DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 24, 26, 29-32 and 47-49 are rejected under 35 U.S.C. 102(a)(1)- as being anticipated by Collins et al (US PGPub 2019/0249081), as cited on the IDS.
Regarding Claim 24, Collins et al teaches a method for performing a multiplex assay (see [0008] and [0043]), the multiplex assay including using, as probes, a plurality of upconverting nanoparticles(UCNPs) having luminescence profiles (see [0005], [0040] and [0061]), wherein the luminescence profiles possessing different rising times, peak moments and/or decay times (i.e. different optical properties) (see [0011], [0036] and [0040]) manipulated through an interfacial energy migration (IEM) process, and the probes are distinguished from one another based on their differing rising times, peak moments and/or decay times (see [0037] and [0041]-[0044]).
Regarding Claim 26, Collilns et al teaches a method for preparing a library (i.e. a plurality) of spectrally distinct upconverting nanoparticles(UCNPs) (see [0010]-[0011]) comprising:
(a) providing a plurality of different classes (sets) of UCNPs, wherein each different class of UCNP nanoparticle has a luminescence profile (i.e. an optical property profile) possessing distinct rising times, peak moments and/or decay times manipulated through a interfacial energy migration (IEM) process (see [0040]-[0044]; and
b) varying one or more of the following parameters of the UCNPs of each class so as to provide the library of spectrally distinct UCNPs:
core size of the UCNPs (see [0011] and [0041]-[0043]); or
concentrations of emitter ions and sensitizer ions in the core (see [0036], [0040]-[0043]).
Regarding Claim 29, Collins et al teaches that the different classes (sets) of UCNPs have different combinations of activators (see [0036]) and sensitizers (see [0032], which discloses dopants which act as sensitizers).
Regarding Claim 30, Collins et al teaches that the UCNPs comprise one or more of: yttrium and the elements of the lanthanide (Ln) series, i.e., lanthanum (La), cerium (Ce), praseodymium (Pr), neodymium (Ne), promethium (Pm), samarium (Sm), europium (Eu), gadolinium (Gd), terbium (Tb), dysprosium (Dy), holmium (Ho), erbium (Er), thulium (Tm), ytterbium (Yb), and lutetium (Lu) (see [0027]).
Regarding Claim 31, Collins et al teaches that the UCNPS comprise neodymium, ytterbium, thulium and/or erbium (see [0027]).
Regarding Claim 32, Collins et al teaches that the UCNPs contain a host material such as an alkali fluoride selected from the group consisting of NaGdF4, NaYF4 or LiYF4 (see [0029]); an oxide which is Y2O3 (see [0034]) and an oxysulfide (see [0036]).
Regarding Claim 40, Collins et al teaches that the plurality of different classes of UCNPs includes the following: core-multi-shell P-NaYF4: Nd3+, Yb3+, Tm3+ UCNPs, core-multi-shell P-NaYF4: Nd3+, Yb3+, Er3+ UCNPs and P-NaYF4: Yb3+, Tm3+ UCNPs (specifically NaYF4 with Yb3+ and Tm3+ ) (see [0061]-[0062] and [0064]).
Regarding Claim 47, Collins et al teaches that the UCNPs comprise one or more of: yttrium and the elements of the lanthanide (Ln) series, i.e., lanthanum (La), cerium (Ce), praseodymium (Pr), neodymium (Ne), promethium (Pm), samarium (Sm), europium (Eu), gadolinium (Gd), terbium (Tb), dysprosium (Dy), holmium (Ho), erbium (Er), thulium (Tm), ytterbium (Yb), and lutetium (Lu) (see [0027]).
Regarding Claim 48, Collins et al teaches that the UCNPS comprise neodymium, ytterbium, thulium and/or erbium (see [0027]).
Regarding Claim 49, Collins et al teaches that the UCNPs contain a host material such as an alkali fluoride selected from the group consisting of NaGdF4, NaYF4 or LiYF4 (see [0029]); an oxide which is Y2O3 (see [0034]) and an oxysulfide (see [0036]).
Regarding Claim 52, Collins et al teaches that the plurality of different classes of UCNPs includes the following: core-multi-shell P-NaYF4: Nd3+, Yb3+, Tm3+ UCNPs, core-multi-shell P-NaYF4: Nd3+, Yb3+, Er3+ UCNPs and P-NaYF4: Yb3+, Tm3+ UCNPs (specifically NaYF4 with Yb3+ and Tm3+ ) (see [0061]-[0062] and [0064]).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 34, 36, 50 and 51 are rejected under 35 U.S.C. 103 as being unpatentable over Collins et al as applied to claims 24 and 26 above, and further in view of Lannutti et al (US PGPub 2016/0041135).
Regarding Claim 34, 36, 50 and 51, Collins et al teaches the method of claim 26, but does not teach that the plurality of different classes of UCNPs includes at least one class having core-multi-shell UCNPs, wherein the core-multi-shell UCNPs comprise a core, a migration layer and a sensitization layer and the migration layer comprises Yb3+, the sensitization layer comprises Yb3+ and Nd3+ or the core comprises Yb3+, Er3+ and/or Tm3+ , Yb3+ and Er3+, or Yb3+ and Tm3+.
However, in the analogous art of nanofiber-based sensors, Lannutti et al teaches nanofiber-based sensors which comprise UCNPs such as NaYF.sub.4:Yb,Er and La.sub.2O.sub.3:Yb,Er and La.sub.2(MoO.sub.4).sub.3:Yb,Er (see abstract and [0059]). Furthermore, Lannutti et al teaches that the UCNPs are core-shell nanofibers, wherein the core comprises Yb3+ ,Tm3+ and/or Er3+ (see [0033] and [0059]-[0060]).
Lannutti et al does not explicitly disclose that the nanofiber-based sensors include a core, a migration layer and a sensitization layer.
However, Lannutti et al teaches the use of multiple intervening nanofiber layers (see [0091]), wherein having multiple shell layers (such as the sensitization and migration layers, having the chemical constituents discussed above), it would have been obvious to modify the core-shell UCNP of Collins et al with the multiple layers described by Lannutti et al in order to provide the benefit of providing the ability to retain identical oxygen levels.
Claim(s) 34, 36, 50 and 51 are rejected under 35 U.S.C. 103 as being unpatentable over Collins et al as applied to claims 24 and 26 above, and further in view of Cohen et al (US PGPub 2015/0241349).
Regarding Claim 34, 36, 50 and 51, Collins et al teaches the method of claim 26, but does not teach that the plurality of different classes of UCNPs includes at least one class having core-multi-shell UCNPs, wherein the core-multi-shell UCNPs comprise a core, a migration layer and a sensitization layer and the migration layer comprises Yb3+, the sensitization layer comprises Yb3+ and Nd3+ or the core comprises Yb3+, Er3+ and/or Tm3+ , Yb3+ and Er3+, or Yb3+ and Tm3+.
However, in the analogous art of synthesis of upconverting nanoparticles (UCNPs), lanthanide-doped hexagonal .beta.-phase sodium yttrium fluoride NaYF.sub.4:Er.sup.3+/Yb.sup.3 nanocrystals, Cohen et al teaches UCNPs which comprise energy transfer upconversion with Yb.sup.3+ as a sensitizer and Er.sup.3+ as an emitter, and thus are able to function at higher power levels (see [0051] and [0073]).
Accordingly, it would have been obvious to one of ordinary skill in the art to utilize UCNPs wherein the sensitization layer comprises Yb3+ and Nd3+ or the core comprises Yb3+, Er3+ and/or Tm3+ , Yb3+ and Er3+, or Yb3+ and Tm3+ (as taught by Cohen et al) for the benefit of enabling these UCNPs to be able to function at higher power levels.
Claim(s) 41 and 53 are rejected under 35 U.S.C. 103 as being unpatentable over Collins et al as applied to claims 24 and 26 above, and further in view of Bisso et al (US PGPub 2014/0273255).
Regarding Claims 41 and 53, Collins et al does not teach that the UCNPs have a coefficient of variation (CV) value less than about 15%, or less than about 10%, or less than about 5%.
However, in the analogous art of hydrogel microparticles spatially and spectrally encoded using upconverting phosphor nanoparticles, Bisso et al teaches upconverting phosphor nanoparticles in which mean measured integrated intensity values from fifty microparticles for each type of UCNs were then compared with the expected integrated intensity data obtained from a convolution of the UCN emission data and the image sensor response curves. Table 3 below includes measured mean integrated intensity data, the standard deviation and the coefficient of variability for UCNs in microparticles. Expected integrated intensity data based on emission spectra from UCNs in solution are also included for comparison. As shown in the table, the mean integrated intensity and the expected integrated intensity values are consistent. The average coefficient of variation across all particles and UCN colors was 2% (see [0096]). Accordingly, it would have been obvious to one of ordinary skill in the art that the UCNPs would have a coefficient of variation (CV) value less than 5% (as taught by Bisso et al) for the benefit of providing UCNPs with a low standard deviation and providing decoding error rates of less than 1 ppb.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Zhang et al (US PGPub 20110127445) discloses upconverting phosphor nanoparticles with different emission under the same infrared excitation may be applied to luminescent reporter material for the detection of targeted analytes in multiplexed assays. The Tm.sup.3+ doped yttrium oxysulfide (Y.sub.2O.sub.2S) showed upconversion afterglow emission peak located at 545 nm when it was excited by near infrared light (798 nm). Upconversion emission (red and green) were obtained from the Gd.sub.2O.sub.3:Yb,Er and Gd.sub.2O.sub.2S:Yb,Er particles prepared in the ELM system under the same infrared excitation (.lamda.ex=980 nm) via a two-photon process. Up-conversion phosphor fine particles, about 50 nm in diameter, may be used as a luminescent reporter material for immunoassays or DNA assays (see [0075]).
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/JENNIFER WECKER/ Primary Examiner, Art Unit 1797