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 .
Status of the Claims
Claims 1-10 are pending in the application and are the subject of this office action
Claim Interpretation
It is noted that claim 1 is specifically directed to “A synchronous multicomponent analysis method for testing ECL immunoassay-nucleic acid based on spectral resolution principle” (emphasis added). As such, claim 1 is understood to be directed to an analysis method using the recited ECL multicomponent analysis sensor and not to a method of producing, establishing, or synthesizing the recited sensor and its associated components and reagents. In a case such as this, the method of producing the sensor and the analysis method of using the sensor are understood to be independent and distinct because a method of making and a method of using are generally understood to not overlap in scope and not be obvious variants of one another, given that their required method steps and goals are different (i.e. making a sensor vs. using a sensor). Further, the inventions are not capable of use together because they have materially different design, mode of operation, function, and effect (i.e. on method results in production of a sensor while the other is an analysis method that uses the sensor).
As such, limitations relevant to the method of making the sensor which is employed in the claimed analysis method are not interpreted herein to further limit the analysis method itself, and do not serve to limit the analysis method over the prior art, since those limitations are relevant to a materially different process.
Claim Rejections - 35 USC § 112(b)
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 1-10 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 rejected over the recitation “A synchronous multicomponent analysis method for testing ECL immunoassay-nucleic acid based on spectral resolution principle” which is not grammatically correct and thus lacks clarity, such that the meaning and scope of what is required by the limitation is unclear. Clarification is required
The recitation of “maximum radiation wavelengths” in claim 1 renders the claim indefinite. These are recited as “maximum radiation wavelengths of the ECL multicomponent analysis sensor” wherein it is not clear what it means for an ECL multicomponent analysis sensor to have maximum radiation wavelengths. It appears that the recited wavelengths may refer to maximum emission wavelengths of two particular labels used in the sensor. Clarification is required.
Step i) of claim 1 is unclear and indefinite due to the recitation of the components of the ECL multicomponent analysis sensor. The analysis sensor is recited to include a number of different components and is also recited to include itself, which is confusing and unclear. Additionally, the phrasing of the recitation of components is confusing and unclear, such that it is not clear what certain components are and how (or if) certain components are related to one another. Clarification is required.
Claims 1 and 3 are rejected as indefinite because it recites abbreviations which are not spelled-out in their first use in the claims (e.g. CEA-Ag, CEA-Ab1, CEA-Ab2), such that it is unclear exactly what these abbreviations refer to or require. Appropriate correction is required.
Claim 1 is rejected as indefinite because the phrasing “capturing entire process of ECL by collecting all photons using an exposure imagine method, and total spectrum is obtained based on dispersion of all emitted ECL photons” is not grammatically correct and lacks clarity. Additionally, it is not clear how one or ordinary skill in the art would know or be able to confirm that all photons have been collected, since what exactly is encompassed by “all photons” is not explicitly defined or limited and since once would generally expect that at least some small portions of photons might escape collection. Additionally, the metes and bounds of the “entire process of ECL” are unclears, as there is not a clearly established start and end step of the recited ECL process, such that it is unclear how one would determine whether all photons have been collected and whether the “entire process of ECL” has been captured. Clarification is required.
In claim 1 the meaning of the phrase “total spectrum is obtained” is unclear. A total spectrum of what? Clarification is required.
In claim 1, the phrasing “based on” renders the claim indefinite because it does not establish a clear or defined relationship between the recited components. Step iii) recites “total spectrum is obtained based on dispersion of all emitted ECL photons” but what relationship this actually requires between the total spectrum and the dispersion of emitted photons is not clear, such that the metes and bounds of the claim are not clearly defined. Clarification is required.
In claims 1 and 10, it is unclear exactly what “a working curve of CEA testing” or “a working curve of Tp53 testing” refers to. Clarification is required.
Claim 3 is vague regarding “the water-soluble MPA-capped AuNCs”. There is no prior introduction of “water-soluble MPA-capped AuNCs in the claims, therefore there is insufficient antecedent basis for this limitation in the claims.
Claim 3 is indefinite regarding “water-soluble CIS@ZnS NCs” because it is unclear whether this recitation refers to the same CIS@ZnS NCs which were previously introduced in the claims, whether this refers to a particular subset of those NCs, or whether it refers to a distinct population of NCs. clarification is required.
Claim 4 is rejected as indefinite over the recitation of “an activated Au electrode” in step iii) wherein the term does not explicitly refer back to a term or an electrode which has been previously introduced, such that it is unclear whether this recitation refers to a new and different electrode or whether it refers to an Au electrode which has been previously introduced in the claims.
Claim 7 is vague regarding “the probe DNA”. There is prior introduction of “a probe DNA fragment” but not of “a probe DNA”, as such, it is unclear whether these refer to the same or different components. Clarification is required.
The formatting of claim 10 is unclear. The claim is divided into numerically labeled sections, but it is not clear how these sections relate to each other. For example, sections I and II appear to discuss establishing standard curves for a device, while section III recites establishing a sensor, such that it is unclear how one would perform the implied method steps of sections I and II prior to “establishing the sensor” in section III. Additionally, section III appears to be mostly redundant with section I and with many of the limitations already recited in claim 1, such that the function meaning of these limitations is somewhat unclear. Clarification is required.
Dependent claims 2-10 are rejected as indefinite because they depend from a rejected claim and fail to remedy its deficiencies.
Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 3-9 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claims 3-9 all depend from claim 1 which is directed to an analysis method. Thus it is interpreted herein that claim 1 is specifically directed to an analysis method of using an ECL multicomponent analysis sensor, and not to a method of producing the sensor and its associated components and reagents. As such, only limitations which further limit the analysis method (i.e. the method of using the eCL multicomponent sensor) are understood to further limit the independent claim.
As such, claims 3-9 which recite only limitations on the method of establishing, producing, or synthesizing the ECL multicomponent sensor and its associated components and reagents fail to further limit the independent claim because these limitations do not further limit the analysis method itself to which the independent claim is explicitly directed.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, 5-8, and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gao et al (Spectrum-resolved electrochemiluminescence to multiplex the immunoassay and DNA probe assay. Analytical Chemistry 2022 94 (45), 15801-15808).
It is noted that the cited reference is an intervening reference with a publication date which falls between the foreign priority date and the filing date of the instant application. Applicant cannot rely upon the certified copy of the foreign priority application to overcome this rejection because a translation of said application has not been made of record in accordance with 37 CFR 1.55. When an English language translation of a non-English language foreign application is required, the translation must be that of the certified copy (of the foreign application as filed) submitted together with a statement that the translation of the certified copy is accurate. See MPEP §§ 215 and 216.
It is further noted that, as discussed in the claim interpretation and 112 sections above, the claims are directed to an ECL immunoassay-nucleic acid testing analysis method (i.e. the claims are understood to be directed to a method of using an ECL multicomponent analysis sensor to perform an ECL analysis method), such that limitations regarding how the sensor is produced or how certain reagents employed in the sensor are synthesized are not understood to further limit the analysis method itself or to distinguish it over the prior art. However, many of these limitations are addressed in the following rejection for the purpose of compact prosecution.
Regarding claim 1 Gao teaches an ECL immunoassay-nucleic acid testing synchronous multicomponent analysis method based on spectral resolution principle (Abstract) the method comprising:
Establishing an ECL multicomponent analysis sensor for synchronous implementation of immunoassay and nucleic acid testing, wherein the maximum radiation wavelengths of the ECL multicomponent analysis sensor are at 485nm and 775nm respectively (Abstract: multiplexing ECL for simultaneous detection of protein antigen and DNA using a first AuNC label with maximum emission wavelength at 485nm and a second CIS@ZnS QD label with maximum emission wavelength at 775nm);
The ECL multicomponent analysis sensor comprises a gold surface functionalized for sandwich-format detection of CEA and p53, such that it meets the structural limitation of claim 1, step i) (Abstract: simultaneous detection of CEA and p53; Pg. 15803, Col. 1, Par. 4-Col. 2, Par. 2: a gold electrode of the sensor is immersed in MPA solution to form Au│MPA. The gold electrode is then functionalized with a first antibody which is specific for CEA and a first capture DNA fragment which is specific for p53. Sample containing CEA and p53 is applied to the electrode surface. A mixture containing a probe DNA fragment for p53 labeled with CIS@ZnS QDs and a secondary antibody which binds specifically to CEA and which is labeled with AuNCs is further added and incubated, such that complexes are formed between the two immobilized capture agents (i.e. first antibody and first capture DNA fragment), the two target analytes (i.e. CEA and p53) and the two detection reagents (i.e. AuNC labeled secondary antibody and QD-labeled probe DNA));
Producing ECL by taking the ECL multicomponent analysis sensor as a working electrode, a platinum electrode as a counter electrode, and an Ag/AgCl electrode as a reference electrode when cyclic voltammetry is used for driving in a Hepes buffer solution containing 5-20 mM hydrazine hydrate (Pg. 15802, Col. 2, Par. 2: cyclic voltammetry is conducted in a three-electrode system comprising a functionalized gold working electrode, a Ag/AgCl reference electrode, and a platinum coil counter electrode; Fig. 4: Hepes buffer containing 10mM hydrazine hydrate);
Collecting all photons in the whole process of ECL by means of exposure imaging and obtaining a total spectrum by means of radiation of all the photons based on dispersive ECL (Fig. 5);
Drawing a working curve of CEA testing according to a relationship between the maximum radiation intensity at the maximum radiation wavelength of 485nm on a spectral curve and the concentration of a standard antigen solution (Fig. 5);
Drawing a working curve of Tp53 testing according to a relationship between the maximum radiation intensity at the maximum radiation wavelength of 775 nm on the spectral curve and the concentration of Tp53 (Fig. 5); and
Using a sample to be tested to establish an ECL sensor for synchronous implementation of immunoassay and nucleic acid testing according to step i), performing an ECL spectral test according to the methods of steps ii) and iii), and synchronously testing the concentrations of the antigen and target DNA in the sample solution to be tested according to light intensity signal and a working curve at the maximum radiation wavelength on the obtained ECL spectral curve (Fig. 5; Pg. 15805, Col. 1-Pg. 15806, Col. 2, Par. 2).
Regarding claim 2, Gao further teaches the method wherein when cyclic voltammetry scanning is performed, a scanning voltage ranges from 0V to 1.6V, a number of scanning turns is 1 to 3, and a scanning speed is 40 to 60 mV/s (Fig. 3, 5: scanning from 0 to 1.6V for one cycle at 50 mV/s).
Regarding claim 3, Gao further teaches the method wherein the method for establishing the ECL multicomponent analysis sensor for synchronous implementation of immunoassay and nucleic acid testing is as follows:
Using a cleaned and activated Au electrode as a working electrode, and labeling both CEA-Ab1 and Cp53 on the surface of the electrode to obtain a double-labeled Au electrode (Pg. 15803, Col. 2, Par. 2: Fabrication of the ECL Biosensor for the Simultaneous Immunoassay and DNA Probe Assay);
Labeling the water-soluble AuNCs with CEA-Ab2 to obtain Ab2│AuNCs; labeling the water-soluble CIS@ZnS NCs with a probe DNA to obtain Pp53│CIS@ZnS NCs (Pg. 15803, Col. 1, Par. 3: Preparation of AuNCs labeled with Ab2 and CIS@ZnS NCs labeled with probe DNA);
And adding CEA-Ag and Tp53 dropwise to the surface of the double-labeled Au electrode, incubating the mixture at room temperature, adding the Ab2│AuNCs and Pp53│CIS@ZnS NCs obtained in step b dropwise to the surface of the electrode and incubating the mixture; grafting Ab2│AuNCs and Pp53│CIS@ZnS NCs to the surface of the working electrode in a form of immune complex formation to obtain an ECL multicomponent analysis sensor for synchronous implementation of immunoassay and nucleic acid testing (Pg. 15803, Col. 1, Par. 2: Fabrication of the ECL Biosensor for the Simultaneous Immunoassay and DNA Probe Assay).
Regarding claim 5, Gao further teaches the method according to claim 3 wherein step b for establishing the ECL multicomponent analysis sensor for synchronous implementation of immunoassay and nucleic acid testing, the synthesis steps of the Ab2│Au NCs are as follows:
Activating carboxylic acid groups on the surface of water-soluble AuNCs (Pg. 15803, Col. 1, Par. 3: the carboxylic groups are activated by mixing 100 uL of of Au NCs with a drop of 20uL of phosphate buffer containing EDC/NHS);
Enabling the secondary antibody to react with the carboxylic acid groups on the surface of the water-soluble Au NCs treated in step 1) to obtain a secondary antibody corresponding to the antigen labeled by the water-soluble Au NCs (Pg. 15803, Col. 1, Par. 3: the activated NCs are collected via centrifugation and re-dispersed into a drop of 1 mL of 10 mM phosphate buffer containing secondary antibody).
Regarding claims 5-8, as discussed above, limitations regarding how the sensor is produced or how certain reagents employed in the sensor are synthesized are not understood to further limit the analysis method itself or to distinguish it over the prior art.
Regarding claim 6, Gao further teaches the method of claim 5 wherein the water-soluble AuNCs are prepared from chloroauric acid as an Au source, MPA as a stabilizer, and zinc acetate as an aggregation inducer (Pg. 15802, Col. 2, last Par.-Pg. 15803, Col. 1, Par. 1).
Regarding claim 7, Gao further teaches the method of claim 3 wherein step b for establishing the ECL multicomponent analysis sensor for synchronous implementation of immunoassay and nucleic acid testing, the synthesis steps of the Pp53│CIS@ZnSNCs are as follows:
Activating carboxylic acid groups on the surface of water-soluble CIS@ZnS NCs (Pg. 15803, Col. 1, Par. 3: the carboxylic groups are activated by mixing 100 uL of NCs with a drop of 20uL of phosphate buffer containing EDC/NHS); and
Making Pp53 react with the carboxylic acid groups on the surface of the activated water-soluble CIS@ZnS NCs to obtain a probe DNA corresponding to a target DNA labeled with the water-soluble CIS@ZnS NCs (Pg. 15803, Col. 1, Par. 3: the activated NCs are collected via centrifugation and re-dispersed into a drop of 1 mL of 10 mM phosphate buffer containing Pp53).
Regarding claim 8, Gao further teaches the method of claim 7 wherein the water-soluble CIS@ZnS NCs are water-soluble CuInS2@ZnS NCs prepared from CuCl2●2H2O as a Cu source, InCl3●4H2O as an In source, and sodium citrate and captopril as stabilizers (Pg. 15803, Col. 1, Par. 2).
Regarding claim 10, Gao further teaches the method wherein:
Aqueous solution of CEA-Ag with different standard concentrations and aqueous solutions of Tp53 with different standard concentrations are prepared (Fig. 5).
The ECL sensor for synchronous implementation of immunoassay and nucleic acid testing is established according to the method for establishing an ECL sensor for synchronous implementation of immunoassay and nucleic acid testing using the aqueous solutions of CEA-Ag with different standard concentrations and the aqueous solutions of Tp53 with different standard concentrations , and ECL is produced by taking the obtained sensor electrode as a working electrode, a platinum electrode as a counter electrode, and an Ag/AgCl electrode as a reference electrode when cyclic voltammetry is used for driving in a Hepes buffer solution containing 5-20 mM hydrazine hydrate (Fig. 4-5; Pg. 15802, Col. 2, Par. 2);
Collecting all photon in the whole process of ECL by means of exposure imaging and obtaining a total spectrum by means of radiation of all the photons based on dispersive ECL; drawing a working curve of CEA testing according to a relationship between the maximum radiation intensity and the maximum radiation wavelength of 485nm on a spectral curve and the concentration of standard antigens; drawing a working curve of Tp53 testing according to a relationship between the maximum radiation intensity at the maximum radiation wavelength of 775nm on the spectral curve and the concentration of Tp53 (Fig. 5);
An ECL sensor for synchronous implementation of immunoassay and nucleic acid testing is established (abstract);
ECL is produced by taking the obtained sensor electrode as a working electrode, a platinum electrode as a counter electrode, and an Ag/AgCl electrode as a reference electrode when cyclic voltammetry is used for driving in a Hepes buffer solution containing 5-20 mM hydrazine hydrate (Fig. 4-5; Pg. 15802, Col. 2, Par. 2);
The concentrations of the antigen and target DNA in the sample solution are synchronously tested according to a light intensity signal and a working curve at the maximum radiation wavelength on the obtained ECL spectral curve (Fig. 4-5).
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.
Claims 4 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Gao et al (Spectrum-resolved electrochemiluminescence to multiplex the immunoassay and DNA probe assay. Analytical Chemistry 2022 94 (45), 15801-15808), as applied to claims 1 and 3 above, and further in view of Liang et al (Ultrasensitive immunoassay based on anodic near-infrared electrochemiluminescence from dual-stabilizer-capped CdTe Nanocrystals. Analytical Chemistry 2012 84 (24), 10645-10649).
Regarding claim 4, Gao further teaches the method of claim 3 wherein in step a, the preparation steps of the double-labeled Au electrode are as follows:
Soaking a cleaned Au electrode in 5-20mM MPA overnight, and bonding MPA to the surface of the electrode through an Au-S bond (Pg. 15803, Col. 1, Par. 4: Au electrode is polished and immersed in 10 mM MPA solution for 10h to form Au│MPA);
Adding EDC and NHS to the surface of the modified electrode (Pg. 15803, Col. 1, Par. 4: carboxyl groups of Au│MPA are activated with EDC/NHS);
Mixing an aqueous solution of CEA-Ab1 and an aqueous solution of Cp53, adding the mixture to the surface of the activated electrode, incubating the mixture for 2-4h, adding the mixture to unreacted active sites on a BSA closed electrode, and cleaning the electrode to obtain a double-labeled Au electrode; the concentration of the aqueous solution of CEA-Ab1is 8-15 ug/mL with an added amount of 8-15 uL, and the concentration of the aqueous solution of Cp53 is 8-15 uM with an added amount of 8-15 uL (Pg. 15803, Col. 2, Par. 2: electrode is reacted with 10 uL of 10 ug/mL Ab1 (CEA) and 10 uL of 10 uM Cp53 at 37C for 3; Pg. 15803, Col. 1, Par. 4-5: incubation with 1% v/v BSA solution to block non-specific adsorption sites).
Regarding claim 9, Gao further teaches the method wherein the ECL multicomponent analysis sensor for synchronous implementation of immunoassay and nucleic acid testing is as follows:
Soaking a cleaned Au electrode in 10mM MPA overnight and bounding MPA to the surface of the electrode through an Au-S bond (Pg. 15803, Col. 1, Par. 4: polished Au electrode immersed in 10 mM MPA solution for 10h);
Adding EDC and NHS to the surface of the modified electrode (Pg. 15803, Col. 1, Par. 4: carboxyl groups of the Au-MPA electrode are activated with EDC/NHS);
Mixing 10 uL of 10 ug/mL aqueous solution of CEA-Ab1 and 10 uL of 10 uM aqueous solution of Cp53, adding the mixture to the surface of the activated electrode obtained in step b, incubating the mixture for 3h, adding the mixture to unreacted active sites on a BSA closed electrode, and cleaning the electrode to obtain a double-labeled Au electrode (Pg. 15803, Col. 2, Par. 2: Au-MPA electrode is incubated with 10 uL of 10 ug/mL Ab1 (CEA) and 10 uL of 10 uM aqueous solution of Cp53 at 37C at 3h to form a double-labeled electrode; Pg. 15803, Col. 1, Par. 4-5: blocking with 1% BSA for 30 min);
Dissolving purified Au NCs in 0.1 M pH 6.0 PBS containing EDC and NHS, performing centrifugal purification, and dispersing the mixture in 1 mL of pH 7.4 0.1 M PBS to obtain activated Au NCs; adding 10 uL of 10 ug/mL aqueous solution of CEA-Ab2, incubating the mixture at constant temperate of 37C for 3-5h, adding 20 uL of BSA, sealing for 30 min, centrifuging the mixture, and collecting sediments to obtain Ab2│Au NCs (Pg. 15803, Col. 1, Par. 3: carboxylic groups of CIS@ZnS NCs and AuNCs are activated by incubation with EDC/NHS in pH 6.0 phosphate buffer for 30 min. The activated NCs are collected via centrifugation and then re-dispersed into a drop of 1 mL of 10 mM pH 7.4 phosphate buffer containing 0.1 ug/mL of Ab2 (CEA) and incubating for 3h. 20uL of 1% BSA is introduced to the mixture to block non-specific binding sites of the conjugates for 30 min. The conjugates are purified via centrifugation to obtain Ab2│AuNCs);
Dissolving purified CIS@ZnS NCs in 0.1 M pH 6.0 PBS containing EDC and NHS, activating the mixture, performing centrifugal purification, and dispersing the mixture in 1 mL of pH 7.4 0.1M PBS to obtain activated CIS@ZnS NCs; adding 10 uL of 10 uM aqueous solution of probe DNA, incubating the mixture at a constant temperature of 37C for 3-5 h, adding 20uL of BSA, sealing for 30 min, centrifuging the mixture, and collecting sediments to obtain Pp53│CIS@ZnS NCs (Pg. 15803, Col. 1, Par. 3); and
Adding CEA-Ag and Tp53 dropwise to the surface of the double-labeled Au electrode, incubating the mixture at room temperature for 90 min, mixing and adding the Ab2│Au NCs and Pp53│CIS@ZnS NCs in a form of immune complex formation to the surface of the working electrode to obtain an ECL sensor for synchronous implementation of immunoassay and nucleic acid testing (Pg. 15803, Col. 2, Par. 2: adding a drop of sample containing CEA and Tp53 to the surface of the double-labeled electrode and incubating for 90 min, then adding a mixture of the Au and CIS@ZnS NC conjugates to facilitate complex formation between the double-labeled electrode and the target analytes);
Wherein the BSA is 1% v/v (Pg. 15803, Col. 1, Par. 3-5: 1% v/v BSA);
The CEA-Ag and Tp53 are added dropwise to the surface of the double-labeled Au electrode in the form of aqueous solutions, the concentration of CEA is 0.3 pg/mL-50 ng/mL, and the concentration of Tp53 is 1 pM-50 nM (Fig. 5: standard solutions of CEA Ag and Tp53 with concentrations ranging from 0-50 ng/mL of CEA Ag and 0-50nM of p53);
The Ab2│Au NCs and Pp53│CIS@ZnS NCs are added to the surface of the electrode dropwise in the form of aqueous solutions for incubation and the concentration of Ab2│Au NCs is 10-20 mg/mL; the concentration of Pp53│CIS@ZnS NCs is 10-20 uM, and the amounts of Ab2│Au NCs and Pp53│CIS@ZnS NCs shall be sufficient; antigen-antibody interaction and complementary base pairing are formed (Pg. 15803, Col. 2, Par. 2: solutions added to the electrode; Fig. 5: reduction to practice indicates sufficient amounts of conjugate are applied to facilitate antigen-antibody interaction and complementary base pairing).
Gao differs from instant claims 4 and 9 in that it does not explicitly teach the recited washing and cleaning steps and does not teach a specific wash buffer used for these steps (i.e. removing unreacted EDC and NHS, washing after functionalization with antibody and DNA, washing after addition of antigen).
Regarding claims 4 and 9, Liang discloses an ECL biosensor comprising a functionalized Au electrode, wherein functionalization of the electrode is facilitated by activation of the electrode by EDC and NHS. Liang further teaches that the electrode is washed after activation with EDC and NHS to remove unreacted EDC and NHS, and teaches that the particular flushing liquid used is 10 mM pH=7.4 PBS. Liang further teaches that the electrode is washed after functionalization with Ab1.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method of Gao to specifically include the wash steps and flushing liquid taught by Liang. One of ordinary skill would be motivated to make this modification because a wash step is useful for removing unbound reagents such that they do not interfere with subsequent synthesis or detection steps in the method. One of ordinary skill in the art would have a reasonable expectation of success in making this modification because both Gao and Liang are directed to ECL sensors comprising gold electrodes which are activated with EDC and NHS and functionalized with an antibody.
Though neither Gao nor Liang specifically teaches a washing step between the addition of the antigen/sample and the addition of the labeled detection reagents, as required in claim 9, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method to include this step because it is common practice in the art of immunoassays and because Liang teaches the use of washing steps throughout the method. One of ordinary skill in the art would be motivated to have a washing step between addition of antigen/sample and addition of labeled detection reagents because one would recognize that the washing step would be useful for removing unbound antigen and interferences and would thereby improve accuracy and function of the sensor. One of ordinary skill in the art would have a reasonable expectation of success in making this modification because both Gao and Liang are directed to ECL biosensors which rely on sandwich format immunoassay for the detection of an antigen.
Gao and Liang differ from the instant clam in that they do not teach the specific volume, concentration, or incubation time of EDC/NHS in the activating step.
The prior art differs from the claimed invention only with respect to the particular volume, concentration, and activation time of EDC and NHS. The Court has stated that, generally, such differences amount to mere optimization and will not support patentability unless there is evidence indicating the claimed feature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For more recent cases applying this principle, see Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997). In KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), the Supreme Court held that "obvious to try" was a valid rationale for an obviousness finding, for example, when there is a "design need" or "market demand" and there are a "finite number" of solutions. 550 U.S. at 421.
MPEP 2144 sets forth Applicant' s burden for rebuttal of a prima facie case of obviousness based upon routine optimization. Applicant must provide either a showing that the particular amount or range recited within the claims is critical; and/or a showing that the prior art reference teaches away from the claimed amount.
In the instant case, the specification as filed provides no evidence that the particular amount or range recited within the claims is critical because activation of carboxyl groups on a gold surface is commonly performed using EDC and NHS as described in Gao. One of ordinary skill in the would find it obvious to and would be motivated to optimize the particular volume, concentration, and incubation time of the reagents used in order to ensure proper activation and functionalization of the surface. One of ordinary skill in the art would recognize that optimal ranges of these parameters would vary in relation to one other and would vary by the design and size of the sensor (e.g. a larger electrode surface would require a larger volume of reagent to ensure proper activation across the whole surface).
Response to Arguments
Applicant’s arguments filed 19 January 2026.
The previous 112(a) rejections are withdrawn in view of the amendments to the claims.
Regarding the 112(b) rejections, applicant argues that amendments to the claims overcome the previous 112(b) rejections. 112(b) rejections which are maintained are repeated above, and new grounds of 112(b) rejections which address the amended claims are presented above.
Regarding the 102 and 103 rejections, Applicant argues that Gao is an improper reference to reject the instant application because (1) Gao was published later than the foreign priority date of the instant application and (2) because the instant application and the disclosure of Gao were carried out by the same inventors, as declared in the affidavit. These arguments are not persuasive because (1) no certified English translation of the foreign application has been provided to overcome the intervening reference and (2) the Gao reference applied in the 102 and 103 rejections above has additional authors and contributors who are not credited in the instant application, and Applicant has not provided reasonable explanation of the presence of these additional authors. As such, Applicant’s affidavit does not meet the requirements of a proper and sufficient declaration under 1.130(a) to overcome the applied art. See MPEP 717.01(a)(1) and MPEP 2132.01(I).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELLIS LUSI whose telephone number is (571)270-0694. The examiner can normally be reached M-Th 8am-6pm ET.
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/ELLIS FOLLETT LUSI/Examiner, Art Unit 1677
/CHRISTOPHER L CHIN/Primary Examiner, Art Unit 1677
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