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 without traverse of group I, claims 1-8 and species first and second toehold, claim 6 in the reply filed on 11/17/2025 is acknowledged.
Claims 7-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/17/2025.
Claim Rejections - 35 USC § 103
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.
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.
Claims 1-2, 4-6 are rejected under 35 U.S.C. 103 as being unpatentable over Beck (2021, cited on IDS) in view of Lee (US20210080333A1).
Berk teaches a method of DNA tag that is detected by toehold-mediated strand displacement reaction. Berk teaches a DNA sequence with one strand that is not full length complementary to the other strand is displaced upon addition of the full-length counterpart (see fig 1A). Berk teaches sequence specific strand displacement assays are arrayed on a paper ticket. Upon exposure to an appropriate taggant results in a fluorescent spot and only correct DNA sequence will create validating pattern which can be done by a smartphone or eye. Berk teaches double stranded polynucleotide complexes containing a fluorophore are attached to a substrate (see fig 1B) (claim 5). Berk teaches multiple taggants (multiple polynucleotide strands) (see fig 1B) (claim 4). Berk teaches taggants are included in food products (see pg. 19476) however Berk does not teach using taggants to detect temperature change.
However it was known in the art use nucleic acids to detect temperature changes. Lee teaches a DNAzyme and PNA complex that detects target temperature. Lee teaches DNAzyme/PNA complex is dissociated at a certain temperature. Lee teaches DNA duplex is broken at elevated temperatures and melting kinetics of DNA is correlated to increased temperature, the melted DNA acts as a temperature indicator (see para 3). Lee teaches fluorescence intensity can decrease as temperature increases in a DNA melting curve (see para 103).
Therefore it would have been prima facie obvious to modify the method of Berk to detect a taggant in a food item to include monitoring of temperature of a food item as taught by Lee to yield a predictable assay to determine temperature of food for food safety. The ordinary artisan would have modified the strand displacement assay as taught by Beck to include a DNA complex comprising a duplex that can be broken up at a specific temperature to monitor temperature of the food item. Specifically Lee teaches DNA duplexes can be modified for specific melting temperature (threshold temperatures) and the ordinary artisan would have modified the taggant of Beck to include DNA duplex that could monitor temperature and include modification of structure at a specific melting temperature (threshold temperature) as taught by Lee. Additionally in performing the method of Beck in view of Lee the ordinary artisan would have been motivated to include monitoring decreased fluorescence to determine if the food was exposed or not exposed to a threshold temperature. The fluorescence will either increase or decrease depending on temperature and duplex formation and the ordinary artisan would have monitored not only increased fluorescence, as taught by Beck but decreased fluorescence as taught by Lee to identify food that has gone beyond the temperature threshold and thus modified its structure.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Beck (2021, cited on IDS) in view of Lee (US20210080333A1) as applied to claims 1-2 and 4-6 above, and further in view of Lambert (2000, cited on IDS).
Beck in view of Lee is set forth in section 7 above. Beck in view of Lee does not teach a taggant in an aqueous core of an edible microcapsule.
However the art teaches nanocapsules containing aqueous core for delivery of nucleic acids. Lambert teaches a 20mer ODN was encapsulated in an aqueous core. Lambert teaches a nanocapsule comprising the ODN with an aqueous cores (see nanocapsule preparation and ODN encapsulation).
Therefore it would have been prima facie obvious to one of ordinary skill in the art to modify Beck in view of Lee to include nanocapsules containing an aqueous core for the DNA taggant for the expected benefit of ingestion of the DNA taggant as knonw in the art and taught by Lambert.
Conclusion
No claims are allowable.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAE L BAUSCH whose telephone number is (571)272-2912. The examiner can normally be reached M-F 9a-4p.
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/SARAE L BAUSCH/Primary Examiner, Art Unit 1699
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