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 .
Priority
No priority is claimed, therefore the filing date of 8/9/23 is the effective filing date.
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 1-4 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.
Regarding claim 1, the claim requires “monitoring the growth of bacteria into an antibiotic”. It is unclear how the bacteria transform into an antibiotic.
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 1-2 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Snell (US-2843526-A) and Castagnoli ("Effect of temperature on the inactivation of phage labelled with phosphorus-32." Nature 174.4430 (1954): 599-600).
Regarding claims 1 and 2, Snell teaches radioactive antibiotics (title). Snell teaches that bacteria are cultured (claim 1). Snell teaches that radioactive isotopes are added to the culture (claim 1). Snell teaches the culture is continued until antibiotic activity is obtained (monitoring the culture). Snell teaches that other radioactive isotopes can be added (column 2 lines 67-68).
Snell does not explicitly teach determining the amount of phosphorus in the culture, the radioactive phosphorous, lysing the bacteria, diluting the bacteria, freezing and storing the frozen bacteria.
Castagnoli teaches monitoring phage using 32 phosphorous (title). Castagnoli teaches specific quantities of phosphorus can be added to the cultures (determining amount of phosphorous) (p599 right column last partial paragraph). Castagnoli teaches the bacteria can be lysed and diluted (p600 left column first full paragraph). Castagnoli teaches the phosphorus degrades into sulfur (p600 left column second full paragraph). Castagnoli teaches the cultures can be frozen (p600 left column 3rd full paragraph). Castagnoli teaches the frozen cultures can be frozen and samples taken periodically (p600 left column 3rd-4th full paragraph).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the radioactive phosphorus as taught by Castagnoli in the method of Snell. One of ordinary skill in the art would be motivated to do so because Snell teaches any radiolabel maybe used in their invention and this would be a simple substitution of known labels. Regarding the claimed method steps, MPEP 2144.04 states that “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”. Moreover, the claims as written do not require any particular order for the steps of monitoring growth, determining the amount of phosphorous, introducing an isotope and monitoring the culture. There would be a reasonable expectation of success as both Snell and Castagnoli are in the same field of endeavor of radiolabels of components capable of causing bacterial death.
Regarding claim 4, Castagnoli teaches the frozen components are stable over the time period of days to weeks (p600 left column 3rd full paragraph). Therefore, it is prima facia obvious to extend the numerous weeks range provide by Castagnoli to reach the 200 day mark.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Snell (US-2843526-A) and Castagnoli ("Effect of temperature on the inactivation of phage labelled with phosphorus-32." Nature 174.4430 (1954): 599-600), as applied to claims 1-2 and 4 above, and further in view of Strauss ("The genetic effect of incorporated radioisotopes: the transmutation problem." Radiation Research 8.3 (1958): 234-247).
Regarding claim 3, Snell and Castagnoli do not explicitly teach the use of phosphorus 33.
Strauss teaches that P33 degrades into S33 (p234).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use P33 in the invention of Snell and Castagnoli above. One of ordinary skill in the art would be motivated to do so because this is a simple substitution of known radioactive phosphorus isotopes that degrade into sulfur. There would be a reasonable expectation of success as Snell, Castagnoli and Strauss are in the same field of endeavor of radioactive isotopes.
Conclusion
No claims are allowed
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TREVOR L KANE whose telephone number is (571)272-0265. The examiner can normally be reached M-F 7:00 am-4:00pm.
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/TREVOR KANE/Examiner, Art Unit 1657
/ROBERT J YAMASAKI/Primary Examiner, Art Unit 1657