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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-12 in the reply filed on 30 October 2025 is acknowledged. The traversal is on the ground(s) that the subject matter of all claims is sufficiently related that a thorough search for the subject matter of any one group would encompass a search for the subject matter of the remaining claims. Thus, the examiner would not be unduly burdened if forced to examine Groups I-III together. This is not found persuasive because, as discussed in the Restriction/Election Requirement (dated 10/15/2025), Groups I-III are distinct since the combination as claimed does not require the particulars of the subcombination as claimed for patentability. This establishes that Groups I-III are distinct. Further, a separate classification qualifies as establishing burden for distinct inventions (see § MPEP 808.02 (a)). With regard to applicants allegation that joinder of these distinct inventions would not present a serious burden to the U. S. Patent and Trademark Office, such allegations relied on the unsupported assumption that the search and the examination of both the invention would be coextensive. Further, while there may be some overlap in the searches of the two inventions, there is no reason to believe that the searches would be identical. Therefore, based on the additional work involved in searching and examining all distinct inventions together, restriction of the distinct inventions is clearly proper.
The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim(s) 6, 9 and 12 is/are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 6 recites the limitation "a plurality of anchoring elements" in line 2. It is unclear if the plurality of anchoring elements recited in the claim refers to the at least one anchoring element recited earlier in claim 1 or is an additional anchoring elements.
Claim 9 recites the limitation "at least one anchoring unit" in line 5. It is unclear if the at least one anchoring unit recited in the claim is referring to the anchoring unit recited earlier in claim 7 or is an additional anchoring unit.
Regarding claim 12, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Appropriate correction is required.
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) 1 and 5-8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Reid (already of record, US 5,455,180).
Regarding claim 1, Reid discloses microbiological testing device comprising: a growth medium support plate (agar paddle 26; see FIG. 4 of Reid, annotated and reproduced below) and a cap attached to the growth medium support plate (see FIGS. 1 and 5: cap (22,24) coupled to agar paddle (26); col. 7, ll. 42-48),
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the growth medium support plate comprising a microbiological testing area extending between a distal portion having a free end and a proximal portion-attached to the cap (agar paddle 26 is coupled to the cap (22,24) and one end and having free end; see FIGS. 1 and 4),
wherein the microbiological testing area comprises at least one recess for receiving a microbiological growth medium (see FIGS. 2 and 4: area comprising retention posts 70; col. 8, ll. 55-63),
wherein the least one recess comprises a bottom surface and at least one anchoring element protruding from the bottom surface (see FIGS. 2 and 4: area comprising retention posts 70; col. 8, ll. 55-63), and
wherein the at least one anchoring element comprises an undercut for engaging with the microbiological growth medium (see annotated FIG. 4 above; col. 8, ll. 55-63).
Regarding claim 5, Reid further discloses wherein the at least one anchoring element is selected from the group consisting of fins, pins, ribs, rods, cones, ridges, polyhedrons and plates (see FIG. 4: posts 70).
Regarding claim 6, Reid further discloses wherein the growth medium support plate comprises a plurality of anchoring elements arranged on the bottom surface (see FIG. 4: posts 70; col. 8, ll. 55-63).
Regarding claim 7, Reid further discloses wherein the plurality of anchoring elements form at least one anchoring unit on the bottom surface, wherein the at least one anchoring unit comprises 2, 3, 4, 5, 6 or more than 6 anchoring elements (see FIG. 4: posts 70; col. 8, ll. 55-63).
Regarding claim 8, Reid further discloses wherein the undercuts of the anchoring elements of one anchoring unit are each arranged in opposite or in opposing orientation to each other (see FIG. 4: at least two undercuts of posts 70 are arranged in opposite or in opposing orientation to each other; col. 8, ll. 55-63).
Therefore, Reid meets and anticipates the limitations set forth in claim(s) 1 and 5-8.
Claim(s) 1-2 and 4-8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tavarone (already of record, WO 9417175).
Regarding claim 1, Tavarone discloses microbiological testing device comprising: a growth medium support plate (FIG: 13: support 201; page 7, ll. 17-26) and a cap attached to the growth medium support plate (page 7, line 36 to line 8, line 12),
the growth medium support plate comprising a microbiological testing area extending between a distal portion having a free end and a proximal portion-attached to the cap (col. 8, ll. 4-12),
wherein the microbiological testing area comprises at least one recess for receiving a microbiological growth medium (FIGS. 13-15; page 8, ll. 24-26),
wherein the least one recess comprises a bottom surface and at least one anchoring element protruding from the bottom surface (FIGS. 13-14: protrusions (3,4); col. 5, ll. 27-34), and
wherein the at least one anchoring element comprises an undercut for engaging with the microbiological growth medium (FIG. 14: protrusions (4) are inclined with respect the plane of the surface of the recess).
Regarding claim 2, Tavarone further discloses wherein the at least one anchoring element is inclined with respect to a plane perpendicular to the bottom surface to form the undercut between the bottom surface and the at least one anchoring element (FIG. 14: protrusions (4)).
Regarding claim 4, Tavarone further discloses wherein the at least one anchoring element has free end, and wherein the free end is tapered (FIG. 14: protrusions (4)).
Regarding claim 5, Tavarone further discloses wherein the at least one anchoring element is selected from the group consisting of fins, pins, ribs, rods, cones, ridges, polyhedrons and plates (FIG. 14: protrusions (4)).
Regarding claim 6, Tavarone further discloses wherein the growth medium support plate comprises a plurality of anchoring elements arranged on the bottom surface (FIG. 14: protrusions (4)).
Regarding claim 7, Tavarone further discloses wherein the plurality of anchoring elements form at least one anchoring unit on the bottom surface, wherein the at least one anchoring unit comprises 2, 3, 4, 5, 6 or more than 6 anchoring elements (FIGS. 13-14: protrusions (4)).
Regarding claim 8, Tavarone further discloses wherein the undercuts of the anchoring elements of one anchoring unit are each arranged in opposite or in opposing orientation to each other (FIG. 14: protrusions (4)).
Therefore, Tavarone meets and anticipates the limitations set forth in claim(s) 1-2 and 4-8.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tavarone as applied to claim 2 above.
Regarding claim 3, Tavarone discloses the microbiological testing device according to claim 1. Tavarone does not explicitly disclose wherein an angle α1 between an inclined direction of the at least one anchoring element and the plane perpendicular to the bottom surface is in the range of 5 to 45°. Although the angle is not literally defined by Tavarone, the angle of said at least one anchoring element is deemed an engineering design choice since it is obvious and well within the abilities of one of ordinary skill in the art to design an anchoring element inclined to any degree according to need (i.e. to optimize the adhesion of the culture medium to the plate as suggested by Tavarone; see page 5, ll. 29-34). See § MPEP 2144.04 IV (B).
Claim(s) 9-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tavarone as applied to claim 7 above.
Regarding claim 9, Tavarone discloses the microbiological testing device according to claim 1. Tavarone discloses wherein the microbiological testing area comprises a plurality of recesses (see FIG. 13: recesses defined by sidewalls and divider 17 of support 201), wherein each recess of the plurality of recesses has a shape that is defined by wall elements framing each recess of the plurality of recesses (see FIGS. 13-15: recesses defined by sidewalls and divider (17) of support 201; page 7, ll. 24-27), wherein each recess of the plurality of recesses includes at least one anchoring unit (each recess includes at least two anchoring elements; see FIGS. 13-14). Tavarone discloses the claimed invention except for the shape of the plurality of recesses. However, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the shape of the plurality of recesses of the microbiological testing device of Tavarone with the claimed shape, since it has been held that a mere change in shape of an element is generally recognized as being within the level of ordinary skill in art when the change in shape is not significant to the function of the combination (see MPEP 2144.04 IV.B.).
Regarding claim 10, Tavarone further discloses wherein the microbiological testing area comprises a plurality of discrete fields, each discrete field being composed of a culture medium, wherein each discrete field of the plurality of discrete fields is disposed in a recess of the plurality of recesses (see FIG. 13: recesses defined by sidewalls and divider 17 of support 201, and each recess includes at least two anchoring elements and culture medium; col. 5, ll. 32-34; Claim 1).
Regarding claim 11, Tavarone further discloses wherein the culture medium of at least two discrete fields of the plurality of discrete fields has a different formulation (i.e., different culture media; col. 2, ll. 8-17; col. 7, ll. 17-26).
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tavarone as applied to claim 1 above, and further in view of Eisenberg et al. (US 4,859,586; hereinafter “Eisenberg”).
Regarding claim 12, Tavarone discloses the microbiological testing device according to claim 1. Tavarone does not explicitly disclose wherein the cap and the growth medium support plate are made as one-piece, preferably wherein said one-piece is injection molded from a thermoplastic polymer. Eisenberg discloses a microbiological testing device comprising a growth medium support plate (FIGS. 1 and 3-4: support 20; col. 3: 62-65) and a cap attached to the growth medium support plate (FIGS. 1 and 3-4: cap 15; col. 3, ll. 54-58). In view of Eisenberg, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the microbiological testing device of Tavarone such that the cap and the growth medium support plate are made as one-piece as disclosed by Eisenberg (FIGS. 1 and 3-4: cap 15; col. 3, ll. 54-58). One of ordinary skill in the art would have made said modification for the purpose of ease of manufacturing and handling of the microbiological testing device during use. Further, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the microbiological testing device of Tavarone such that the cap and the growth medium support plate are made as one-piece as disclosed by Eisenberg, since it has been held that making in one piece an article which has formerly been formed in multiple pieces involves only routine skill in the art.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Linder (US 3,849,256) discloses a microbiological testing device comprising a growth medium support plate and a cap attached to the growth medium support plate.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIBAN M HASSAN whose telephone number is (571)270-7636. The examiner can normally be reached on 8:30 AM - 5:00 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Marcheschi can be reached on 5712721374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LIBAN M HASSAN/Primary Examiner, Art Unit 1799