DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1 – 26 and 31 – 33) in the reply filed on 23 February 2026 is acknowledged.
Claims 27 – 30 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 23 February 2026.
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.
Claim(s) 1 – 26 and 31 – 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chin et al. (US PGPUB 2014/0120524) in view of Zhao et al. (US PGPUB 2018/0049733).
Regarding claims 1, 8, and 31, Chin discloses a device for providing detection of infection (e.g. ¶ 39 – 40; Chin uses sensors with biorecognition elements so that different analytes can be distinguished. This reads on an ME-based biosensor for providing detection of infection), said device comprising at least one magnetoelastic-based sensor (e.g. ¶ 39), wherein at least one magnetoelastic-based sensor is a differential sensor, and further, wherein the differential sensor comprises a reference element and a sensing element (e.g. ¶ 39; providing one functionalized sensing element and one non-functionalized or differently coated reference element, and taking the difference reads on the claims). Chin fails to explicitly recite that the sensor is associated with a surgical implant or prosthesis for in vivo/post-surgical infection.
Zhao teaches it is known to use a magnetoelastic sensor coupled to a wound-site repairing structure that is deployed in vivo (e.g. Figs. 1 – 3, ABSTRACT). It would have been obvious to one having ordinary skill in the art to modify the device as taught by Chin with the device associated with an implant used in vivo as taught by Zhao, since such a modification would provide the predictable results of providing early and effective detection at a surgical site.
Regarding claims 2 – 5, Chin in view of Zhao discloses elements sized to be implanted, but don’t explicitly recite the claimed dimensions. It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the dimensions as taught by Chin in view of Zhao, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art [In re Aller, 105 USPQ 233] and/or since it has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ (Please see MPEP 2144.05).
Regarding claims 6, 7, and 32, Chin discloses the sensing elements have a rectangular shape (e.g. ¶ 50). But Chin in view of Zhao fails to teach the elements are both a triangular shape. It would have been an obvious design choice to replace the rectangular elements with triangular elements, since one having ordinary skill in the art would have expected the elements of Chin in view of Zhao to work equally as well as the triangular elements.
Regarding claims 9 – 11, Chin discloses the at least one magnetoelastic-based sensor has a sensor surface, and further, wherein one or more bio-recognizers are immobilized on at least a portion of the sensor surface, wherein the bio-recognizers are selected from the group consisting of antibodies, aptamers, nucleic acids, and proteins, and further, wherein the bio-recognizers are capable of binding to one or more analytes, said analytes selected from the group consisting of pathogens, bacteria, virus, biomarkers, proteins, and nucleic acids (e.g. ¶ 46 – 49).
Regarding claims 12 – 19 and 33¸ Chin discloses antibodies having antigen binding sites that are capable of binding with one or more post-surgical infectious bacteria (e.g. ¶ 46 – 49). The claimed list of bacteria are well known. Therefore, the antibodies of Chin would have been capable of binding with the claimed bacteria.
Regarding claims 20 – 26, Chin discloses the claimed invention as previously discussed. Zhao teaches it is known to use magnetoelastic coatings (e.g. ¶ 12). The specific claimed coatings are well known in the art. It would have been obvious to one having ordinary skill in the art to modify the magnetoelastic sensor as taught by Chin with the coatings as claimed as taught by Zhao and known in the art, since such a modification would provide the predictable results of protecting the sensor from the surrounding environment (see Zhao ¶ 42).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH M DIETRICH whose telephone number is (571)270-1895. The examiner can normally be reached Mon - Fri 8:00-5:00.
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/JOSEPH M DIETRICH/Primary Examiner, Art Unit 3792
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