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 .
Claim Rejections - 35 USC § 102
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 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.
Claim(s) 1,4-6,9-15 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Xie et al. (2017/0151351 A1).
Xie discloses Gd-encapsulated carbon dots (GdCD) and their use in MR imaging for cancer, including lung cancer (meeting claim 15). See entire disclosure, especially abstract, [0037] and claims. Administering the GdCD and performing MRI is considered to read on treating cancer or increasing the efficacy of radiation treatment of a cancer in a subject. Note that claim 1 only requires the GdCD is administered, as the compound is the same it follows it will have the same effect when administered as increasing the efficacy of radiation treatment. Regarding claim 5, the GdCD surface featured carboxyl and amino acid targeting groups and could feature chelating agents such as DOTA that contain carboxylic acids. See [0042],[0043] and [0047]. Regarding claim 6, GdCD could additionally feature a dye molecule. See [0043]. The GdCD was encapsulated by mesoporous silica nanoparticles (MSN) with an average diameter of 100-200 nm (meeting claims 11) and a pore size of about 3, 7 or 11 (meeting claims 12-13) with Gd nanoparticles having a diameter of about 1-20 nm (meeting claim 14). See [0039]-[0041].
Claim(s) 1,4-5 and 8 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Du et al. “Engineered gadolinium-doped carbon dots for magnetic resonance
imaging-guided radiotherapy of tumors”, Biomaterials 121 (2017) 109-120.
Du discloses engineered GdCDs for MRI guided radiotherapy, GdCD was found to act as a radiosensitizer in x-ray irradiation radiotherapy and enhanced therapeutic effectiveness of radiotherapy. See entire disclosure, especially abstract, sections 3.3 pages 115-117 and 3.6 pages 118-119. Regarding claim 8, Du discloses X-Ray irradiation could be assisted in real time with GdCD in real time, reading on concurrent administration.
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.
The factual inquiries 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.
Claim(s) 1,4-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Xie et al. (2017/0151351 A1), as applied to claims 1,4-6,9-15 above, in view of Du et al, cited above.
Xie is disclosed above. Xie is silent with respect to radiotherapy using X-ray irradiation.
Du is disclosed above and is used here for its disclosure on the use of GdCD as a radiosensitizer during X-Ray irradiation. Du also teaches that GdCD increased the therapeutic effectiveness of radiotherapy. See entire disclosure, especially abstract, sections 3.3 pages 115-117 and 3.6 pages 118-119. Regarding claims 7-9, Du teaches concurrent administration of GdCD and radiotherapy, however the reference clearly teaches using GdCD to image tumors, therefore to use GdCD to locate tumors before radiotherapy (administering before radiotherapy as recited in claim 7) would be very obvious to one of ordinary skill. Also, it would be obvious for one of ordinary skill in the art to administer GdCD after radiotherapy to image and diagnose the effectiveness of the treatment. Furthermore, obviously Du would have imaged by MRI after radiotherapy as it discloses the percent of tumor cells killed after X-ray irradiation.
Since both references are drawn to the same general field of diagnostic/ therapeutic uses of of GdCD, one of ordinary skill in the art would have a high expectation of success in using the MSN produced GdCD of Xie in X-ray irradiation radiotherapy. Reason to use the GdCD in radiotherapy stems from the teaching within Du that GdCD enhanced the therapeutic effectiveness of radiotherapy. Thus the claimed invention would have been prima fascia obvious to one of ordinary skill in the art because the technique of improving radiotherapy using GdCD was part of the ordinary capabilities of a person of ordinary skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES W ROGERS whose telephone number is (571)272-7838. The examiner can normally be reached 9:30-6:00 PM.
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/JAMES W ROGERS/ Primary Examiner, Art Unit 1618