2: ear secretions obtained from patients with ear infections caused by P. aeruginosa), and/or wherein the cerumen is obtained from the subject's ear canal (Herane-vives, p. 15, ll. 17-18: The earwax is obtained by inserting the tip with the sponge 8 in the ear and rotating the sponge 8 inside the ear canal).
Regarding claims 78-79, Webster in view of Herane-vives and Sismaet discloses all limitations of claim 75. Webster and Herane-vives fail to teach wherein the extracting comprises: removing a substantial amount of the cerumen from the applicator; wherein the extracting occurs in a collection tube, on the surface of the electrochemical sensor (claim 78) or wherein the applicator is a sterile swab and wherein the sterile swab comprises an adsorbent portion that is substantially cotton (claim 79).
However, Sismaet teaches sterile, media-free swabs used to collect P. aeruginosa clinical isolates for electrochemical testing, and each swab was placed into a labeled, round-bottom tube for transport (p. 75, para. 2). For each sample, the swab was directly placed onto the sensor to cover the sensing region with fluid (p. 75, last para.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Webster and Herane-vives by incorporating the steps by removing the obtained cerumen from the applicator, e.g., a cotton swab, into tubes for electrochemical sensing by directly placing the swab onto the sensor as taught by Sismaet because it is a suitable method to obtain P. aeruginosa clinical isolates for electrochemical testing and diagnosis of infection. Here, the claimed limitations are obvious because all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results. MPEP 2143(I)(A).
Regarding claim 80, Webster teaches wherein the infection is a Pseudomonas aeruginosa infection (p. 265, col. 2, para. 2: ear secretions obtained from patients with ear infections caused by P. aeruginosa).
Regarding claim 81, Webster in view of Herane-vives and Sismaet discloses all limitations of claim 75. Webster and Herane-vives fail to teach wherein the subject is a non-human animal, a canine, a captive animal, a pet animal, a farm animal, or a zoo animal.
However, Sismaet teaches square-wave voltammograms of a fluid obtained from a canine that had a P. aeruginosa infection (p. 145, Fig. 5-47).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Webster and Herane-vives by applying the method on a canine subject as taught by Sismaet. The combined Webster, Herane-vives, and Sismaet would necessarily result in the method of detecting ear infection caused by P. aeruginosa on a canine. Here, the claimed limitations are obvious because all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results. MPEP 2143(I)(A). Use of known technique to improve similar methods in the same way is prima facie obvious. MPEP 2141(III)(C).
Regarding claim 82, Webster in view of Herane-vives and Sismaet discloses all limitations of claim 75. Webster and Sismaet fail to teach wherein the solvent comprises an aqueous solution selected from buffer agents and/or organic solvent selected from ethers.
However, Herane-vives teaches sample preparation (p. 11) by homogenizing the sample with Phosphate Buffered Saline (PBS) solution (p. 11, ll. 24-25), and then extracting the compounds which are specifically solubilized in diethyl-ether (p. 12, ll. 16-17).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Webster by utilizing PBS buffer and diethyl-ether for extracting the compounds to be tested as taught by Herane-vives. The suggestion for doing so would have been that PBS buffer and diethyl-ether are suitable extracting solvent for extracting biomarker from earwax and the selection of a known material, which is based upon its suitability for the intended use, is within the ambit of one of ordinary skill in the art. MPEP § 2144.07.
Regarding claim 85, Webster teaches wherein the compound is a quorum sensing molecule ([Abstract]: pathogen Pseudomonas aeruginosa by detecting the presence of pyocyanin). As evidenced by Goluch, use of metabolites to identify bacterial infections, i.e., the concept is exemplified by bacterial cell-cell communication, is known as quorum sensing (p. 1126, col. 2, para. 1); for example, pyocyanin is a valid biomarker for the identification of infections caused by P. aeruginosa (p. 1127, col. 3, para. 1).
Regarding claims 86-87, Webster teaches wherein the quorum sensing compound is a phenazine compound (for claim 86) and wherein the phenazine compound is pyocyanin and wherein the presence, absence, or amount of pyocyanin is indicative of the presence, absence, or extent of a Pseudomonas aeruginosa infection (for claim 87; [Abstract]: pathogen Pseudomonas aeruginosa by detecting the presence of pyocyanin; here pyocyanin is a phenazine compound).
Regarding claim 88, the designation “wherein the method further comprising determining if the microorganism associated with the infection is nonviable or absent, wherein the microorganism associated with the infection is nonviable or absent if the current flow through the working electrode is less than about 10 nA” is contingent limitation and the broadest reasonable interpretation of a method claim having contingent limitations requires only those steps that must be performed and does not include steps that are not required to be performed because the condition(s) precedent are not met. MPEP 2111.04(II). Here, the “determining” step is not required when the precedent condition that “the current flow is less than about 10 nA” is not met.
Regarding claim 89, Webster teaches wherein the electrochemically measuring is square wave voltammetry (p. 266, col. 1, para. 3: using square wave voltammetry SWV).
Regarding claim 91, Webster teaches wherein the presence, absence or amount of the compound is measured as current flow through the working electrode (p. 267, Fig. 1: pyocyanin reacts at the working electrode releasing electrons).
Regarding claim 92, Webster teaches wherein the working electrode is comprised carbon (p. 266, col. 1, last para.: carbon working electrode); and wherein the reference electrode is comprised of silver (Ag), silver chloride (AgCl) (p. 266, bridging para. between col. 1-2: Ag/AgCl reference electrode).
Regarding claim 93, the designations the designation “wherein the method further comprises: administering one or more antibiotics upon a positive test for infection; withholding one or more antibiotics upon a negative test for infection; and/or selecting an appropriate antibiotic for the infectious agent upon a positive test for infection” are contingent limitations and the broadest reasonable interpretation of a method claim having contingent limitations requires only those steps that must be performed and does not include steps that are not required to be performed because the condition(s) precedent are not met. MPEP 2111.04(II). Here, the “determining,” “withholding,” and “selecting” steps are not required when the precedent conditions upon either positive test of negative test of the infection are not met.
Claim(s) 76 is/are rejected under 35 U.S.C. 103 as being unpatentable over Webster in view of Herane-vives and Sismaet, and further in view of Newman (WO 2012/149058).
Regarding claim 76, Webster in view of Herane-vives and Sismaet discloses all limitations of claim 75, but fails to teach the method further comprising estimating a number of viable cells of a microorganism associated with the infection based on the presence, absence or amount of the compound determined in step (c).
However, Newman teaches a method for interfering with viability of bacteria by inactivating a phenazine and/or one or more phenazine related pathways in the bacteria (¶279), for example, the bacterium Pseudomonas aeruginosa (¶281). The inhibiting can be performed by interfering with quorum sensing of the bacteria, by reducing the amount of phenazine in the bacteria (¶280). Inactivating a phenazine and/or a phenazine-related pathway in the bacteria would reduce survivability and/or antibiotic resistance of the bacteria (¶59). The “viability” refers to whether or not a bacterial cell is able to maintain itself or recover its potentiality (¶60). Methods for evaluating the viability of bacteria after the disclosed method include measurement of colony forming units and cell counts.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Webster and Herane-vives and Sismaet by incorporating the step of estimating a number of viable cells of the bacterium associated with the infection as taught by Newman because it would provide an evaluation of the viability of bacteria and their resistance to the antibiotic (¶¶59-60). Here, the claimed limitations are obvious because all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results. MPEP 2143(I)(A).
Claim(s) 83-84 is/are rejected under 35 U.S.C. 103 as being unpatentable over Webster in view of Herane-vives and Sismaet, and further in view of Uchida (K. Uchida, A Simple Method for Isolation of Lipopolysaccharides from Pseudomonas aeruginosa and Some Other Bacterial Strains, Agricultural and Biological Chemistry, 2016(51), pp. 3107-3114) and Le Berre (WO 2019/202137).
Regarding claims 83-84, Webster in view of Herane-vives and Sismaet discloses all limitations of claim 82. Webster further discloses the solvent comprises phosphate buffered saline (PBS) (p. 11, ll. 24-25). Webster further discloses some cerumenolytics solutions (for claim 83), such as those containing mineral oils (for claim 84) may have some utility for extracting or removing the secretion (p. 7, ll. 27-29).
Webster, Herane-vives, and Sismaet fail to teach wherein the solvent comprises: ethanol.
However, Uchida teaches isolation of bacterial strains, e.g., lipopolysaccharides, from Pseudomonas aeruginosa (Title). The method uses a hot MgCl2-Triton X-100 solution by solubilizing with EDTA-Triton X-100 and precipitating with MgCl2 ([Abstract]). The LPS yield was significantly improved by the addition of 2% ethanol (final 20%) (p. 3112, col. 2, para. 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Webster and Herane-vives and Sismaet by incorporating ethanol in the solvent for extracting bacterial strain from Pseudomonas aeruginosa because an addition of ethanol would significantly improve the extraction yield (p. 3112, col. 2, para. 2).
Webster, Herane-vives, and Sismaet fail to teach wherein the solvent comprises: about 1 mM MgCl2.
However, Le Berre teaches producing pyocyanin from P. aeruginosa in Bacto-Peptone (BP) broth, including 20 mg/L BP, MgCl2 1.4g/L, and K2SO4 10g/L (p. 10, ll. 6-7). Here, 1.4g/L MgCl2 in the BP broth is about 15 mM.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Webster, Herane-vives, and Sismaet by incorporating MgCl2 in the extracting solvent for pyocyanin production from Pseudomonas aeruginosa because it is a known component of the extracting solvent in the art. Further, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05(I). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). MPEP 2144.05(I). Further, the desired amount of MgCl2 for the extraction of pyocyanin would be obvious to one of ordinary skill in the art with optimization through routine experimentation. MPEP 2144.05 (II)(B).
Claim(s) 90 is/are rejected under 35 U.S.C. 103 as being unpatentable over Webster in view of Herane-vives and Sismaet, and further in view of Fujiwara (US 2018/0120249).
Regarding claim 90, Webster in view of Herane-vives and Sismaet discloses all limitations of claim 75. Webster further discloses wherein the working electrode is either an oxidizing electrode (p. 267, Fig. 1: pyocyanin reacts at the working electrode, releasing electrons and hydrogens, and is converted to its oxidized form).
Webster, Herane-vives, and Sismaet fail to teach wherein the electrochemical sensor comprises a second working electrode, or the second working electrode is the other of the oxidizing electrode or the reducing electrode.
However, Fujiwara teaches a biosensor for measuring a component by causing a redox reaction of the component and detecting a redox current caused by the redox reaction with an electrode (¶6). In addition, an additional working electrode determines an amount of blood cells or an interfering substance by detecting the redox current on the additional electrode system (¶6). The amount of blood cells or the interfering substance is used to correct the amount of the component (¶6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Webster, Herane-vives, and Sismaet by an additional working electrode which is either an oxidizing electrode or a reducing electrode as taught by Fujiwara because the additional electrode would provide a correction means by an amount of blood cells or interfering substance to correct the measured amount of the component (¶6). Here, the claimed limitations are obvious because all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results. MPEP 2143(I)(A).
Response to Arguments
Applicant’s arguments have been considered but are unpersuasive in light of new grounds for rejection.
Applicant’s arguments regarding claim 75 and its dependent claims are moot because the newly cited prior art, Sismaet (Ph.D. Dissertation 2017), is now relied on to teach the newly added limitation “wherein the working electrode and the reference electrode comprise a hydrophilic membrane.”
In response to applicant's arguments against the references individually (Response, p. 7), one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Here, Webster teaches a method for electrochemical detection of P. aeruginosa in human fluid sample via pyocyanin (Title), and it is known in the art that P. aeruginosa infection would be detected because their ear secretions would contain pyocyanin in the millimolar concentration range (p. 265, col. 2, ¶2; also see Reimer [Abstract]). Thus, since Webster teaches a method that is capable of detecting the presence of P. aeruginosa, a pathogenic bacteria causing ear infection, the method of Webster is capable of detecting ear infection. Further, Herane-vives is only relied on to teach how to obtain earwax out of the ear canal, and it is irrelevant that it is not suggested to be used to clean the ear canal when there is a current ear infection (Response, p. 7, last para.). Herane-vives is not required to teach detecting pyocyanin from P. aeruginosa infection because the primary reference Webster teaches the method of such electrochemical measurements.
Regarding claims 76, Applicant argues Newman teaches inhibiting bacterial growth by inhibiting phenazine pathways, not quantifying for infection detection (p. 9, para. 1), and claim 75 does not require an antibiotic (p. 9, para. 2). This argument is unpersuasive. Newman is relied on to teach “estimating a number of viable cells of a microorganism” in claim 76, and not required to teach electrochemical measurements because the primary reference Webster teaches the method of such electrochemical measurements.
Applicant’s arguments that all other secondary references do not cure the deficiency of Webster and Herane-vives are moot because there is no deficiency to be cured in the instant rejection based on Webster in view of Herane-vives and Sismaet.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/C. SUN/Primary Examiner, Art Unit 1795
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