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 .
Status of Claims
Claim 1-20 are pending and under examination.
Claim Objections
Claims 8 and 11 are objected to because of the following informalities:
Claim 8 recites “the step of introducing gas”. There is insufficient antecedent basis for this step in the claims and it is unclear what the step of introducing gas is referring to. Perhaps applicants are intending to recite “a step of introducing gas”? A similar rejection is made over claim 11.
Appropriate correction is required.
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 4-6, 9-10, and 12-13 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 pre-AIA the applicant regards as the invention.
Claim 4 recites “a microorganism and a suitable growth medium”. Claim 1 line 2 previously refers to “a microorganism and a suitable growth medium”. It is unclear if applicants are intending to introduce an addition microorganism and suitable growth medium to the method, or if applicants are referring to the microorganism and the suitable growth medium of claim 1.
Claims 5-6 are also rejected by their dependency from claim 4.
Claim 9 recites “a gas permeable portion of the first wall of the incubation chamber”. Claim 1 lines 8-9 previously define “at least a portion of at least one of the first wall and second wall is gas permeable”. It is unclear if applicant is attempting to define another gas permeable portion or if applicant is referring to the portion of at least one of the first wall and second wall in claim 1. A similar rejection is made over claims 10 and 12-13.
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 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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, 4-15, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Ismagilov et al. (WO 2016085632A2 where US 2018/0274020 is used at the corresponding document – hereinafter “Ismagilov”) and further in view of Ciftlik et al. (US 2015/0005190 – hereinafter “Ciftlik”)
Regarding claim 1, Ismagilov discloses a method for growing a microorganism in a liquid culture (Ismagilov discloses an assay to determine the resistance or susceptibility of a cell; [0067, 0122]) comprising:
(a) disposing a microorganism and a suitable growth medium in a first incubation chamber (Ismagilov discloses culturing cells to a desired density in a Bacto Brain-Heart Infusion broth (BHI), and incubating the cultured cells with or without a desired concentration of antibiotics; [0067]. The method is performed in a microfluidic device such as the SlipChip device; [0066]. The SlipChip device comprises two or more modules each comprising an incubation module, a sample preparation module, an amplification module, and a readout module; figs. 6A-6C, “Incubation Chambers”, [0232, 0234]),
wherein the incubation chamber comprises
(i) a first wall defining a chamber width and a chamber length (Ismagiloy; fig. 6 B the “Opening to incubation” of the upper most layer corresponding to the inner module “Chamber Y”; figs. 6A-6C. The examiner notes the opening of the upper most layer has a membrane for venting; [0234] and two perpendicular lines that intersect the origin of the diameter of the opening define a length and a width of the wall. Accordingly, the opening comprising a membrane defines a wall of the incubation chamber having a length and a width),
(ii) a second wall opposed to the first wall and spaced by a chamber depth (Ismagilov; The bottom layer comprising the incubation chamber has a bottom opposed to the opening in the upper most layer and is spaced by a depth defined by the incubation chamber; fig. 6C), and
(iii) at least one sidewall interconnecting the first wall and the second wall to define a chamber interior having a chamber volume and configured to contain a liquid (Ismagilov; fig. 6C, “incubation chamber” comprises sidewalls, defined in the figure below, that interconnect the first and second wall to create a chamber interior having a chamber volume. Ismagilov discloses samples can be transported from the central SlipChip layer and mixed with solution, such as media or antibiotics, contained within the incubation chambers; [0234]. Accordingly, the interior of the chamber being configured to contain a liquid.),
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wherein at least a portion of at least one of the first wall and second wall is gas permeable (Ismagilov; The first and second walls have one or more openings with a hydrophobic film membrane for venting and controlling pressure; figs. 6A-6C, [0234]); and
(b) mixing the microorganism and the growth medium by oscillating the incubation chamber back and forth along an oscillation path at a predetermined oscillation frequency (Ismagilov; The incubation chamber is a module configured to perform mixing of the microorganism and the growth medium; [0066-0067, 0236]. Mixing is performed by movement of the layers, actuated automatically using an oscillating shaft. The shaft can be controlled by a motor encoded or programmed to specific speeds, directions, and/or rotation angles; [0239]).
Ismagilov does not disclose wherein both the chamber width and chamber length are substantially larger than the chamber depth.
However, Ciftlik teaches the analogous art of an incubation chamber (Ciftlik; figs. 2-8, [0052]) wherein the incubation chamber comprises a length, width, and depth such that the chamber width and the chamber length are substantially larger than the chamber depth (Ciftlik teaches an incubation chamber having a 16 mm length x 16 mm width and a 100 µm depth; [0052]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the dimensions of the incubation chamber of Ismagilov, to have dimensions such that the chamber width and chamber length are substantially larger than the chamber depth, as taught by Ciftlik, because Ciftlik teaches the chamber dimensions comprising a chamber width and chamber length that are substantially larger than the chamber depth allows rapid, complete, and uniform exchange of fluids within the incubation chamber; [0052]. One of ordinary skill in the art would have expected this modification could have been performed with a reasonable expectation of success since Ismagilov and Ciftlik both teach an incubation chamber comprising a length, width, and depth for mixing fluids.
Regarding claim 2, modified Ismagilov teaches the method of claim 1 above, further comprising the step of incubating the microorganism by placing the incubation chamber in an incubator for a predetermined incubation period (Ismagilov teaches the microorganisms may be incubated for a period of time for example, <10, 10, 15, 20, 30, 45, 60, or >60 minutes; [0067]).
Regarding claim 4, modified Ismagilov teaches the method of claim 1 above, further comprising disposing a microorganism and a suitable growth medium in at least one additional incubation chamber (Ismagilov discloses culturing cells to a desired density in a Bacto Brain-Heart Infusion broth (BHI), and incubating the cultured cells with or without a desired concentration of antibiotics; [0067]. The method is performed in a microfluidic device such as the SlipChip device; [0066]. The SlipChip device comprises two or more modules each comprising an incubation module, a sample preparation module, an amplification module, and a readout module; figs. 6A-6C, “Incubation Chambers”, [0232, 0234]. The examiner is interpreting the incubation module corresponding to the outer module “Chamber X” as the at least one additional incubation chamber; fig. 6B.).
Regarding claim 5, modified Ismagilov teaches the method of claim 4 above, wherein the growth medium in the first incubation chamber comprises an anti-microbial agent free cell culture medium, and the growth medium in the at least one additional incubation chamber comprises at least one antimicrobial agent (Ismagilov discloses culturing cells to a desired density in a Bacto Brain-Heart Infusion broth (BHI), and incubating the cultured cells with or without a desired concentration of antibiotics; [0067]. The method is performed in a microfluidic device such as the SlipChip device; [0066]. The SlipChip device comprises two or more modules each comprising an incubation module, a sample preparation module, an amplification module, and a readout module; figs. 6A-6C, “Incubation Chambers”, [0232, 0234]. The incubation chamber in the incubation module can be used for antibiotic susceptibility testing where the microorganism and antibiotic are combined; [0235-0236]. The examiner is interpreting the inner most module corresponding to “Chamber Y” as the first incubation chamber without a desired concentration of antibiotics and the outer most module corresponding to “Chamber X” as the at least one additional incubation chamber with a desired concentration of antibiotics).
Regarding claim 6, modified Ismagilov teaches the method of claim 5 above, wherein the anti-microbial agent is an antibiotic (Ismagilov; the incubation chamber is a module configured to combine the microorganism with the antibiotic; [0067, 0236]).
Regarding claim 7, modified Ismagilov teaches the method of 1 above, further comprising incubating the microorganism in a bacterial growth broth solution that is a cation-adjusted broth solution (Ismagilov discloses culturing cells to a desired density in a Bacto Brain-Heart Infusion broth (BHI); [0067]. The cation Mg2+ and/or Fe (2+) and/or Ag+ and/or other salt concentrations of medium used to expose the microorganisms to antibiotics is increased or decreased; [0116-0118]).
Regarding claim 8, modified Ismagilov teaches the method of 1 above, further comprising the step of introducing gas into the incubation chamber during mixing (Ismagilov discloses culturing cells to a desired density in a Bacto Brain-Heart Infusion broth (BHI), and incubating the cultured cells with or without a desired concentration of antibiotics; [0067]. The method is performed in a microfluidic device such as the SlipChip device comprising one or more incubation chambers; [0066, 0232]. The incubation chamber is a module configured to perform mixing of the microorganism and the growth medium; [0066-0067, 0236]. Mixing is performed by movement of the layers, actuated automatically using an oscillating shaft. The shaft can be controlled by a motor encoded or programmed to specific speeds, directions, and/or rotation angles; [0239]. Specific culturing conditions are used to speed up a microorganism’s response to an antibiotic including exposing the microorganism to a gas or gas mixture; [0125]. Mixing may also be performed by pressurizing one or more solutions and allowing them to collide, or alternating between positive and negative pressures; [0276]. The first and second walls of the incubation chamber have one or more openings with a hydrophobic film membrane for venting and controlling pressure; figs. 6A-6C, [0234]. The hydrophobic film membrane blocks the flow of aqueous solution but allows non-aqueous liquid and gas to flow through; [0238]. Accordingly, exposing the microorganism to a gas or gas mixture to speed up the microorganism’s response to an antibiotic creates an alternating pressure in the incubation chamber as the gas passes through the hydrophobic film over the openings in the first and second walls and mixes the sample).
Regarding claim 9, modified Ismagilov teaches the method of claim 8 above, wherein the step of introducing gas into the incubation chamber is accomplished by passing gas through a gas permeable portion of the first wall of the incubation chamber (Ismagilov discloses culturing cells to a desired density in a Bacto Brain-Heart Infusion broth (BHI), and incubating the cultured cells with or without a desired concentration of antibiotics; [0067]. The method is performed in a microfluidic device such as the SlipChip device comprising one or more incubation chambers; [0066, 0232]. The incubation chamber is a module configured to perform mixing of the microorganism and the growth medium; [0066-0067, 0236]. Mixing is performed by movement of the layers, actuated automatically using an oscillating shaft. The shaft can be controlled by a motor encoded or programmed to specific speeds, directions, and/or rotation angles; [0239]. Specific culturing conditions are used to speed up a microorganism’s response to an antibiotic including exposing the microorganism to a gas or gas mixture; [0125]. Mixing may also be performed by pressurizing one or more solutions and allowing them to collide, or alternating between positive and negative pressures; [0276]. The first and second walls of the incubation chamber have one or more openings with a hydrophobic film membrane for venting and controlling pressure; figs. 6A-6C, [0234]. The hydrophobic film membrane blocks the flow of aqueous solution but allows non-aqueous liquid and gas to flow through; [0238]. Accordingly, exposing the microorganism to a gas or gas mixture to speed up the microorganism’s response to an antibiotic creates an alternating pressure in the incubation chamber as the gas passes through the hydrophobic film over the openings in the first and second walls and mixes the sample).
Regarding claim 10, modified Ismagilov teaches the method of claim 8 above, wherein the step of introducing gas into the incubation chamber is accomplished by passing gas through a gas permeable portion of the second wall of the incubation chamber (Ismagilov discloses culturing cells to a desired density in a Bacto Brain-Heart Infusion broth (BHI), and incubating the cultured cells with or without a desired concentration of antibiotics; [0067]. The method is performed in a microfluidic device such as the SlipChip device comprising one or more incubation chambers; [0066, 0232]. The incubation chamber is a module configured to perform mixing of the microorganism and the growth medium; [0066-0067, 0236]. Mixing is performed by movement of the layers, actuated automatically using an oscillating shaft. The shaft can be controlled by a motor encoded or programmed to specific speeds, directions, and/or rotation angles; [0239]. Specific culturing conditions are used to speed up a microorganism’s response to an antibiotic including exposing the microorganism to a gas or gas mixture; [0125]. Mixing may also be performed by pressurizing one or more solutions and allowing them to collide, or alternating between positive and negative pressures; [0276]. The first and second walls of the incubation chamber have one or more openings with a hydrophobic film membrane for venting and controlling pressure; figs. 6A-6C, [0234]. The hydrophobic film membrane blocks the flow of aqueous solution but allows non-aqueous liquid and gas to flow through; [0238]. Accordingly, exposing the microorganism to a gas or gas mixture to speed up the microorganism’s response to an antibiotic creates an alternating pressure in the incubation chamber as the gas passes through the hydrophobic film over the openings in the first and second walls and mixes the sample).
Regarding claim 11, modified Ismagilov teaches the method of 1 above, further comprising the step of exhausting waste gases from the incubation chamber during mixing (The first and second walls of the incubation chamber have one or more openings with a hydrophobic film membrane for venting and controlling pressure; figs. 6A-6C, [0234]).
Regarding claim 12, modified Ismagilov teaches the method of claim 11 above, wherein the step of exhausting waste gases from the incubation chamber is accomplished by passing waste gases through a gas permeable portion of the first wall of the incubation chamber (The first and second walls of the incubation chamber have one or more openings with a hydrophobic film membrane for venting and controlling pressure; figs. 6A-6C, [0234]).
Regarding claim 13, modified Ismagilov teaches the method of claim 11 above, wherein the step of exhausting waste gases from the incubation chamber is accomplished by passing waste gases through a gas permeable portion of the second wall of the incubation chamber (The first and second walls of the incubation chamber have one or more openings with a hydrophobic film membrane for venting and controlling pressure; figs. 6A-6C, [0234]).
Regarding claim 14, modified Ismagilov teaches the method of claim 1 above, wherein the oscillation path is an arcuate path (Ismagilov; The incubation chamber is a module configured to perform mixing of the microorganism and the growth medium; [0066-0067, 0236]. Mixing is performed by movement of the layers, actuated automatically using an oscillating shaft. The shaft can be controlled by a motor encoded or programmed to specific speeds, directions, and/or rotation angles; [0239]. The examiner notes that movement of the slipping layer between the “Before Slip” and “After Slip” position shown in fig. 6B results in an arcuate path. The drive mechanism is controlled to rotate back and forth between the “Before Slip” and “After Slip” positions and therefore oscillates along the arcuate path defined by the arrow in fig. 6B).
Regarding claim 15, modified Ismagilov teaches the method of claim 14 above, wherein the arcuate path has an oscillation angle (Ismagilov; the arcuate path has an oscillation angle defined by the arrow shown in fig. 6B).
Modified Ismagilov does not teach the oscillation angle is between 100 and 260 degrees.
However, Ismagilov does teach mixing the microorganism and the growth medium by oscillating the incubation chamber back and forth along an oscillation path that is an arcuate path (Ismagilov; The incubation chamber is a module configured to perform mixing of the microorganism and the growth medium; [0066-0067, 0236]. Mixing is performed by movement of the layers, actuated automatically using an oscillating shaft. The shaft can be controlled by a motor encoded or programmed to specific speeds, directions, and/or rotation angles; [0239]. The examiner notes that movement of the slipping layer between the “Before Slip” and “After Slip” position shown in fig. 6B results in an arcuate path. The drive mechanism is controlled to rotate back and forth between the “Before Slip” and “After Slip” positions and therefore oscillates along the arcuate path defined by the arrow in fig. 6B).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the proportion of the extruded portion of the upper layer of the incubation module that the slip handle oscillates between along an arcuate path of modified Ismagilov to a proportion such that the slip handle oscillates along an arcuate path between 100 and 260 degrees, and to modify the incubation module, sample preparation module, amplification module, and readout module to be spaced further radially apart along the incubation module in a spiral configuration, because the slip handle that oscillates along an arcuate path between 100 and 260 degrees is merely a change in size/proportion of the extruded portion of the upper layer of the incubation module and the incubation module, sample preparation module, amplification module, and readout module spaced further radially apart along the incubation module in a spiral configuration is merely a rearrangement of parts that would reduce the frequency of the jerking motion created during mixing each time the incubation chamber oscillates along the arcuate path. Furthermore, the courts held that changes in size/proportion and rearrangement of parts did not patentably distinguish over the prior art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package "of appreciable size and weight requiring handling by a lift truck" where held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) ("mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled." 531 F.2d at 1053, 189 USPQ at 148.). In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice). The device and method of modified Ismagilov resulting in the oscillation angle is between 100 and 260 degrees since Ismagilov specifically teaches the shaft can be controlled by a motor encoded or programmed to specific speeds, directions, and/or rotation angles; [0239]. One of ordinary skill in the art would have expected this modification could have been performed with a reasonable expectation of success since modified Ismagilov teaches mixing the microorganism and the growth medium by oscillating the incubation chamber back and forth along an oscillation path that is an arcuate path
Regarding claim 18, modified Ismagilov teaches the method of 1 above, wherein the microorganism is bacteria (Ismagilov; [0018]).
Regarding claim 19, modified Ismagilov teaches the method of 1 above, wherein the microorganism and suitable growth medium when disposed in a first incubation chamber occupy no more than 2/3 of the chamber volume, such that there remains a head space within the incubation chamber (Ismagilov teaches the incubation chamber is designed to process between 1 mL and 10 mL; [0242]. In a case where the total volume of the microorganism and suitable growth medium is less than 6.67 mL, the microorganism and growth medium occupy no more than 2/3 of the incubation chamber and a head space remains in the incubation chamber).
Regarding claim 20, modified Ismagilov teaches the method of claim 19 above, wherein the head space is configured such that when the incubation chamber is oscillated back and forth along an oscillation path, the head space creates more surface area for gas exchange within the chamber (Ismagilov teaches the incubation chamber is designed to process between 1 mL and 10 mL; [0242]. In a case where the total volume of the microorganism and suitable growth medium is less than 6.67 mL, the microorganism and growth medium occupy no more than 2/3 of the incubation chamber and a head space remains in the incubation chamber. The incubation chamber is a module configured to perform mixing of the microorganism and the growth medium; [0066-0067, 0236]. Mixing is performed by movement of the layers, actuated automatically using an oscillating shaft. The shaft can be controlled by a motor encoded or programmed to specific speeds, directions, and/or rotation angles; [0239]. Accordingly, the method and device of Ismagilov being equivalents and would result in the head space creating more surface area for gas exchange within the chamber during oscillation).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Ismagilov et al. in view of Ciftlik, and further in view of Jensen et al. (US 2008/0190219 – hereinafter “Jensen”).
Regarding claim 3, modified Ismagilov teaches the method of claim 2 above, wherein the incubator comprises a heating element formed from a material (Ismagilov; the incubation chambers can be sitting in a heated bath or otherwise in contact with heating elements for incubation; [0234]. The incubation chamber module itself can contain a heating element comprising a material; [0241]).
Modified Ismagilov does not teach the material comprising at least one of nickel/chrome (Ni/Cr), copper/nickel (Cu/Ni), or iron/chromium/aluminum (Fe/Cr/Al).
However, Jensen teaches the analogous art of a chamber (Jensen; fig. 1, [0034]) comprising a heating element (Jensen; fig. 1, “heating electrode”, [0134]) wherein the material of the heating element comprises nickel/chrome or iron-chrome-aluminum (Jensen; [0134]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the material of the heating element of modified Ismagilov, with the material comprising nickel/chrome or iron/chromium/aluminum, as taught by Jensen, because Jensen teaches the heating element comprising nickel/chrome or iron/chromium/aluminum is made of electrically conductive material; [0134]. One of ordinary skill in the art would have expected this modification could have been performed with a reasonable expectation of success since modified Ismagilov and Jensen both teach a chamber comprising a heating element.
Claims 16 is rejected under 35 U.S.C. 103 as being unpatentable over Ismagilov, in view of Ciftlik, and further in view of Brown (US 2016/0095279 – hereinafter “Brown”).
Regarding claim 16, modified Ismagilov teaches the method of 54 above, comprising the oscillation path (Ismagilov; The incubation chamber is a module configured to perform mixing of the microorganism and the growth medium; [0066-0067, 0236]. Mixing is performed by movement of the layers, actuated automatically using an oscillating shaft. The shaft can be controlled by a motor encoded or programmed to specific speeds, directions, and/or rotation angles; [0239]).
Modified Ismagilov does not teach wherein the oscillation path is linear.
However, Brown teaches the analogous art of mixing microorganisms and growth medium by oscillating (Brown; fig. 1, #12, [0025, 0038]) wherein the oscillation path is linear (Brown; [0038]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the method of mixing by oscillating of modified Ismagilov with the method of mixing by oscillating in a linear path, as taught by Brown, because Brown teaches the method of mixing by oscillating in a linear path is a common and well-known method of mixing in the art; [0038]. One of ordinary skill in the art would have expected this modification could have been performed with a reasonable expectation of success since modified Ismagilov and Brown both teach mixing microorganisms and growth medium by oscillating.
Claims 17 is rejected under 35 U.S.C. 103 as being unpatentable over Ismagilov, in view of Ciftlik, and further in view of Buse (Provisional Application 62/476,364 with a filing date of 03/24/2017 where US 2018/0275028 is used as the corresponding document – hereinafter “Buse”).
Regarding claim 17, modified Ismagilov teaches the method of 1 above, comprising the predetermined oscillation frequency (Ismagilov; The incubation chamber is a module configured to perform mixing of the microorganism and the growth medium; [0066-0067, 0236]. Mixing is performed by movement of the layers, actuated automatically using an oscillating shaft. The shaft can be controlled by a motor encoded or programmed to specific speeds, directions, and/or rotation angles; [0239]).
Modified Ismagilov does not teach wherein the predetermined oscillation frequency is between 1 and 5 Hz.
However, Buse teaches the analogous art of mixing of mixing fluids (Buse; [0005]) wherein the method comprises mixing along an oscillation path at a predetermined oscillation frequency, wherein the oscillation frequency is between 3Hz and 6Hz (Buse teaches mixing along an x-axis path at frequencies between 3 and 6 Hz; [0061]).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the method that mixes at a predetermined oscillation frequency of modified Ismagilov with the method that mixes at a predetermined oscillation frequency between 3 and 6 Hz, as taught by Buse, because Buse teaches the method that mixes at a predetermined oscillation frequency between 3 and 6 Hz determines the effectiveness of mixing the fluid; fig. 9A, [0060-0061]). One of ordinary skill in the art would have expected this modification could have been performed with a reasonable expectation of success since modified Ismagilov and Buse both teach a method of mixing fluids along an oscillation path at a predetermine oscillation frequency.
Other References Cited
The prior art of made of record and not relied upon is considered pertinent to Applicant’s disclosure include:
Jacoby (US Patent No. 1,522,060) teaches oscillating in an arcuate path.
Friedman (US 2005/0152216) teaches a mixer for vibrating through an arc rather than a straight line and moves in a three-dimensional circular or elliptical path.
Miszenti (US 2007/0064521) teaches mixing by oscillatory motion that reciprocates containers in a reversing arcuate path.
Citations to art
In the above citations to documents in the art, an effort has been made to specifically cite representative passages, however rejections are in reference to the entirety of each document relied upon. Other passages, not specifically cited, may apply as well.
Conclusion
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/C.A.T./Examiner, Art Unit 1798
/BENJAMIN R WHATLEY/Primary Examiner, Art Unit 1798