DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The response filed July 30, 2025, has been received and entered.
Claims 1-28 are pending.
Election/Restrictions
Applicant’s election of Group I, claims 1-11, in the reply filed on July 30, 2025, is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). It is noted that claim 28 also belongs to Group I as it depends from claim 1.
Claims 12-27 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected inventions, there being no allowable generic or linking claim.
Claims 1-11 and 28 are examined on the merits.
Claim Objections
Claim 4 is objected to because of the following informalities:
Claim 4 is objected to because the letter C in the recitation “E. Coli” should be lower-cased, and the genus names “Salmonella” and “Listeria” should be italicized.
Appropriate correction is required.
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.
Claims 1-11 and 28 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 1 is rendered indefinite by the recitation “dead particles, if any, among said captured pathogen particles are preferentially stained with the other dye” in lines 9-11. Prior to that recitation, claim 1 recites exposing the captured pathogen particles to “at least two fluorescent dyes” in line 6. The term “at least two fluorescent dyes” encompasses the embodiment of more than two fluorescent dyes, e.g., four fluorescent dyes. For that embodiment, it is unclear which one of other dyes is “the other dye” of line 11. For example, if the captured pathogen particles are exposed to three fluorescent dyes, it is unclear which of the two other fluorescent dyes (other than the dye that preferentially stains live pathogen particles) is ”the other dye” of line 11. It is unclear whether only one, some or all of the other dyes preferentially stain dead pathogen particles. Since claim 1 is indefinite, then its dependent claims, claims 2-11 and 28, are rendered indefinite. Thus, claims 1-11 and 28 are rejected under 35 U.S.C. 112(b). For the purpose of applying prior art, only one of the other dyes is being interpreted as preferentially staining dead pathogen particles (i.e. “dead pathogen particles, if any, among said captured pathogen particles are preferentially stained with another dye of the at least two fluorescent dyes”).
Claim 6 recites the limitation "said mixing of the sample with the magnetic particles" in line 2. There is insufficient antecedent basis for this limitation in the claim. In particular, parent claim 1 recites that “at least a portion” of the sample, instead of the sample, is mixed with the capture particles. Since claim 6 is indefinite, then its dependent claim, claim 7, is rendered indefinite. Thus, claims 6 and 7 are rejected under 35 U.S.C. 112(b).
Claim 8 recites the limitation "said magnetic particles" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Parent claim 1 does not recite “magnetic particles,” nor does it require that the capture particles are magnetic. Since claim 8 is indefinite, then its dependent claims, claims 9-11, are rendered indefinite. Thus, claims 8-11 are rejected under 35 U.S.C. 112(b). For the purpose of applying prior art, the capture particles are being interpreted as magnetic particles functionalized with the molecular recognition element.
Claim 11 is confusing. The claim is confusing because it is repetitive by reciting “correlating said SEM image with said fluorescent image to correlate the fluorescent and SEM images….” Also, since only one SEM image and only one fluorescent image are obtained (as set forth in parent claims 8 and 10), then it is confusing that there are fluorescent and SEM images of each of a plurality of magnetic particles (i.e. multiple fluorescent images, multiple SEM images, each for a single magnetic particle) identified in the single SEM image and single fluorescent image. For the purpose of applying prior art, the Examiner is interpreting claim 11 as reciting: The method of Claim 10, further comprising correlating a plurality of magnetic particles identified in said SEM image with a plurality of magnetic particles identified in said fluorescent image.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 9-11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
The claims have been analyzed for eligibility in accordance with their broadest reasonable interpretation. All claims are directed to a statutory category, i.e. a process (Step 1: YES).
Claims 9-10: Claim 9 recites analyzing an SEM image to identify one or more pathogens, if any, coupled to the imaged magnetic particles. This step is incorporated by claim 10. The analyzing step is drawn to an observation and evaluation which could be performed by a human using mental steps or basic critical thinking, which are types of activities that have been found by the courts to represent abstract ideas. It falls within the ‘Mental Processes’ grouping of abstract ideas. Accordingly, claims 9 and 10 recite an abstract idea (Step 2A, Prong One: YES).
This judicial exception is not integrated into a practical application. In particular, the ‘additional elements’ to the judicial exception (an abstract idea) of claim 9 are the steps of claims 1 and 8. The ‘additional elements’ to the judicial exception of claim 10 are also the additional elements of claim 9, as well as the limitation of claim 10 of using the detected fluorescent radiation to generate a fluorescent image of the pathogen particles coupled to the magnetic particles. These additional elements are directed to insignificant extra-solution activity to the abstract idea (the analysis of an SEM image) which are performed for the purpose of data gathering. Such insignificant extra-solution activities do not integrate the judicial exception (abstract idea) into a practical application (Step 2A, Prong Two: NO). Thus, claims 9 and 10 are each directed to a judicial exception, specifically an abstract idea (Step 2A: YES).
Claims 9 and 10 do not include additional elements that are sufficient to amount to significantly more than the judicial exception. The additional elements of claim 9, the steps of claims 1 and 8, are insignificant extra-solution activity to the judicial exception since they are for the purpose of data gathering. Moreover, the steps of claims 1 and 8 are well-understood, routine, or conventional activity as evidenced by the prior art. See Sledz (Journal of Plant Pathology. 2012. 94(3): 681-685) discussed in the rejection under 35 U.S.C. 102 below for anticipating claim 1. Immunomagnetic separation of bacteria is a well-understood, routine, or conventional activity that meets the first step of claim 1. See page 681, right column, third paragraph of Sledz and the abstract of Fratamico (Food Microbiology. 1992. 9: 105-113), as well as the discussion of the teachings of Sledz and Fratamico in the rejections under 35 U.S.C. 102 and 103 below. Also, the use of the commercially available LIVE/DEAD BacLight™ Bacterial Viability kit comprising two fluorescent dyes, Syto9 and propidium iodide, for distinguishing between live and dead bacteria, is a well-understood, routine, or conventional activity that meets the other steps of claim 1. See page 681, right column, last paragraph of Sledz and the first two paragraphs of LIVE/DEAD® BacLight™ Bacterial Viability Kits Product Information (Invitrogen Molecular Probes. Thermo Fisher Scientific. [online] 2004. [retrieved on 2025-10-31]. Retrieved from the Internet:< URL: https://tools.thermofisher.com/content/sfs/manuals/mp07007.pdf>). Also, obtaining an SEM image of bacteria is also well-understood, routine or conventionality activity meeting the limitation of claim 8. See paragraph [0053] of Ringuette (US 2014/0087418). Moreover, the limitation of claim 10 is well-known, routine or conventional activity given Figures 2 and 3 of Sledz. As such, the additional elements of claims 9 and 10 are well-known, routine or conventional activity. The courts have found that limitations adding insignificant extra-solution activity to the judicial exception, and limitations that are well-understood, routine, or conventional activity, are limitations that do not qualify as ‘significantly more’ when recited in a claim with a judicial exception (see MPEP 2106.05(I)(A)). Therefore, the additional elements of claims 9 and 10 do not amount to ‘significantly more’ than the recited judicial exceptions (Step 2B: NO). As such, claims 9 and 10 are not eligible subject matter under 35 U.S.C. 101.
Claim 11: Claim 11 depends from claim 9 and 10, thus including the judicial exception (abstract idea) of claims 9 and 10. Claim 11 further recites correlating an SEM image with a fluorescent image. This correlation is drawn to an observation and evaluation which could be performed by a human using mental steps or basic critical thinking, which are types of activities that have been found by the courts to represent abstract ideas. It falls within the ‘Mental Processes’ grouping of abstract ideas. Accordingly, claim 11 recites abstract ideas (Step 2A, Prong One: YES).
The additional elements to the abstract ideas of claim 11 are the same as claim 10. Therefore, the analysis under Steps 2A, Prong Two and Step 2B as performed for claim 10 above applies to claim 11. Accordingly, claim 11 is not eligible subject matter under 35 U.S.C. 101.
Notice Re: Prior Art Available Under Both Pre-AIA and AIA
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1-3 and 5-7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sledz (Journal of Plant Pathology. 2012. 94(3): 681-685).
Sledz discloses an assay that combines immunomagnetic separation and staining by the LIVE/DEAD BacLight™ Bacterial Viability Kit for the rapid detection and identification of living and dead cells of the plant-pathogenic bacterium Pectobacterium atrosepticum (Pba) in potato tuber tissue (Summary on page 681). Thus, Sledz is directed to a method of detecting a pathogen (P. atrosepticum, i.e. Pba) in a sample. To test their assay, Sledz discloses preparing suspensions of Pba cells in PBS buffer or in homogenized potato peel tissue (Summary on page 681; page 684, right column, second paragraph). These suspensions were incubated with paramagnetic beads coated with anti-Pba antibodies which are Pba-specific antibodies (Summary on page 681; page 684, right column, third paragraph). The paramagnetic beads coated with anti-Pba antibodies are directed to a plurality of capture particles (paramagnetic beads) functionalized with a molecular recognition element (anti-Pba antibodies) exhibiting specific binding to the pathogen (P. atrosepticum), meeting limitations of the plurality of capture particles recited in instant claim 1. The Pba cells bind to the beads for the isolation of Pba cells from bacterial suspensions (page 683, first paragraph through page 684, right column, first paragraph). Therefore, Sledz teaches the first step of instant claim 1 since the incubation of the bacterial suspensions with the paramagnetic beads is directed to mixing at least a portion of a sample (suspension comprising PBS buffer and Pba cells, or suspension comprising homogenized potato peel tissue and Pba cells) with a plurality of capture particles (paramagnetic beads) functionalized with a molecular recognition element (anti-Pba antibody) exhibiting specific binding to the pathogen (P. atrosepticum, i.e., Pba) so as to capture at least a portion of pathogen particles (Pba cells) when present in the sample.
Additionally, Sledz discloses that the beads with Pba cells were recovered from the suspensions with a magnet and the immobilized cells were stained with a mixture of Syto9 and propidium iodide (PI) (Summary on page 681; page 684, right column, third paragraph). This is the staining of the cells by the LIVE/DEAD BacLight™ Bacterial Viability kit (Summary on page 681; page 682, right column, second paragraph) which contains Syto9 and PI (page 681, right column, last paragraph). Syto9 is a green fluorescent stain with an excitation maximum at about 480 nm and maximum emission at 500 nm, and PI is a red fluorescent stain with an excitation maximum at 490 nm and emission maximum at 635 nm (page 681, right column, last paragraph). Furthermore, Syto9 labels live cells whereas PI penetrates only cells with damaged membranes, staining DNA and RNA (page 681, right column, last paragraph). Therefore, Sledz teaches the second step of instant claim 1 since Sledz discloses exposing captured pathogen particles (the Pba cells on the beads) to two fluorescent dyes (Syto9 and PI), which emit fluorescent radiation at two different wavelengths (500 nm, 635 nm) in response to excitation, such that live pathogen particles, if any, among said captured pathogen particles are preferentially stained with one of the dyes (Syto9) and dead pathogen particles, if any, among said captured pathogen particles are preferentially stained with the other dye (PI).
Sledz states that live and dead Pba cells were easily distinguished with a fluorescence microscope (page 684, right column, third paragraph). Figure 3 shows the fluorescence images for different samples, wherein there is green and red fluorescence excitation (legend of Figure 3 on page 684). The green fluorescence indicates living cells (excitation at 480 nm and emission at 500 nm), and red fluorescence indicates dead cells (excitation at 490 nm and emission at 635 nm) (legend of Figure 2 on page 683). The fluorescence microscope having a laser system of 488-515 nm is described (page 684, right column, first paragraph). Based on these teachings, then Sledz teaches the third through last steps of instant claim 1 since Sledz discloses irradiating the captured stained pathogen particles (the Pba cells stained with Syto9 and PI) with excitation radiation (light radiation of the fluorescence microscope for green and red fluorescence excitation) to excite the fluorescence dyes (Syto9 and PI); detecting fluorescent radiation emitted by said excited fluorescence dyes; and distinguishing live pathogen particles (live Pba cells) from dead pathogen particles (dead Pba cells) based on wavelengths of the detected fluorescent radiation (emission wavelength at 500 nm for the green fluorescence of Syto9; emission wavelength at 635 nm for the red fluorescence of PI).
As such, Sledz anticipates instant 1.
Regarding instant claims 2 and 3, since potato is a food, then the suspension comprising homogenized potato peel tissue and Pba cells of Sledz is directed to a sample comprising a food sample. Thus, instant claim 2 is anticipated. Sledz discloses that P. atrosepticum is a pectolytic plant pathogen that infects potato (page 681, left column, last paragraph). Therefore, the pathogen of Sledz is a food-borne pathogen, anticipating instant claim 3.
Regarding instant claim 5, as discussed above, the capture particles of Sledz are paramagnetic beads (directed to magnetic particles) functionalized with the molecular recognition element (anti-Pba antibody) (Summary on page 681; page 684, right column, third paragraph). Thus, instant claim 5 is anticipated.
Further regarding instant claim 6 (which depends from instant claim 5), as discussed above, after a suspension comprising Pba cells was incubated with the paramagnetic beads, the beads with Pba cells were recovered from the suspension with a magnet (Summary on page 681; page 684, right column, third paragraph). In particular, Sledz teaches that the Pba cells were extracted from the suspension with the Dynal Magnetics bead separation system (page 684, right column, third paragraph; page 684, left column, first paragraph for describing the system). Therefore, Sledz anticipates instant claim 6 since Sledz teaches applying a magnetic field (the magnetic field inherent to the magnet) to the magnetic particles (the paramagnetic particles) after the mixing of the sample (suspension comprising Pba cells) with the magnetic particles so as to concentrate said magnetic particles coupled to the pathogen particles (Pba cells).
Further regarding instant claim 7 (which depends from instant claim 6), as discussed above, Sledz discloses distinguishing live and dead Pba cells with a fluorescence microscope by green and red fluorescence excitation, which is performed after recovering the beads with Pba cells from the suspensions with a magnet (page 684, right column, third paragraph; legend of Figure 3 on page 684; Summary on page 681). Therefore, Sledz anticipates instant claim 7 since Sledz teaches that the step of irradiating the captured stained pathogen particles with excitation radiation (the light irradiation at excitation wavelength by fluorescence microscopy) is performed subsequent to the step of applying the magnetic field (the magnetic field inherent to the magnet) to cause concentration of the magnetic particles (the paramagnetic particles) coupled to the pathogen particles (Pba cells).
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.
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 4 is rejected under 35 U.S.C. 103 as being unpatentable over Sledz in view of Fratamico (Food Microbiology. 1992. 9: 105-113) and LIVE/DEAD® BacLight™ Bacterial Viability Kits Product Information (Invitrogen Molecular Probes. Thermo Fisher Scientific. [online] 2004. [retrieved on 2025-10-31]. Retrieved from the Internet:< URL: https://tools.thermofisher.com/content/sfs/manuals/mp07007.pdf>).
As discussed above, Sledz anticipates claims 1-3 and 5-7. Sledz differs from claim 4 in that Sledz does not disclose that the pathogen comprises a food-borne pathogen and comprises any of E. coli, Salmonella, and Listeria.
Fratamico discloses that Escherichia coli serotype O157:H7 is a foodborne enteric pathogen responsible for outbreaks of hemorrhagic colitis and hemolytic uremic syndrome (page 105, first paragraph). The organism appears to be a relatively common contaminant of food products of animal origin, including ground meat, raw milk, and fresh meat products (page 105, first paragraph). Fratamico teaches the application of immunomagnetic separation for the detection of E. coli O157:H7 in foods (page 106, left column, first full paragraph). Dynabeads M-450 beads, which are monosized supermagnetic polystyrene beads, were coated with rabbit antiserum against E. coli O157 (page 106, paragraph bridging left and right columns; abstract). These beads are referred to as DB-O157 (page 106, right column, first paragraph). Fratamico tested the ability of DB-O157 to recover E. coli O157:H7 from artificially inoculated meat products (page 107, left column, second paragraph). The study found that immunomagnetic separation can be used for the selective recovery of E. coli O157:H7 from foods (page 109, right column, last paragraph).
LIVE/DEAD® BacLight™ Bacterial Viability Kits Product Information describes the kits, indicating that they provide a novel two-color fluorescence assay of bacterial viability that has proven useful for a diverse array of bacterial genera (page 1, first paragraph). The BacLight kits have been tested at Molecular Probes on Escherichia coli, in which it was determined there was a good correlation between the results obtained with LIVE/DEAD BacLight Bacterial Viability Kits and those obtained with standard plate counts (page 3, left column, first full paragraph). Protocols involving live and killed cells stained by a LIVE/DEAD BacLight kit in E. coli suspensions are described on pages 4-6.
Before the effective filing date of the claimed invention, it would have been obvious to the person of ordinary skill in the art to apply the method of Sledz of combining immunomagnetic separation and staining by the LIVE/DEAD BacLight Bacterial Viability Kit (comprising a mixture of Syto9 and propidium iodide) to E. coli O157:H7 for the detection of live and dead E. coli O157:H7 cells in a food sample (e.g., meat, milk) by substituting the paramagnetic beads coated with Pba-specific antibodies of Sledz, which are specifically Dynabeads M-450 Epoxy beads (page 683, left column of Sledz), with Dynabeads M-450 beads coated with rabbit antiserum against E. coli O157 as taught in Fratamico for incubation with the food sample, and performing the subsequent steps according to Sledz (recovering beads with E. coli O157:H7 cells with a magnet, staining the immobilized cells with a mixture of Syto9 and propidium iodide, analyzing the collected cells by fluorescence microscopy; see Summary on page 681 of Sledz). One of ordinary skill in the art would have been motivated to do this because the detection of E. coli O157:H7 cells in a food sample is sought as E. coli O157:H7 is a foodborne enteric pathogen that is a relatively common contaminant of food products of animal origin, as indicated in Fratamico. Additionally, one of ordinary skill in the art would have been motivated to combine immunomagnetic separation and staining by the LIVE/DEAD BacLight Viability Kit (comprising a mixture of Syto9 and propidium iodide) for the detection and identification of living and dead cells of E. coli O157:H7 because the detection and differentiation of living and dead cells of E. coli O157:H7 would be useful since only living cells can cause infections, based on the teaching in Sledz for that utility with respect to bacterial plants pathogen (page 682, left column, first full paragraph). There would have been a reasonable expectation of applying the method of Sledz to the detection and identification of living and dead cells of another pathogen, E. coli O157:H7, in a food sample through substitution of the magnetic beads because the magnetic beads of Fratamico had successfully been used for the selective recovery of E. coli O157:H7 from food (page 109, right column, last paragraph), and LIVE/DEAD BacLight Bacterial Viability Kits are recognized as being suitable for assaying E. coli cell viability, according to LIVE/DEAD® BacLight™ Bacterial Viability Kits Product Information. Therefore, instant claim 4 is rendered obvious.
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over Sledz, Fratamico, and LIVE/DEAD® BacLight™ Bacterial Viability Kits Product Information as applied to claim 4 above, and further in view of Park (Processes. 2020. 8: 908. 11 pages. Published August 1, 2020).
As discussed above, Sledz in view of Fratamico and LIVE/DEAD® BacLight™ Bacterial Viability Kits Product Information renders obvious claim 4. The references differ from claim 28 in that they do not expressly disclose suspending the sample (the food sample) in a solution having a detergent concentration.
Park discloses a method which involves the immunomagnetic separation of a target pathogenic bacteria, E. coli O157:H7, from food samples (abstract; page 2, last paragraph). In the study of Park, three different food samples, milk, ground beef, and cabbage, were artificially spiked with E. coli O157:H7 (page 3, first paragraph), placed in a stomacher bag, mixed with buffered peptone water (BPW) containing Tween-20, and homogenized (page 3, first paragraph). In the case of the ground beef and cabbage food sample, the solid matrix after the homogenization step was separated by a filter (page 3, first paragraph). Then, anti-E. coli O157 magnetic beads were added to the stomacher bag containing the homogenized aqueous food samples for incubation (page 3, first paragraph). Afterwards, the incubated food samples with the target-specific immunomagnetic beads were injected into an immunomagnetic separation (IMS) device in which magnetic bars were used to isolate the immunomagnetic beads along with the target bacteria (E. coli O157:H7) from the sample solution (page 3, first and second paragraphs). The surfactant Tween-20, acting as a blocking agent for immunodetection and as a solubilizing agent, was used for the pretreatment of the food samples in order to enhance sample homogenization and reduce nonspecific reactions of antibodies and unbound food moieties (page 6, last paragraph).
Before the effective filing date of the claimed invention, it would have been obvious to the person of ordinary skill in the art to apply the pretreatment steps disclosed by Park, which include mixing a food sample containing E. coli O157:H7 with buffered peptone water containing the surfactant Tween-20, to the food sample before incubation with the magnetic beads when performing the method rendered obvious by Sledz in view of Fratamico and LIVE/DEAD® BacLight™ Bacterial Viability Kits Product Information. One of ordinary skill in the art would have been motivated to do this in order to enhance sample homogenization and reduce nonspecific reactions of antibodies and unbound food moieties. There would have been a reasonable expectation of successfully performing immunomagnetic separation of E. coli O157:H7 by incorporating the pretreatment steps of Park into the method rendered obvious by Sledz in view of Fratamico and LIVE/DEAD® BacLight™ Bacterial Viability Kits Product Information because said pretreatment steps were suitable for the preparation of food samples containing E. coli O157:H7 to magnetic beads functionalized with an antibody providing selectivity for E. coli O157:H7 for separation of E. coli O157:H7, as demonstrated in Park (abstract and page 3, first paragraph). Buffered peptone water containing Tween-20 is directed to a solution having a detergent (Tween-20) concentration (as the detergent is present, then the solution has a detergent concentration), and mixing the food sample with said buffered peptone water is directed to suspending the food sample in a solution having a detergent concentration. Therefore, instant claim 28 is rendered obvious.
Claims 8-11 are rejected under 35 U.S.C. 103 as being unpatentable over Sledz in view of Ringuette (US 2014/0087418).
As discussed above, Sledz anticipates claims 1-3 and 5-7. Sledz differs from claim 8 in that Sledz does not expressly disclose introducing the paramagnetic beads (directed to ‘magnetic particles’) coupled to the Pba cells (directed to ‘pathogen particles’) into a scanning electron microscope (SEM) and obtaining an SEM image of at least a portion of the paramagnetic beads (magnetic particles). Sledz further differs from claim 9 in that Sledz does not expressly disclose analyzing the SEM image to identify one or more pathogens, if any, coupled to the imaged paramagnetic beads (magnetic particles). Sledz meets the limitation of claim 10 since Sledz discloses images using a fluorescence microscope of the green and red fluorescence excitation of the Pba cells on the paramagnetic beads (Figure 3 on page 684; page 684, right column, third paragraph), but Sledz does not meet the limitations of claims 8 and 9 incorporated by claim 10. Sledz further differs from claim 11 in that Sledz does not expressly disclose correlating a plurality of paramagnetic beads (magnetic particles) identified in the SEM image with a plurality of paramagnetic beads (magnetic particles) identified in the fluorescent image (image of Sledz obtained using a fluorescence microscope).
Ringuette discloses that cultures of E. coli and S. epidermidis were stained with LIVE/DEAD BacLight viability kit in which Syto9 and propidium iodide were used for determination of viable bacteria (paragraph [0052]). The fluorescent bacteria were visualized using fluorescence (paragraph [0052]). Bacterial counts were performed by counting individual fluorescent spots within three random fields of view per sample at a certain magnification (paragraph [0053]). SEM analysis revealed that a fluorescence spot of a certain area was representative of one bacterium, making it feasible to count individual cells (paragraph [0053]). Large, irregular shaped fluorescence stains were not counted (paragraph [0053]). Dividing propidium iodide red fluorescence by Syto9 green fluorescence staining of individual bacteria quantitated lethality (paragraph [0053]).
Before the effective filing date of the claimed invention, it would have been obvious to the person of ordinary skill in the art to introduce the paramagnetic beads coupled to Pba cells into an SEM in order to obtain an SEM image of the paramagnetic beads coupled to the Pba cells for comparison with the fluorescent image of Pba cells coupled to the paramagnetic beads to determine through SEM analysis what areas of the fluorescent image are directed to individual Pba cells, when performing the method of Sledz. One of ordinary skill in the art would have been motivated to do this for improving the accuracy of determining the number of live and dead Pba cells in the suspension (sample). Since the Pba cells are coupled to the paramagnetic beads, then the comparison of the SEM image with the fluorescent image includes correlating each of the plurality of paramagnetic beads identified in the SEM image with each of the plurality of paramagnetic beads identified in the fluorescent image. There would have been a reasonable expectation of obtaining an SEM image of the paramagnetic beads coupled to Pba cells because bacterial cells stained with Syto9 and propidium iodide were successfully observed through SEM analysis in Ringuette. Therefore, instant claims 8-11 are rendered obvious.
Conclusion
No claims are allowed.
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Sef
/SUSAN E. FERNANDEZ/ Examiner, Art Unit 1651