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 .
Withdrawal of Rejections
The response and amendments filed on 11/25/2025 are acknowledged. Any previously applied minor objections and/or minor rejections (i.e., formal matters), not explicitly restated here for brevity, have been withdrawn necessitated by Applicant’s formality correction and/or amendments. For the purposes of clarity of the record, the reasons for the Examiner’s withdrawal, and/or maintaining, if applicable, of the substantive or essential claim rejections are detailed directly below and/or in the Examiner’s Response to Arguments section.
Briefly, the previous claim rejections under 35 U.S.C. 112(b) for indefiniteness have been withdrawn necessitated by Applicant’s arguments.
The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
New Grounds of Rejection Necessitated by Amendments
Claim Rejections - 35 USC § 102, Anticipation
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1 and 3-6, are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Haquette (US 2006/0292552; Date of Publication: December 28, 2006 – previously cited).
Haquette’s general disclosure pertains to “a method for the detection and multiplex quantification of analytes in a sample, using functionalised microspheres, whereby said microspheres are magnetised after the sample has been brought into contact therewith. The inventive method is particularly suitable for the detection and multiplex quantification of several analytes by means of flow cytometry” (see, e.g., Haquette, abstract). Moreover, Haquette discloses that the microspheres can be functionalized with, for example, antibodies that bind surface structures of microorganisms in liquid samples (see, e.g., Haquette, [0120]-[0121]). Furthermore, Haquette teaches that the antibody can contain a fluorescent label so that the sample can be analyzed using flow cytometry in order to determine the number of analytes within the sample (see, e.g., Haquette, [0120]-[0122]).
Regarding claim 1 pertaining to the method of analyzing a fluid sample, Haquette teaches bringing populations of functionalized microspheres into contact with a sample (see, e.g., Haquette, [0120]). Haquette teaches, for example, “that there are three populations of latex microspheres (three analytes to be detected and/or quantified) of different sizes” (see, e.g., Haquette, [0120]). Furthermore, Haquette teaches that “Each of the populations carries at its surface a compound B which is a trapping antibody specific for one of the three analytes sought. In this illustration, it is also considered that the compounds A are biotin molecules which are grafted to the surface of the microspheres so as to allow the binding of the magnetic particles” (see, e.g., Haquette, [0120]). Moreover, Haquette teaches that “When the microspheres are mixed with the sample, each of the analytes sought will bind to the population carrying the specific antibody” (see, e.g., Haquette, [0120]). Haquette teaches “The microsphere populations are subsequently brought into contact with a mixture of three types of conjugates, each type of conjugate being represented in this scheme by a compound C which is a specific antibody carrying a fluorescent label” (see, e.g., Haquette, [0121]). Haquette teaches “ The microspheres thus made magnetizable can be separated from the other interfering products of the medium by means of one or more magnetization steps alternating with one or more steps consisting in washing with an appropriate buffer” (see, e.g., Haquette, [0120]). Haquette teaches that “the microspheres associated with the fluorochrome can be analyzed. In the present case, they are analyzed by flow cytometry according to their size” (see, e.g., Haquette, [0122]). Haquette teaches that when analyzing the samples with flow cytometry, the number of events for each of the beads is counted (see, e.g., Haquette, [0259], Figures 34-36, 39-40); therefore, one of ordinary skill in the art would understand that each of these events is correlated to the number of beads counted.
Regarding claim 3 pertaining to the magnetic beads, Haquette teaches that magnetic particles are added to the medium which causes them to bind to the surface of the microsphere (see, e.g., Haquette, [0120]). Furthermore, Haquette teaches “the microspheres thus made magnetizable can be separated from the other interfering products of the medium by means of one or more magnetization steps alternating with one or more steps consisting in washing with an appropriate buffer” (see, e.g., Haquette, [0120]).
Regarding claim 4 pertaining to fluorescence, Haquette teaches “The microsphere populations are subsequently brought into contact with a mixture of three types of conjugates, each type of conjugate being represented in this scheme by a compound C which is a specific antibody carrying a fluorescent label” (see, e.g., Haquette, [0121]). Furthermore, Haquette teaches that an “optical method for detecting and counting particles. Flow cytometry is particularly suitable for this type of analysis” (see, e.g., Haquette, [0086]). Moreover, Haquette teaches “Several light parameters can be measured simultaneously on each of the microspheres: i) laser light scattering/diffraction parameters in order to characterize/evaluate the size and the structure (granularity, density) thereof, firstly, and ii) secondly, several fluorescence parameters, that can be differentiated by their wavelengths and are generally associated with the presence of fluorochromes, or fluorescent labels, intrinsically present in the microsphere, or associated with the specific binding of conjugates” (see, e.g., Haquette, [0087]-[0089]).
Regarding claim 5 pertaining to the fluid sample, Haquette teaches that the sample may be present in a liquid and may contain any microorganism (see, e.g., Haquette, [0044]-[0045]). One of ordinary skill in the art would readily understand that the sample, being a liquid, can include water.
Regarding claim 6 pertaining to the fluorescence marker, Haquette teaches that fluorescein, which is a dye that differentiates live and dead microorganisms, can be used as a dye (see, e.g., Haquette, [0092]).
Examiner’s Response to Arguments
Regarding Applicant’s arguments pertaining to amended claim 8 not being taught by Haquette, this argument is moot because, as discussed in the 103 rejection below, Haquette was not used to teach the newly inserted limitation in independent claim 8 “wherein, in each of the at least two bead groups, the target component in the fluid binds to at least some of the plurality of surface-functionalized beads”. Furthermore, newly cited Lindmo was used in the 103 rejection below to teach this limitation. Therefore, Applicant’s argument that Haquette does not teach the newly inserted limitation in independent claim 8 is moot because Lindmo was used in the 103 rejection below to teach this limitation.
New Grounds of Rejection Necessitated by Amendments
Claim Rejections - 35 USC § 103, Obviousness
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 2 and7are rejected under 35 U.S.C. 103 as being unpatentable over Haquette as applied to claims 1 and 3-6above, and further in view of Cormican (EP2009110; Date of Publication: December 31, 2008 – cited in the IDS filed on 04/07/2023 – previously cited).
The teachings of Haquette are discussed above as it pertains to a method of analyzing a fluid sample to determine the amount of a target component by employing different sized microspheres that contain different functional groups.
Regarding claims 2 and 10 pertaining to the determined number of beads in the first and second groups of beads that includes the target component, Haquette teaches that when analyzing the samples with flow cytometry, the number of events for each of the beads is counted (see, e.g., Haquette, [0259], Figures 34-36, 39-40); therefore, one of ordinary skill in the art would understand that each of these events is correlated to the number of beads counted.
Regarding claim 7 pertaining to the live and dead microorganisms, Haquette teaches that fluorescein, which is a dye that differentiates live and dead microorganisms, can be used as a dye (see, e.g., Haquette, [0092]).
However, Haquette does not teach: determining a most probable number (MPN) of the target component in the fluid (claim 2); or determining the most probable number (MPN) of the live microorganisms in the fluid sample and the most probable number (MPN) of the dead microorganisms in the fluid sample (claim 7).
Cormican’s general disclosure pertains to “Rapid enumeration of antimicrobial resistant organisms using the Most Probable Number method. The invention provides processes that can be used to examine the occurrence of antimicrobial resistant organisms in water and effluent, and other liquidised substances such as a suspension, e.g. food, soil, faeces etc. The method is capable of detecting antimicrobial resistant microbes in a number of samples simultaneously” (see, e.g., Cormican, abstract). Moreover, Cormican discloses “The Most Probable Number (MPN) method is routinely used worldwide in the field of Environmental Microbiology to detect and enumerate coliforms, E. coli and Enterococci in water samples. The MPN method is not an exact count of the numbers of bacteria present in a given sample, but rather an estimate of the most probable number of bacteria in a particular volume of sample. Traditionally this is performed using three sets of tubes with 3 or 5 tubes per set. The first set generally contains 10ml of double strength broth and each tube in the set is inoculated with 10ml of sample. The second and third sets of tubes contain 10ml of single strength broth and each tube in these sets is inoculated with 1ml and 0.1ml of sample respectively. Following incubation the pattern of growth is compared with a table of statistically determined most probable numbers” (see, e.g., Cormican, [0011]).
Regarding claim 2 pertaining to the MPN of the target component, Cormican teaches a method of determining the most MPN of a microorganisms present in a solution by incubating the microorganisms with an indicator, such as o-nitrophenyl-beta-D-galactopyranoside (ONPG) and 4-methylumbeilliferyl-beta-D-glucuronide (MUG), which is metabolized by the microorganism and creates fluorescence (see, e.g., Cormican, [0023]). Furthermore, Cormican teaches that “the MPN of organisms present determined by comparison with a predefined table” (see, e.g., Cormican, [0025]). Moreover, Cormican teaches “The method is equally effective for aqueous samples, such as water, seawater, environmental, effluent and even aqueous biological samples such as blood, urine and sputum” (see, e.g., Cormican, [0026]).
Regarding claim 7 pertaining to the MPN of the live and dead microorganisms, Cormican teaches a method of determining the most MPN of a microorganisms present in a solution by incubating the microorganisms with an indicator, such as o-nitrophenyl-beta-D-galactopyranoside (ONPG) and 4-methylumbeilliferyl-beta-D-glucuronide (MUG), which is metabolized by the microorganism and creates fluorescence (see, e.g., Cormican, [0023]). Moreover, Cormican teaches incubating the microorganisms with antibiotics to determine the proportion of antimicrobial resistant organisms in the sample, compared to a control sample (see, e.g., Cormican, [0022]). One of ordinary skill in the art would recognize that treating the microorganisms with antibiotics will results in some of the microorganisms dying, while some living, if they are resistant. Therefore, Cormican is determining the MPN of live and MPN of dead microorganisms in the sample.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply Haquette’s method of analyzing a fluid sample by determining the amount of a target component in a fluid sample through the use of magnetic, functionalized bead groups, to Cormican’s method of determining the MPN of the target component. One would have been motivated to do so because Cormican teaches that determining the MPN is a rapid test (see, e.g., Cormican, [0013]), that involves incubating the microorganisms with an indicator, such as o-nitrophenyl-beta-D-galactopyranoside (ONPG) and 4-methylumbeilliferyl-beta-D-glucuronide (MUG), which is metabolized by the microorganism and creates fluorescence in order to determine the number of microorganisms in the sample (see, e.g., Cormican, [0023]). Furthermore, Haquette teaches a method of analyzing a microorganism fluid sample, wherein the microorganisms are “tagged” with microspheres that are functionalized for binding to specific structures on the microorganisms (see, e.g., Haquette, [0120]-[0122]). Moreover, Haquette teaches that the microspheres are fluorescently tagged so that a count of the number of target components can be established using flow cytometry (see, e.g., Haquette, [0120]-[0122]). Therefore, based on the teachings of Haquette and Cormican, it would have been obvious to apply Haquette’s method of analyzing a fluid sample to Cormican’s method of determining the MPN of a microorganism because this would allow one to determine the number of microorganisms in a sample by measuring the fluorescence of the microorganism using flow cytometry. One would have expected success because Haquette and Cormican both teach methods of measuring the number of microorganisms in a liquid sample.
Claims 8-9 and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Haquette (US 2006/0292552; Date of Publication: December 28, 2006 - previously cited) in view of Lindmo (Immunometric assay by flow cytometry using mixtures of two particle types of different affinity; 1990 – newly cited).
Haquette’s general disclosure is discussed above.
Regarding claim 8 pertaining to the method of analyzing a fluid sample, Haquette teaches bringing populations of functionalized microspheres into contact with a sample (see, e.g., Haquette, [0120]). Haquette teaches, for example, “that there are three populations of latex microspheres (three analytes to be detected and/or quantified) of different sizes” (see, e.g., Haquette, [0120]). Furthermore, Haquette teaches that “Each of the populations carries at its surface a compound B which is a trapping antibody specific for one of the three analytes sought. In this illustration, it is also considered that the compounds A are biotin molecules which are grafted to the surface of the microspheres so as to allow the binding of the magnetic particles” (see, e.g., Haquette, [0120]). Moreover, Haquette teaches that “When the microspheres are mixed with the sample, each of the analytes sought will bind to the population carrying the specific antibody” (see, e.g., Haquette, [0120]). Haquette teaches “The microsphere populations are subsequently brought into contact with a mixture of three types of conjugates, each type of conjugate being represented in this scheme by a compound C which is a specific antibody carrying a fluorescent label” (see, e.g., Haquette, [0121]). ]). Haquette teaches that “the microspheres associated with the fluorochrome can be analyzed. In the present case, they are analyzed by flow cytometry according to their size” (see, e.g., Haquette, [0122]).
Regarding claim 9 pertaining to determining the number of beads, Haquette teaches that when analyzing the samples with flow cytometry, the number of events for each of the beads is counted (see, e.g., Haquette, [0259], Figures 34-36, 39-40); therefore, one of ordinary skill in the art would understand that each of these events is correlated to the number of beads counted.
Regarding claims 11-12 pertaining to the bead groups, Haquette teaches, for example, “that there are three populations of latex microspheres (three analytes to be detected and/or quantified) of different sizes” (see, e.g., Haquette, [0120]).
Regarding claim 13 pertaining to separating and analyzing the beads, Haquette teaches “The microspheres thus made magnetizable can be separated from the other interfering products of the medium by means of one or more magnetization steps alternating with one or more steps consisting in washing with an appropriate buffer” (see, e.g., Haquette, [0120]). Haquette teaches that “the microspheres associated with the fluorochrome can be analyzed. In the present case, they are analyzed by flow cytometry according to their size” (see, e.g., Haquette, [0122]).
However, Haquette does not teach: wherein, in each of the at least two bead groups, the target component in the fluid binds to at least some of the plurality of surface-functionalized beads (claim 8).
Lindmo’s general disclosure relates to “An improved dynamic range in a particle based flow cytometric immunoassay for carcinoembryonic antigen (CEA) was obtained using a binary mixture of two distinguishable particle types, namely particles of 7 and 10 µm diameter that were distinguishable by their light scattering characteristics in the flow cytometer. The two particle types were coated with antibody of the same specificity but different affinity” (see, e.g., Lindmo, abstract). Moreover, Lindmo discloses measuring fluorescence by flow cytometry to determine the fluorescence intensity of the two particles (see, e.g., Lindmo, abstract). Furthermore, Lindmo discloses “The two particle types are distinguishable in the flow cytometer, and therefore the particle-associated fluorescence can be determined separately for each particle type. At low antigen concentrations, binding will preferentially occur on the high affinity particles. On the other hand, the low affinity particles will show an increase in binding with increasing antigen concentration even after binding to the high affinity particles has been saturated. This results in an increased dynamic range for the assay, without compromising the high sensitivity provided by the high-affinity particle” (see, e.g., Lindmo, Introduction, pg. 184).
Regarding claim 8 pertaining to the two bead groups binding the target component, Lindmo teaches two particles, wherein the two particles have different diameters that are 7 and 10 µm, respectively (see, e.g., Lindmo, Materials and method, “Microsphere particles”, pg. 184). Moreover, Lindmo teaches coating the two particles in antibodies against carcinoembryonic antigen (CEA) (see, e.g., Lindmo, Materials and method, “Monoclonal antibodies”, pg. 184); therefore, the two particles are coated in the antibody and have the same specificity. Moreover, the different antibodies have different association constants resulting in different affinities for the CEA antigen (see, e.g., Lindmo, Materials and Methods, “Monoclonal antibodies”, pg. 184). Furthermore, the particles coated with the anti-CEA antibodies were analyzed by flow cytometry, wherein the high affinity particles exhibited higher fluorescence than the larger, low affinity particles (see, e.g., Lindmo, “Results”, pg. 186).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to employ Harquette’s method of detecting and analyzing analyte(s) with magnetic functionalized microspheres, wherein the microspheres are varying sizes and coated with antibodies against the same antigen (i.e., have the same specificity), but wherein the antibodies have different affinities for the antigen, as taught by Lindmo. One would have been motivated to do so because Lindmo teaches “The two particle types are distinguishable in the flow cytometer, and therefore the particle-associated fluorescence can be determined separately for each particle type. At low antigen concentrations, binding will preferentially occur on the high affinity particles. On the other hand, the low affinity particles will show an increase in binding with increasing antigen concentration even after binding to the high affinity particles has been saturated. This results in an increased dynamic range for the assay, without compromising the high sensitivity provided by the high-affinity particle” (see, e.g., Lindmo, Introduction, pg. 184). Furthermore, Lindmo teaches “a binary mixture of two distinguishable particle types, namely particles of 7 and 10 µm diameter that were distinguishable by their light scattering characteristics in the flow cytometer. The two particle types were coated with antibody of the same specificity but different affinity” (see, e.g., Lindmo, abstract). Moreover, Haquette teaches a method of analyzing a microorganism fluid sample, wherein the microorganisms are “tagged” with microspheres that are functionalized for binding to specific structures on the microorganisms (see, e.g., Haquette, [0120]-[0122]). Moreover, Haquette teaches that the microspheres are fluorescently tagged so that a count of the number of target components can be established using flow cytometry (see, e.g., Haquette, [0120]-[0122]). Therefore, based on the teachings of Haquette and Linmo, it would have been obvious to produce surface functionalized microparticles, wherein the particles are different sizes and have the same specificity but different affinities for binding to a specific target protein bcause this would allow for different binding preferences based on the amount of the target protein (i.e., antigen) available. One would have expected success because Haquette and Lindmo both teach surface functionalized microparticles of various sizes for binding to target proteins.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Haquette and Lindmo as applied to claims 8-9 and 11-13 above, and further in view of Cormican (EP2009110; Date of Publication: December 31, 2008 – cited in the IDS filed on 04/07/2023 – previously cited).
The teachings of Haquetee and Lindmo, herein referred to as modified-Haquette-Lindmo, are discussed above as it pertains to surface functionalized microparticles for binding to antigens.
However, modified-Haquette-Lindmo does not teach: determining a most probable number (MPN) of the target component in the fluid (claim 10);
Cormican’s general disclosure is discussed above.
Regarding claim 10 pertaining to determining the MPN of the target component, Cormican teaches a method of determining the most MPN of a microorganisms present in a solution by incubating the microorganisms with an indicator, such as o-nitrophenyl-beta-D-galactopyranoside (ONPG) and 4-methylumbeilliferyl-beta-D-glucuronide (MUG), which is metabolized by the microorganism and creates fluorescence (see, e.g., Cormican, [0023]). Furthermore, Cormican teaches that “the MPN of organisms present determined by comparison with a predefined table” (see, e.g., Cormican, [0025]). Moreover, Cormican teaches “The method is equally effective for aqueous samples, such as water, seawater, environmental, effluent and even aqueous biological samples such as blood, urine and sputum” (see, e.g., Cormican, [0026]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply modified-Haquette-Lindmo’s method of analyzing a fluid sample by determining the amount of a target component in a fluid sample through the use of magnetic, functionalized bead groups, to Cormican’s method of determining the MPN of the target component. One would have been motivated to do so because Cormican teaches that determining the MPN is a rapid test (see, e.g., Cormican, [0013]), that involves incubating the microorganisms with an indicator, such as o-nitrophenyl-beta-D-galactopyranoside (ONPG) and 4-methylumbeilliferyl-beta-D-glucuronide (MUG), which is metabolized by the microorganism and creates fluorescence in order to determine the number of microorganisms in the sample (see, e.g., Cormican, [0023]). Furthermore, modified-Haquette-Lindmo teaches a method of analyzing a microorganism fluid sample, wherein the microorganisms are “tagged” with microspheres that are functionalized for binding to specific structures on the microorganisms (see, e.g., Haquette, [0120]-[0122]). Moreover, modified-Haquette-Lindmo teaches that the microspheres are fluorescently tagged so that a count of the number of target components can be established using flow cytometry (see, e.g., Haquette, [0120]-[0122]). Additionally, modified-Haquette-Lindmo teaches that the functionalized microspheres can be different sizes and bind to the same target component with varying affinities (see, e.g., Lindmo, abstract) Therefore, based on the teachings of modified-Haquette-Lindmo and Cormican, it would have been obvious to apply modified-Haquette-Lindmo’s method of analyzing a fluid sample to Cormican’s method of determining the MPN of a microorganism because this would allow one to determine the number of microorganisms in a sample by measuring the fluorescence of the microorganism using flow cytometry. One would have expected success because modified-Haquette-Lindmo and Cormican both teach methods of measuring the number of microorganisms in a liquid sample.
Examiner’s Response to Arguments
Regarding Applicant’s arguments that the dependent claims are allowable because independent claims 1 and 8 are allowable are not persuasive because, as discussed above, independent claim 1 is anticipated by Haquette, and independent claim 8 is obvious in view of Haquette and Lindmo. Furthermore, as discussed above, Cormican was used to teach the limitations recited in dependent claims 2, 7, and 10. Therefore, dependent claims 2, 7, and 10 are not allowable because independent claims 1 and 8 have been rejected, as discussed above.
Conclusion
Claims 1-13 are rejected.
No claims are allowed.
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 nonprovisional extension fee (37 CFR 1.17(a)) 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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/NATALIE IANNUZO/Examiner, Art Unit 1653
/SHARMILA G LANDAU/Supervisory Patent Examiner, Art Unit 1653