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 (1-10, 16-17, 19-20, 24, 26, 30, and 34), drawn to a diagnostic assay system comprising a substrate having capture elements specific for Mycoplasma bovis, associated diagnostic kits, methods of processing the substrate for detection of analytes or infection, and antigenic peptides defining the capture specificity of the assay, in the reply filed on 05/20/2026 is acknowledged. Hence, claims 31 and 33 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Status of the Claims
Claims 1-10, 16-17, 19-20, 24, 26, 30, and 34 are pending and examined herein.
Priority
The present application, filed 10/03/2023, is a 371 of PCT/NZ22/50038, filed 04/08/2022, which claims foreign priority of NZ774831, filed 04/09/2021. The benefit is acknowledged and the claims examined herein are treated as having an effective filing date of 04/09/2021.
Information Disclosure Statement
The Information Disclosure Statement(s) filed 10/03/2023 and 12/23/2025 are acknowledged and have been considered.
Claim Objections
Claims 4, 5, and 30 are objected to because of the following informalities: Specifically, claims 4, 5, and 30 recite identifiers including “MBOVGP45,” whereas the specification appears to identify the corresponding proteins using “MBOVPG45” nomenclature. 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 1-10, 16, 17, 19, 20, 24, 26, and 34 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, claim 1 recites "at least two capture elements specific for Mycoplasma bovis (M. bovis) on the substrate," and further recites that "each capture element corresponding to and being able to bind a target analyte." However, it is unclear what relationship is required between the recited “target analyte” and the recited “capture elements specific for Mycoplasma bovis (M.bovis)." Specifically, claim 1 does not clearly indicate whether the target analyte is M. bovis itself, an M. bovis antigen, an anti-M. bovis antibody, an antibody fragment, or another analyte associated with M. bovis infection. Thus, the metes and bounds of the claimed substrate are unclear because the relationship between the M. bovis-specific capture elements and the target analyte to which each capture element binds is not clearly defined. For purposes of compact prosecution, claim 1 will be interpreted as requiring a substrate comprising at least two capture elements specific for M. bovis, wherein each capture element is capable of binding an analyte associated with M. bovis infection, including, but not limited to, antibody or antibody fragment that binds to an M. bovis-specific capture element. Appropriate correction is required.
Claims 2-5, 7-10, 16, 17, 19, 20, 24, 26, and 34 depend directly or indirectly from claim 1, these claims are indefinite for at least the same reasons as claim 1. Claims 2-10, 16, 17, 19, 20, 24, 26, and 34 inherit the unclear relationship between the "capture elements specific for M. bovis" and the "target analyte" recited in claim 1. Appropriate correction is required.
Regarding claim 6, claim 6 recites "the substrate of claim 1, wherein the target analyte is an antibody or an antibody fragment." However, claim 6 fails to resolve the ambiguity present in claim 1. Although claim 6 identifies the target analyte as an antibody or antibody fragment, claim 6 does not clearly define the relationship between the antibody or antibody fragment and the recited “capture elements specific for Mycoplasma bovis (M. bovis).” Specifically, it is unclear whether the antibody or antibody fragment is an anti-M bovis antibody, an antibody or antibody fragment that binds to an M. bovis antigen/capture element, or another antibody/fragment associated with M. bovis infection. Accordingly, the relationship between the M. bovis-specific capture elements and the antibody/antibody-fragment target analyte is unclear, rendering the metes and bounds of claim 6 indefinite. Appropriate correction is required.
Claim 17 recites the limitation "the secondary antibody comprises at least one anti-bovine IgG antibody" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Claim 17 depends from claim 9, and claim 9 does not provide antecedent basis for “the secondary antibody.” Claim 9 recites a kit comprising a substrate of claim 1 and optionally one or both of a background reducing reagent and a colorimetric detection system, but does not recite a secondary antibody. Although claim 10 recites “a secondary antibody,” claim 17 does not depend from claim 10. Therefore, it is unclear which previously recited secondary antibody is being referenced by “the secondary antibody,” rendering the scope of claim 17 unclear. Appropriate correction is required.
Regarding claim 20, it is unclear how the method is “processing a microarray” when the method step recites “providing a substrate of claim 1,” and claim 1 does not require the substrate to be a microarray. Thus, it is unclear whether the substrate of claim 1 must itself be configured as a microarray, whether the substrate is modified or processed into a microarray, or whether “microarray” merely describes the intended use of the substrate. Accordingly, the metes and bounds of claim 20 are unclear. For purposes of compact prosecution, claim 20 will be interpreted as requiring that the substrate of claim 1 is configured or used as a microarray during processing. Appropriate correction is required.
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.
(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, 9, 10, 19, and 24 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wolde-Miriam (“Miriam”) (US 6720160 B2).
Regarding claim 1, Miriam discloses a substrate comprising at least two capture elements specific for Mycoplasma bovis (M. bovis) on the substrate, each capture element corresponding to and being able to bind a target analyte. Specifically, Miriam teaches a lateral flow immunoassay substrate/membrane, stating that “the test device that incorporates the lateral flow technique is designed to contain specific antibody molecules that could be either monoclonal or polyclonal in origin” (col. 8, page 6), and that “each test contains a pair of antibodies, one of which is immobilized in a test line on a membrane (the capture antibody), and the second which is conjugated to a signal reagent designed to allow for the visualization of the assay endpoint, such as colloidal gold or colored lateX micro-spheres” (col. 8, page 6). Miriam further teaches that “the conjugate is removably attached to a separate pad which is overlapped onto the membrane impregnated with the capture antibody” (col. 8, page 6). Hence, Miriam teaches a membrane substrate comprising a pair of antibody capture/binding elements on the substrate.
Furthermore, Miriam discloses that the antibody pair binds the target analyte, stating that “the conjugate binds with the antigen of interest in the sample, and the antigen and conjugate are subsequently captured and precipitated by the immobilized antibody on the membrane” (col. 8, page 6). Also, Miriam discloses that “typically, each test is for a single pathogen, however, within that test, one or more antigens may be detected. For example, the antibodies which are used to detect the organism may contain more than one monoclonal antibody or may contain polyclonal antibodies” (col. 8, page 6). Additionally, Miriam teaches that “antibodies used in the lateral flow format may be prepared as a cocktail of two or more antibodies with specificity to any or a combination of antigen targets listed above for each pathogen” (col. 11, page 11). Miriam specifically identifies M. bovis as a pathogen and teaches that “for Mycoplasma bovis antigens which may be detected include, but are not limited to: membrane lipids containing glycolipids, neutral lipids, or polar lipids, membrane polysaccharides including lipopolysaccharides, membrane proteins including glycoproteins and membrane-bound enzymes, and cytoplasmic proteins” (col. 5, page 5), and that “the test strips contain antibodies specific for the following three infectious agents: Streptococcus agalactiae, Staphylococcus aureus, and Mycoplasma bovis” (Example 1, col. 12, page 8). Accordingly, Miriam teaches the claimed substrate comprising at least two M. bovis-specific capture elements on the substrate, each being able to bind a target analyte.
Regarding claim 2, Miriam teaches that the capture elements bind target analytes indicative of an M. bovis infection, stating that “this method is based on a lateral flow immuno-assay technique performed to detect antigens specific for multiple infectious agents which are known to cause and/or be encountered in cases of mastitis” (Abstract, page 1), and “mastitis is an inflammatory condition affecting the udders of milk-producing animals as a result of microbial infections” (Abstract, page 1). Also, as discussed above, Miriam identifies Mycoplasma bovis as one of the pathogens detected, stating that “the test strips contain antibodies specific for the following three infectious agents: Streptococcus agalactiae, Staphylococcus aureus, and Mycoplasma bovis” (Example 1, col. 12, page 8). Thus, the target analytes bound by the M. bovis-specific antibodies are indicative of an M. bovis infection.
Regarding claim 3, as discussed above, Miriam teaches antibody capture elements (col. 8, page 6). The antibody capture elements taught by Miriam are proteins and therefore fall within the claimed group.
Regarding claims 9 and 10, Miriam teaches a kit for detecting a plurality of target analytes in a sample comprising the substrate of claim 1 and a colorimetric detection system. In particular, Mariam discloses that “a further embodiment is a kit for the detection of a plurality of pathogens in milk, having a plurality of antibodies, wherein said antibodies are specific to an antigen from a pathogen of milk, wherein said antigens are from a plurality of pathogens, and a marker for the binding of said antibodies to said antigen” (column 3, page 4). Also, Miriam discloses that “a kit is provided which includes a multiple test Strip with or without a cup. The kit may also include directions for use or alternatively, the directions may be included on the cup or the back of the multiple test strip. The kit may also include a positive control, for example for a milk protein, to determine whether the milk or biological sample is usable. The kit may also contain a cleaning method, such as a packaged alcohol wipe to prepare the udder for obtaining the sample. The kit may also include a reusable bag for containing and disposing of any contaminated sample or kit paraphernalia” (column 12, page 8).
Regarding claim 19, Miriam teaches that the kit detects a Mycoplasma bovis infection in bovine. As discussed above, Mariam discloses that “a further embodiment is a kit for the detection of a plurality of pathogens in milk” (column 3, page 4). Also, “the pathogens which are to be identified herein may be any pathogen associated with mastitis in any milk-producing animal” (column 4, page 4). Lastly, “the test strips contain antibodies specific for the following three infectious agents: Streptococcus agalactiae, Staphylococcus aureus, and Mycoplasma bovis” (Example 1, col. 12, page 8).
Regarding claim 24, Miriam teaches a method for detecting an analyte in a sample comprising a substrate of claim 1, adding at least one sample to the substrate, and processing the substrate such that a detectable result is provided. Specifically, Miriam discloses that “the following steps take place on the surface of the device in order to complete the testing procedure: a biological sample including, but not limited to, milk is placed in the sample collection cup. The sample is then brought in contact with the lateral flow device by immersion of the parallel-arranged strips in the device into the milk sample. The sample and strips are left in contact for at least 1 minute or up to 15 minutes. The strips are then withdrawn from the cup. A positive reaction is revealed when coloration develops in the specific location(s) representing each microorganism detected” (Example 1, col. 12, page 8). Also, as discussed above, Miriam specifies that “the conjugate binds with the antigen of interest in the Sample, and the antigen and conjugate are subsequently captured and precipitated by the immobilized anti body on the membrane. The end of the reaction is visualized by coloration on the membrane” (column 8, page 6).
Accordingly, Miriam discloses, expressly or inherently, each and every limitation of claims 1-3, 9, 10, 19, and 24. Accordingly, claims 1-3, 9, 10, 19, and 24 are anticipated under 35 U.S.C. 102.
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.
Claims 4 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Miriam et al., as applied to claim 1 above, and further in view of Browning et al. (WO 2015/035474 A1 – IDS dated 10/03/2023) as evidenced by GenSeq alignment (refer to results provided).
With respect to the teachings of Miriam, see the discussion above, which applies equally here. The reference differs from the instant claim in failing to expressly teach or specify that the capture element is selected from the specific group recited in claim 4.
However, Browning teaches M. bovis PG45 MilA immunogenic proteins and their use as diagnostic capture antigens. In particular, Browning discloses that “the present specification teaches a serological test for Mycoplasma and the development of prophylactic and therapeutic compositions to treat ruminant subjects infected with or potentially exposed to Mycoplasma species” (Abstract, page 1). Browning further discloses “an immunogenic protein is identified useful in the identification of Mycoplasma spp and in the development of prophylactic and therapeutic compositions to manage Mycoplasma infection and exposure” (paragraph [0008], page 5), and “the immunogenic protein is referred to herein as Mycoplasma immunogenic lipase A (MilA). Reference to "MilA" includes the MilA protein from Mycoplasma bovis and homologs of MilA from other Mycoplasma spp as well as antibody-binding fragments of MilA” (paragraph [0008], page 5). Browning expressly identifies the Mycoplasma bovis PG45 MilA sequence, stating that “examples of region 1 of MilA include MilA from Av Aevis PG45 strain (type strain) [SEQ ID NO:2]” (paragraph [0008], page 5), and further identifying “amino acid sequence of MilA from M. bovis PG45 (type strain)” as SEQ ID NO: 15 (Table 1, page 10).
Browning further teaches a serological diagnostic method using immobilized MilA proteins, stating that “taught herein is a method for detecting current or prior exposure of a ruminant subject to a species of a Mycoplasma, the method comprising contacting an antibody containing sample from the subject with an immobilized protein or derivative thereof comprising the amino acid sequence set forth in SEQ ID NO:15 or an amino acid sequence having at least 40% similarity to SEQ ID NO:15 after optimal alignment or an antibody- binding fragment of the protein, for a time and under conditions sufficient for an antibody specific for the protein, if present in the sample, to bind to the protein and then detecting for the presence of bound antibody where the presence of bound antibody is indicative of current or prior exposure to Mycoplasma spp.” (paragraph [0011], page 6). Lastly, Browning discloses “a device for screening for current or prior exposure of a subject to a species of Mycoplasma, the device comprising an immobilized protein or derivative thereof comprising the amino acid sequence set forth in SEQ ID NO-15 or an amino acid sequence having at least 40% similarity to SEQ ID NO:15 after optimal alignment or an antibody-binding fragment of the protein, the device further comprising means to contact a sample from the subject with the immobilized protein” (paragraph [0014, page 7).
The GenSeq alignment evidence further demonstrates that the instant MilAab (SEQ ID NO: 10) corresponds to Browning’s disclosed Mycoplasma bovis PG45 MilA protein sequence. Specifically, GenSeq identifies Browning’s sequence BBW28241 as “Mycoplasma bovis PG45 strain MilA protein, SEQ ID 15,” associated with WO 2015/035474 A1, and indicates that it is a diagnostic test protein for Mycoplasma infection. The GenSeq alignment of instant MilAab (SEQ ID NO: 10) to Browning’s Mycoplasma bovis PG45 MilA sequence demonstrates 97.7% query match, 98.4% best local similarity, 598 matches, 5 conservative substitutions, 5 mismatches, 0 indels, and 0 gaps. Thus, Browning teaches the known Mycoplasma bovis PG45 MilA diagnostic protein, and the GenSeq evidence establishes that instant MilAab (SEQ ID NO:10) corresponds to Browning’s disclosed PG45 MilA protein and differs only minimally therefrom.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the Mycoplasma bovis-specific substrate/test device of Miriam to utilize Browning’s known Mycoplasma bovis PG45 MilA diagnostic protein corresponding to MilAab (SEQ ID NO:10), or an epitope thereof, as a Mycoplasma bovis-specific capture element on the substrate. Miriam teaches a substrate comprising Mycoplasma bovis-specific capture elements for detecting Mycoplasma bovis-associated analytes, while Browning teaches that Mycoplasma bovis PG45 MilA immunogenic proteins and antibody-binding fragments are useful immobilized diagnostic antigens for detecting Mycoplasma exposure. A person of ordinary skill in the art would have been motivated to select Browning’s Mycoplasma bovis PG45 MilA protein, or an antibody-binding fragment/epitope thereof, as the claimed capture element because Browning expressly teaches its diagnostic use as an immobilized protein for binding antibodies in an antibody-containing sample, and Miriam provides the Mycoplasma bovis substrate-based assay framework. A person of ordinary skill in the art would have had a reasonable expectation of success because the modification merely uses a known Mycoplasma bovis immunogenic diagnostic protein or highly similar corresponding sequence as the capture element in a known Mycoplasma bovis immunoassay substrate, and the GenSeq alignment shows that instant MilAab (SEQ ID NO: 10) is highly similar to Browning’s known Mycoplasma bovis PG45 MilA protein with only minimal sequence differences and no indels or gaps. Thus, using MilAab (SEQ ID NO: 10), or an epitope thereof, as a Mycoplasma bovis-specific capture element would have been a predictable use of a known Mycoplasma bovis diagnostic antigen in a known immunological assay substrate.
Regarding claim 6, with respect to the teachings of Miriam, see the discussion above, which applies equally here. The reference differs from the instant claim in failing to expressly teach or specify in the same direct manner relied upon herein, that the target analyte corresponding to the capture element is an antibody or antibody fragment.
However, as discussed above, Browning teaches detecting an antibody target analyte using an immobilized Mycoplasma protein or antibody-binding fragment.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Miriam’s M. bovis-specific substrate/test device so that the target analyte is an antibody or antibody fragment, as taught by Browning, by using an immobilized Mycoplasma/M. bovis immunogenic protein, derivative, or antibody-binding fragment as the capture element to bind antibody present in a sample. A person of ordinary skill in the art would have been motivated to make this modification because Browning expressly teaches that immobilized Mycoplasma proteins or antibody-binding fragments are useful for detecting current or prior exposure to Mycoplasma by binding antibodies in an antibody-containing sample, while Miriam already provides an M. bovis-specific immunoassay substrate format. A person of ordinary skill in the art would have had a reasonable expectation of success because the modification uses the same predictable antigen-antibody binding principle relied upon in immunoassays, and Browning expressly teaches that antibodies specific for the immobilized Mycoplasma protein, if present in the sample, bind to the immobilized protein and are detected as bound antibody. Thus, modifying Miriam’s M. bovis-specific substrate to detect an antibody or antibody-fragment target analyte using Browning’s immobilized Mycoplasma/M. bovis protein or antibody-binding fragment would have been a predictable use of known serological capture reagents for their established purpose.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Miriam, as applied to claim 1 above, and further in view of Browning et al., Khan et al. (Immunoproteomic Identification of MbovP579, a Promising Diagnostic Biomarker for Serological Detection of Mycoplasma Bovis Infection. Oncotarget. Vol. 7, No. 26, June 2016 – IDS dated 10/03/2023), and UniProt Accession Nos. A0A454API1 (https://www.uniprot.org/uniprotkb/A0A454API1/entry), A0A454APB4 (https://www.uniprot.org/uniprotkb/A0A454APB4/entry), A0A454APM8 (https://www.uniprot.org/uniprotkb/A0A454APM8/entry), A0A454AP38 (https://www.uniprot.org/uniprotkb/A0A454AP38/entry), A0A454AQ03 (https://www.uniprot.org/uniprotkb/A0A454AQ03/entry) as evidenced by Wise et al. (Complete Genome Sequence of Mycoplasma Bovis Type Strain PG45 (ATCC 25523). Infection and Immunity. Vol. 79, no. 2, February 2011).
With respect to the teachings of Miriam, see the discussion above, which applies equally here. The reference differs from the instant claim in failing to expressly teach or specify that the capture element comprises the specific combination of M. bovis PG45 sequences recited in claim 5.
However, as discussed above with respect to claim 4, Browning teaches M. bovis PG45 MilA immunogenic proteins and their use as diagnostic capture antigens.
Khan further supports the motivation to use multiple M. bovis antigenic proteins in serological detection, stating that “a lack of knowledge regarding the antigenic properties of Mycoplasma bovis proteins prevents the effective control of bovine infections using immunological approaches” (Abstract, page 39376). Khan further discloses that “although many serodiagnostic assays have been developed, improved serodiagnostic assays based on more sensitive and specific antigens are still required for the early detection of the M. bovis specific IgG in exposed cattle populations” (Introduction, page 39377). Khan also discloses that “in this study, we detected and characterized a specific and sensitive M. bovis diagnostic biomarker” (Abstract, page 39376), and that “thirty-nine proteins were identified, 32 of which were previously unreported. Among them, immunoinformatics predicted eight antigens, encoded by Mbov_0106, 0116, 0126, 0212, 0275, 0579, 0739, and 0789, to have high immunological value” (Abstract, page 39376). Khan further teaches that “iELISA demonstrated that all of the recombinant proteins generated antibody responses in both experimentally and naturally infected animals, indicating that recombinant protein antigenicity depended on their 3-dimensional structures in addition to primary structures. Based on the intensity of antibody responses, the 4 recombinant membrane-associated lipoproteins (Table 3) together induced higher antibody responses than the 4 recombinant cytoplasmic proteins” (Results, page 39383).
UniProt and GenSeq alignment (as discussed above) evidence further demonstrate that the proteins recited in claim 5 correspond to known Mycoplasma bovis PG45 proteins. UniProt teaches known Mycoplasma bovis PG45 proteins corresponding to the proteins recited in claim 5, as evidenced by Wise. Wise teaches that “this complete and fully assembled genome sequence of Mycoplasma bovis type strain PG45 is the first available for this species” (Abstract, page 982), and further teaches that “the complete genome sequence of M. bovis type strain PG45 is available in GenBank under accession number CP002188” (page 982). The UniProt alignment results demonstrate that the claimed sequences correspond to known PG45 proteins, but the alignments do not establish exact identity over the full length of each claimed sequence. Rather, the alignments show highly similar corresponding PG45 proteins having minimal sequence differences from the claimed sequences as follows: SEQ ID NO: 10 corresponds to UniProt A0A454API1 / MBOVPG45_0710, with 97.7% query match, 598 matches, 5 mismatches, 0 indels, and 0 gaps; SEQ ID NO: 11 corresponds to UniProt A0A454APB4 / MBOVPG45_0310, with 98.4% query match, 362 matches, 4 mismatches, 0 indels, and 0 gaps; SEQ ID NO: 12 corresponds to UniProt A0A454APM8 / MBOVPG45_0320, with 99.2% query match, 717 matches, 0 mismatches, 0 indels, and 0 gaps; SEQ ID NO: 13 corresponds to UniProt A0A454AP38 / MBOVPG45_0402, with 99.1% query match, 622 matches, 0 mismatches, 0 indels, and 0 gaps; and SEQ ID NO: 14 corresponds to UniProt A0A454AQ03 / MBOVPG45_0117, with 96.6% query match, 313 matches, 1 mismatch, 0 indels, and 0 gaps. Thus, the claimed sequences recited in claim 5 correspond to known M. bovis PG45 proteins, and the claimed SEQ ID NOs differ only minimally from the corresponding known proteins.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the M. bovis-specific substrate/test device of Miriam to use capture elements comprising the claimed sequences corresponding to known M. bovis PG45 proteins, namely MilAab (SEQ ID NO: 10), MBOVPG45_310 (SEQ ID NO: 11), MBOVGP45_320 (SEQ ID NO: 12), MBOVGP45_0402 (SEQ ID NO: 13), and MBOVGP45_0117 (SEQ ID NO: 14). Miriam teaches an M. bovis-specific substrate-based immunoassay framework, Browning teaches that M. bovis PG45 MilA immunogenic proteins and antibody-binding fragments are useful immobilized diagnostic antigens for detecting Mycoplasma exposure, and Khan confirms that multiple M. bovis antigenic proteins were known to generate antibody responses and that improved serodiagnostic assays based on sensitive and specific antigens were desirable. A person of ordinary skill in the art would have been motivated to select a combination of known M. bovis PG45 immunogenic proteins as capture elements because using multiple M. bovis-specific antigenic proteins would predictably broaden antigen coverage, account for antigenic variability, and improve the likelihood of detecting antibodies or other target analytes associated with M. bovis exposure. A person of ordinary skill in the art would have had a reasonable expectation of success because the modification merely selects claimed sequences that differ only minimally from corresponding known M. bovis PG45 proteins for use in the capture-element positions of a known M. bovis immunoassay substrate, and the UniProt/GenSeq alignments show that the claimed sequences are highly similar to the corresponding known PG45 proteins, with very high query match values and few or no mismatches, no indels, and no gaps. Thus, using the claimed sequences corresponding to known PG45 proteins and differing only minimally therefrom as M. bovis-specific capture elements would have been a predictable use of known M. bovis proteins in a known serological capture assay platform.
Claims 7, 8, 16, and 17 are rejected under 35 U.S.C 103 as being unpatentable over Miriam et al., as applied to claims 1 and 9 above, and further in view of Khan et al.
Regarding claims 7 and 8, with respect to the teachings of Miriam, see the discussion above, which applies equally here. The reference differs from the instant claim in failing to expressly teach or specify in the same direct manner relied upon herein, the solid substrate option of claim 7, including a microtiter plate as recited in claim 8.
Khan teaches a solid substrate in the form of a microtiter plate, stating that “96-well microtitre plates were coated overnight at 4°C with 125 ng of WCPs and 250 ng of each purified recombinant protein diluted in 100 μL sodium carbonate buffer (pH 9.6) and washed with PBS containing 0.05% Tween 20 (PBST). After blocking, the plates were probed for 1 h at 37°C with sera at various dilutions collected from the experimental and naturally infected groups of calves described above. After washing with PBST, plates were incubated for 1 h at 37°C with goat anti-bovine IgG-HRP (1:5000) and washed with PBST followed by the addition of tetramethylbenzidine (TMB)/H2O2 as a substrate. The reaction was stopped after 10 min and OD values were obtained with a microtiter plate reader at 630 nm (OD630)” (Materials and Methods, page 39392).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the M. bovis-specific substrate/test device of Miriam to utilize a solid substrate, including a microtiter plate as taught by Khan. Miriam teaches an M. bovis-specific immunoassay substrate/test device comprising M. bovis-specific capture elements for detecting M. bovis-associated analytes, while Khan teaches the conventional use of 96-well microtiter plates coated with M. bovis whole cell proteins or purified recombinant proteins for M. bovis serological detection. A person of ordinary skill in the art would have been motivated to employ the known microtiter plate format because it provides a conventional solid support for immobilized M. bovis antigens and facilitates detection of antibody binding in serological assays. A person of ordinary skill in the art would have had a reasonable expectation of success because the modification merely substitutes a known solid immunoassay support format for another known immunoassay substrate format while preserving the same antigen-antibody detection principles. Thus, using a solid substrate, including a microtiter plate, would have been a predictable design choice in implementing the known M. bovis immunoassay substrate.
Regarding claims 16 and 17, with respect to the teachings of Miriam, see the discussion above, which applies equally here. The reference differs from the instant claim in failing to expressly teach or specify in the same direct manner relied upon herein, that the colorimetric detection system comprises HRP-labelled anti-bovine IgG Ab or that the secondary antibody comprises at least one anti-bovine IgG antibody.
However, Khan teaches an HRP-labelled anti-bovine IgG antibody for use as a secondary antibody in an M. bovis serological assay. Specifically, Khan teaches that, “[a]fter washing with PBST, plates were incubated for 1 h at 37°C with goat anti-bovine IgG-HRP (1:5000) (Southern Biotech Co. USA) and washed with PBST followed by the addition of tetramethylbenzidine (TMB)/H2O2 (Wuhan Keqian Biological Co., Ltd, China) as a substrate” (Khan, Materials and Methods, page 39392). Khan further teaches that, for establishment of rMbovP579-based iELISA, “commercial goat anti-bovine IgG-HRP secondary antibody was diluted to 1:3000, 1:5000, and 1:8000 (v/v)” and that “TMB/H2O2 was added as substrate to the wells” (Khan, Materials and Methods, page 39393).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the M. bovis kit and colorimetric detection system of Miriam to utilize Khan’s HRP-labelled anti-bovine IgG antibody as the antibody/secondary antibody component of the detection system. Miriam teaches a diagnostic kit employing M. bovis-specific capture elements and a colorimetric detection system for identifying M. bovis-associated analytes, while Khan teaches the conventional use of goat anti-bovine IgG-HRP secondary antibodies in M. bovis serological assays. A person of ordinary skill in the art would have been motivated to employ Khan’s anti-bovine IgG-HRP reagent because it specifically recognizes bovine antibodies bound to immobilized M. bovis antigens and generates a detectable HRP-mediated signal in the presence of TMB/H2O2 substrate. A person of ordinary skill in the art would have had a reasonable expectation of success because HRP-conjugated anti-bovine IgG antibodies were routinely used in bovine immunoassays, and Khan demonstrates successful use of the reagent in M. bovis ELISA formats. Thus, incorporating the known HRP-labelled anti-bovine IgG secondary antibody into Miriam’s known M. bovis assay kit would have represented a predictable use of a known detection reagent for its established purpose.
Claim 20 is rejected under 35 U.S.C 103 as being unpatentable over Miriam et al., as applied to claim 1 above, and further in view of Carter et al. (Lateral Flow Microarrays: A Novel Platform for Rapid Nucleic Acid Detection Based on Miniaturized Lateral Flow Chromatography. Nucleic Acids Research. Vol. 35, No. 10, May 2007) and Bell et al. (An Integrated Digital Imaging System and Microarray Mapping Software for Rapid Multiplexed Quantitation of Protein Microarray Immunoassays. Grace Bio-Labs, 2017).
With respect to the teachings of Miriam, see the discussion above, which applies equally here. These references differ from the instant claim in failing to expressly teach or specify processing the substrate as a microarray, nor does Miriam expressly teach that the detectable result is given by two or more of: (i) at least one fiduciary marker, (ii) at least one positive colorimetric control, and (iii) at least one positive control to monitor assay performance.
However, Carter teaches a lateral-flow microarray format and processing a lateral-flow-compatible substrate as a microarray, stating that “here we describe a novel microarray platform capable of rapid, sensitive nucleic acid detection without specialized instrumentation. The approach is based on a miniaturized lateral flow device that makes use of hybridization-mediated target capture (Abstract, page 1). Carter further discloses that “the use of microarray technology increases the potential information capacity of lateral flow” (Abstract, page 1), and “the lateral flow microarray (LFM) enables sequence specific detection, opening the door to highly multiplexed implementations for broad-range assays well suited for point-of-care and other field applications” (Abstract, page 1). Furthermore, Carter discloses that “a lateral flow compatible nitrocellulose membrane was used as the LFM substrate” (Materials and Methods, page 3). Also, Carter teaches adding a sample to the LFM substrate and processing it to obtain a detectable result, stating that “detection of NASBA reaction products by LFM was accomplished by introducing a 2-ml aliquot of a 20-ml NASBA reaction into 8 ml of LFM running buffer” *Materials and Methods, page 4), and “the final volume of solution applied to LFMs was 10 ml. Following completion of sample flow, LFM membranes were removed from plastic housings and allowed to air dry prior to scanning with a standard flatbed PC scanner” (Materials and Methods, page 4). In addition, the “image files were analyzed using GenePix Pro 6.0 to quantify microarray spot intensities” (Materials and Methods, page 4).
Moreover, Carter teaches a positive control on the lateral-flow microarray, stating that “LFMs carried dnaR89, which hybridizes directly to the microsphere conjugated detection probe, as a positive hybridization control” (Results, page 7), and “positive control features were printed as the left most element of each LFM row to assist in feature identification” (Results, page 7). Lastly, Carter teaches that the assay produces a colorimetric detectable signal, stating that “hybridization-mediated capture of analyte at the cognate capture element of the microarray and nonoverlapping hybridization to dyed microsphere conjugated detection oligonucleotide generates a colorimetric signal arising from an increased local concentration of dyed microsphere particles” (Results, page 4). Hence, Carter teaches a lateral-flow microarray having positive hybridization control features, which generates a colorimetric signal.
Bell teaches a fiduciary/fiducial marker for microarray processing, stating that “identification of the array origin is accomplished using an image recognition method. A set of spots is printed in the first row of the microarray (Figure 5) to serve as an image-recognition and alignment feature. The alignment spots can be a pattern of spots separated by blanks, a dilution series, or any other features that fluoresce after assay” (page 13). Bell further discloses that “a set of fiducial markers (biotinylated goat IgG) was placed in the first row for automated spot finding” (page 36).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the M. bovis-specific substrate of Miriam by configuring and processing the substrate according to Carter’s lateral-flow microarray format, including Carter’s positive hybridization control features, which generate a colorimetric signal, and further including Bell’s fiducial/fiduciary alignment markers. Miriam supplies the M. bovis-specific substrate/capture-element framework of claim 1, while Carter teaches that a lateral-flow-compatible nitrocellulose substrate can be patterned and processed as a lateral-flow microarray by adding a sample, allowing capillary flow across the substrate, scanning the processed substrate, and quantifying microarray spot intensities. A person of ordinary skill in the art would have been motivated to apply Carter’s lateral-flow microarray format to Miriam’s M. bovis substrate because Carter expressly teaches that microarray technology increases the information capacity of lateral flow and enables multiplexed detection, which would predictably improve Miriam’s multiplex M. bovis/pathogen substrate by allowing array-based processing and analysis of multiple capture features on a lateral-flow-compatible substrate. A person of ordinary skill in the art would have further been motivated to include Bell’s fiducial/fiduciary alignment markers because Bell teaches that fiducial/alignment features permit image-recognition, identification of the array origin, and automated spot finding during microarray processing, thereby improving reliable localization and quantification of detectable results. A person of ordinary skill in the art would have had a reasonable expectation of success because Miriam, Carter, and Bell each rely on known immobilized capture elements on substrates, sample contact/processing, and detectable binding results; Carter demonstrates successful processing of a lateral-flow-compatible nitrocellulose microarray substrate with positive hybridization control features that generate a colorimetric signal; and Bell demonstrates successful use of fiducial markers for automated microarray spot finding. Thus, configuring Miriam’s M. bovis-specific substrate as a Carter-style lateral-flow microarray and including Bell’s fiducial markers would have been a predictable use of known microarray/lateral-flow assay features for their established purposes.
Claims 26 and 34 are rejected under 35 U.S.C. 103 as being unpatentable over Miriam et al., as applied to claims 1 and 24 above, and further in view of Johnson et al. (US 20160223536 A1).
With respect to the teachings of Miriam, see the discussion above, which applies equally here. Also, Miriam teaches a positive control to monitor assay performance, stating that “a control band or line comprised of a different antibody/antigen reaction is present on the membrane strip. The control line is not influenced by the presence or absence of the antigen in the milk and therefore should be present in all reactions” (column 9, page 7). However, Miriam does not expressly teach or specify that the detectable result includes at least one fiduciary marker.
Johnson teaches a fiduciary/fiducial marker on a lateral-flow substrate, stating that “in some embodiments as shown in FIG. 11A, one or more fiducials 1136 may be provided on the lateral flow carrier, membrane or substrate 1100. A fiducial(s) 1136 may aid in determining an image area that represents the binding region(s). This may increase quantitation accuracy as it may allow more accurate collection of signal from binding region(s)” (paragraph [0156], page 15). Johnson further discloses that “a fiducial(s) 1136 may allow algorithmic localization of test region(s) 1108A of interest. A fiducial(s) 1136 may be used to verify correct insertion of a lateral flow device test strip” (paragraph [0156], page 15). Lastly, Johnson discloses that “in some embodiments, fiducials 1136 may be formed in the shape of lines, crosses, circles, discs, or any other shape which may be useful. In some embodiments it may be desirable to print or otherwise cause to bind fiducials to a lateral flow substrate or membrane which may comprise ink, fluorescent dyes, fluorescent particles, or a control material” (paragraph [0156], page 15).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Miriam’s lateral-flow M. bovis assay substrate and method to include Johnson’s fiduciary/fiducial marker on the lateral-flow carrier, membrane, or substrate, while retaining Miriam’s positive control/control line for monitoring assay performance. Miriam already teaches adding a biological sample to a lateral-flow substrate/test device having Mycoplasma bovis-specific capture elements and processing the substrate to produce a detectable colorimetric result, including a control line that should be present in all reactions to verify assay performance. Johnson teaches that fiducials may be provided on a lateral-flow carrier, membrane, or substrate to aid in determining the image area corresponding to binding regions, improve quantitation accuracy, allow algorithmic localization of test regions, verify correct insertion of the lateral-flow strip, and verify image quality or focus. A person of ordinary skill in the art would have been motivated to include Johnson’s fiducial marker in Miriam’s lateral-flow M. bovis assay because doing so would predictably improve localization, imaging, verification, and quantitation of the detectable test/control regions on the lateral-flow substrate, while preserving Miriam’s pathogen-specific M. bovis detection chemistry and assay-performance control line. A person of ordinary skill in the art would have had a reasonable expectation of success because both Miriam and Johnson concern lateral-flow assay substrates using immobilized binding regions, sample flow, detectable results, and control/detection regions, and Johnson expressly teaches that fiducials can be printed or otherwise bound to a lateral-flow substrate or membrane for their established purpose of assisting image-area determination, test-region localization, and quantitation. Thus, the detectable result would include two or more of the claimed control concepts: Miriam’s positive control/control line to monitor assay performance and Johnson’s fiduciary/fiducial marker on the lateral-flow substrate.
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Browning et al., in view of Wawegama et al. (Development of a Recombinant Protein-Based Enzyme-Linked Immunosorbent Assay for Diagnosis of Mycoplasma Bovis Infection in Cattle. Clinical and Vaccine Immunology. Vol. 21, No. 2, February 2014), as evidenced by GenSeq alignment.
As discussed above, Browning teaches isolated Mycoplasma immunogenic lipase A (MilA) proteins and antibody-binding fragments thereof. Browning further teaches isolated proteins comprising such sequences, stating that “the present specification teaches an isolated protein comprising an amino acid sequence selected from the list consisting of SEQ ID NQs: 1 through 8 or 15 through 21” (paragraph [00630, page 19), and that “enabled herein is an isolated protein comprising an amino acid sequence set forth in SEQ ID NO:15” (paragraph [0072], page 19).
However, Browning does not expressly teach the instant isolated peptide group, including MilAab (SEQ ID NO: 10) recited in claim 30.
But, as discussed above, the GenSeq alignment evidence further demonstrates that the instant MilAab (SEQ ID NO: 10) corresponds to Browning’s disclosed Mycoplasma bovis PG45 MilA protein sequence. Specifically, GenSeq identifies Browning’s sequence BBW28241 as “Mycoplasma bovis PG45 strain MilA protein, SEQ ID 15,” associated with WO 2015/035474 A1, and indicates that it is a diagnostic test protein for Mycoplasma infection. The GenSeq alignment of instant MilAab (SEQ ID NO: 10) TO Browning’s Mycoplasma bovis PG45 MilA sequence demonstrates 97.7% query match, 98.4% best local similarity, 598 matches, 5 conservative substitutions, 5 mismatches, 0 indels, and 0 gaps. Thus, Browning teaches the known Mycoplasma bovis PG45 MilA diagnostic protein, and the GenSeq evidence establishes that instant MilAab (SEQ ID NO:10) corresponds to Browning’s disclosed PG45 MilA protein and differs only minimally therefrom.
Wawegama further supports selection of the claimed MilAab peptide/fragment, stating that “different regions of MilA were expressed in Escherichia coli as glutathione S-transferase (GST) fusion proteins and recombinant products from the amino-terminal end shown to have strong immunoreactivity with M. bovis-specific bovine sera” (Abstract, page 196) and “the most immunoreactive fusion protein, GST-MilA-ab, was used to develop indirect IgM and IgG enzyme-linked immunosorbent assays (ELISAs)” (Abstract, page 196). Wawegama further teaches that for the identification of mycoplasma immunogenic lipase A, “mass spectrometric analysis identified the coding sequence as that of MBOVPG45_0710, which is predicted to be a 302.9-kDa membrane protein in M. bovis PG45 (NCBI accession number YP_004056499)” (Results, page 198). Furthermore, for the expression of recombinant MilA, Wawegama discloses that “GSTMilA-AB and GST-MilA-A reacted weakly, but GST-MilA-ab (92.9 kDa) reacted strongly with M. bovis-specific calf sera” (Results, page 198). Lastly, Wawegama discloses that “under experimental conditions an IgG ELISA based on a fragment of MilA is a fast, convenient, sensitive, and reproducible method to detect cattle infected with M. bovis. The milA-ab fragment was generated from the AB gene fragment and excluded the hydrophobic region at the start of the AB region (the first 100 bp), improving the expression and solubility of the recombinant protein, making it more suitable for larger-scale recombinant protein production” (Results, page 201).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify and/or select from Browning’s isolated Mycoplasma bovis PG45 MilA protein, including SEQ ID NO: 15 and antibody-binding fragments thereof, to obtain the isolated MilAab peptide/fragment corresponding to SEQ ID NO: 10, as taught and suggested by Wawegama and evidenced by GeneSeq. Browning teaches isolated Mycoplasma bovis PG45 MilA proteins and antibody-binding fragments useful for identifying Mycoplasma infection and expressly teaches isolated protein comprising SEQ ID NO: 15. Wawegama provides the specific motivation to select the MilAab fragment because Wawegama teaches that different MilA regions were expressed as recombinant GST fusion proteins, that GST-MilA-ab was the most immunoreactive fusion protein, that GST-MilA-ab reacted strongly with M. bovis-specific calf sera, and that the MilA-ab fragment improved expression and solubility by excluding the hydrophobic region at the start of the AB region, making it suitable for larger-scale recombinant protein production. A person of ordinary skill in the art would have been motivated to select the MilAab fragment from Browning’s known Mycoplasma bovis PG45 MilA protein because Wawegama shows that the MilAab fragment retained strong M. bovis-specific immunoreactivity and was useful in sensitive and specific serological detection of M. bovis infection. A person of ordinary skill in the art would have had a reasonable expectation of success because Browning expressly teaches the full-length Mycoplasma bovis PG45 MilA sequence and antibody-binding fragments thereof, Wawegama successfully expressed and used GST-MilA-ab as an immunoreactive recombinant MilA fragment in ELISA assays, and the GeneSeq alignment shows that instant MilAab (SEQ ID NO: 10) is highly similar to Browning’s known Mycoplasma bovis PG45 MilA sequence, with 97.7% query match, 98.4% best local similarity, 598 matches, only 5 mismatches, 5 conservative substitutions, and no indels or gaps. Thus, the claimed isolated MilAab peptide would have been a predictable isolated fragment/peptide of a known Mycoplasma bovis PG45 MilA diagnostic protein.
Ultimately, claims 4-8, 16-17, 20, 26, 30, and 34 are rejected under 35 U.S.C. 103 because the cited references, alone or in combination, teach or suggest each limitation of the claimed subject matter, and one of ordinary skill in the art would have been motivated to combine the teachings with a reasonable expectation of success for the reasons set forth above.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-10, 16, 17, 19, 20, 24, 26, and 34 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 18, 20, and 21 of U.S. Patent No. 12,235,269 B2 in view of Browning et al., Carter et al., Bell et al., Johnson et al., UniProt Accession Nos. A0A454API1, A0A454APB4, A0A454APM8, A0A454AP38, and A0A454AQ03, as evidenced by Wise et al. and GenSeq alignment evidence.
Patent claim 1 teaches a substrate comprising at least two capture elements specific for SARS-CoV-2 on the substrate, each capture element corresponding to and being able to bind a target analyte, and optionally a plurality of control elements selected from at least one fiduciary marker, at least one negative control to monitor background signal, at least one negative control to monitor assay specificity, at least one positive colorimetric control, at least one positive control to monitor assay performance, and any combination thereof. This corresponds to the substrate/capture-element/control-element framework recited in instant claim 1. Patent claim 1 does not expressly teach that the capture elements are specific for Mycoplasma bovis (M. bovis).
Browning teaches M. bovis-specific immunogenic proteins useful as immobilized antigens for serological detection of Mycoplasma/M. bovis exposure. Accordingly, it would have been obvious to modify the substrate of patent claim 1 to use Browning’s M. bovis-specific immunogenic proteins as capture elements in place of SARS-CoV-2-specific capture elements. Such a modification would have been an obvious substitution of one known disease-specific capture antigen system for another in the same substrate-based immunological assay format. Instant claim 1 is therefore not patentably distinct.
Instant claim 2 depends from claim 1 and further recites that the capture elements bind target analytes, wherein the target analytes are indicative of an M. bovis infection. Patent claim 1 teaches the substrate/capture-element framework inherited from instant claim 1. Patent claim 2 further teaches that the capture elements bind target analytes, wherein the target analytes are antibodies produced in response to SARS-CoV-2 infection. Patent claims 1 and 2 do not expressly teach that the bound target analytes are indicative of an M. bovis infection. Browning teaches that antibody binding to immobilized Mycoplasma/M. bovis immunogenic proteins is indicative of current or prior exposure to Mycoplasma. Accordingly, substituting the M. bovis-specific antigen system taught by Browning into the patented substrate framework would have rendered instant claim 2 not patentably distinct.
Instant claim 3 depends from claim 1 and recites that the capture element is selected from a protein, lipoprotein, glycoprotein, protein fragment, peptide, polypeptide, polypeptide fragment, antigen, antigen fragment, antigenic determinant, epitope, hapten, immunogen, immunogen fragment, or any combination thereof. Patent claim 3 teaches that the capture elements are selected from SARS-CoV-2 membrane protein, nucleocapsid protein, spike protein, and any combination thereof. Patent claim 3 therefore teaches protein capture elements corresponding to the type of capture elements recited in instant claim 3. To the extent instant claim 3 uses broader terminology, Browning teaches M. bovis immunogenic proteins and antibody-binding fragments suitable for immobilized serological capture. Accordingly, instant claim 3 is not patentably distinct from patent claim 3 in view of Browning.
Instant claim 4 depends from claim 1 and recites that the capture element is selected from a group including MilAab (SEQ ID NO: 10), MBOVGP45_310 (SEQ ID NO: 11), MBOVGP45_320 (SEQ ID NO: 12), MBOVGP45_0402 (SEQ ID NO: 13), MBOVGP45_0117 (SEQ ID NO: 14), MBOVG45_0353 (SEQ ID NO: 15), MBOVGP45_0416 (SEQ ID NO: 16), MBOVGP45_0565 (SEQ ID NO: 17), MBOVGP45_0710-EF (SEQ ID NO: 18), an epitope thereof, and a combination thereof. Patent claims 1 and 3 teach the same substrate/capture-element framework, including protein capture elements and epitopes/fragments thereof, but do not expressly recite the specific M. bovis sequences of instant claim 4. Browning teaches M. bovis PG45 MilA immunogenic proteins and antibody-binding fragments useful as immobilized diagnostic antigens for serological detection. Browning further identifies the amino acid sequence of MilA from M. bovis PG45 as SEQ ID NO: 15. The GenSeq alignment evidence shows that instant MilAab (SEQ ID NO: 10) corresponds to Browning’s M. bovis PG45 MilA protein, with 97.7% query match, 98.4% best local similarity, 598 matches, 5 conservative substitutions, 5 mismatches, 0 indels, and 0 gaps. Accordingly, it would have been obvious to modify the substrate of patent claims 1 and 3 to use Browning’s known M. bovis PG45 MilA diagnostic protein corresponding to MilAab (SEQ ID NO: 10), or an epitope thereof, as the capture element. Instant claim 4 is therefore not patentably distinct from patent claims 1 and 3 in view of Browning and the GenSeq alignment evidence.
Instant claim 5 depends from claim 1 and recites that the capture element comprises MilAab (SEQ ID NO: 10), MBOVGP45_310 (SEQ ID NO: 11), MBOVGP45_320 (SEQ ID NO: 12), MBOVG45_0402 (SEQ ID NO: 13), and MBOVGP45_0117 (SEQ ID NO: 14). Patent claims 1 and 3 teach the same substrate/capture-element framework but do not expressly recite the five specific M. bovis PG45 sequences of instant claim 5. Browning teaches M. bovis immunogenic proteins, including MilA-related proteins, for immobilized serological detection. Khan further teaches that multiple M. bovis antigenic proteins were known to generate antibody responses and that improved serodiagnostic assays based on sensitive and specific antigens were desirable. UniProt Accession Nos. A0A454API1, A0A454APB4, A0A454APM8, A0A454AP38, and A0A454AQ03, as evidenced by Wise et al. and the GenSeq alignment evidence, teach known M. bovis PG45 proteins corresponding to the claimed SEQ ID NOs with minimal sequence differences. Accordingly, it would have been obvious to modify the substrate of patent claims 1 and 3 to use capture elements comprising the claimed sequences corresponding to known M. bovis PG45 proteins, where the claimed sequences differ only minimally from the known PG45 proteins. Instant claim 5 is therefore not patentably distinct from patent claims 1 and 3 in view of Browning, Khan, UniProt/Wise, and GenSeq.
Instant claim 6 depends from claim 1 and recites that the target analyte is an antibody or antibody fragment. Patent claim 1 teaches the same substrate/capture-element/target-analyte framework. Browning teaches detecting antibody target analytes using immobilized Mycoplasma/M. bovis immunogenic proteins or antibody-binding fragments, wherein antibodies specific for the immobilized protein, if present in the sample, bind to the immobilized protein and are detected as bound antibody. Accordingly, it would have been obvious to modify the substrate of patent claim 1 to detect antibody or antibody-fragment target analytes in the M. bovis serological context taught by Browning. Instant claim 6 is therefore not patentably distinct from patent claim 1 in view of Browning.
Instant claim 7 depends from claim 1 and recites that the substrate is a solid or porous substrate. Patent claim 4 teaches that the substrate of claim 1 is a solid or porous substrate. Accordingly, instant claim 7 is not patentably distinct from patent claim 4.
Instant claim 8 depends from claim 7 and recites that the solid substrate is a paramagnetic bead, microtiter plate, microparticle, or magnetic bead. Patent claim 5 teaches that the solid substrate is a paramagnetic bead, microtiter plate, microparticle, or magnetic bead. To the extent use in the M. bovis context is required, Khan confirms the conventional use of 96-well microtiter plates coated with M. bovis whole cell proteins or purified recombinant proteins for M. bovis serological detection. Accordingly, instant claim 8 is not patentably distinct from patent claim 5, further in view of Khan to the extent necessary.
Instant claim 9 recites a kit for detecting a plurality of target analytes in a sample, comprising a substrate of claim 1 and optionally one or both of a background reducing reagent and a colorimetric detection system. Patent claim 7 teaches a kit for detecting a plurality of target analytes in a sample comprising a substrate of patent claim 1 and optionally one or both of a background reducing reagent and a colorimetric detection system. Patent claim 7 teaches the kit format recited in instant claim 9. The principal difference is the underlying M. bovis-specific substrate/capture antigen system, which would have been obvious in view of Browning for the reasons stated above. Accordingly, instant claim 9 is not patentably distinct from patent claim 7 in view of Browning.
Instant claim 10 depends from claim 9 and recites one or more items selected from a wash solution, one or more antibodies for detection of antigens, ligands or antibodies bound to the capture elements or for detection of the positive controls, software for analyzing captured target analytes, a protocol for measuring the presence of target analytes in samples, a sample diluent, blotting TMB, and a secondary antibody. Patent claim 8 teaches that the kit further comprises one or more items selected from a wash solution, one or more antibodies for detection of antigens, ligands or antibodies bound to the capture elements or for detection of the positive controls, software for analyzing captured target analytes, and a protocol for measuring the presence of target analytes in samples. Patent claim 9 further teaches antibodies for detection comprising antibody-binding protein conjugates, antibody-enzyme label conjugates, or any combination thereof. Patent claims 8 and 9 teach multiple kit components corresponding to the items recited in instant claim 10. To the extent instant claim 10 further recites sample diluent, blotting TMB, or a secondary antibody, these are routine immunoassay kit components, and the use of such components is supported by Khan’s M. bovis ELISA teachings. Accordingly, instant claim 10 is not patentably distinct from patent claims 8 and 9 in view of Browning and Khan.
Instant claim 16 depends from claim 9 and recites that the colorimetric detection system comprises HRP-labelled anti-bovine IgG Ab. Patent claim 9 teaches antibodies for detection comprising antibody-enzyme label conjugates, but does not expressly recite HRP-labelled anti-bovine IgG antibody. Khan teaches goat anti-bovine IgG-HRP as a secondary antibody used in an M. bovis serological assay and TMB/H2O2 as the colorimetric substrate. Accordingly, it would have been obvious to modify the kit of patent claim 9 to use Khan’s HRP-labelled anti-bovine IgG antibody as the antibody-enzyme label conjugate/colorimetric detection reagent in the M. bovis assay context. Instant claim 16 is therefore not patentably distinct from patent claim 9 in view of Khan.
Instant claim 17 depends from claim 9 and recites that the secondary antibody comprises at least one anti-bovine IgG antibody. Patent claim 9 teaches antibodies for detection comprising antibody-enzyme label conjugates but does not expressly recite an anti-bovine IgG secondary antibody. Khan teaches goat anti-bovine IgG-HRP and expressly identifies commercial goat anti-bovine IgG-HRP as a secondary antibody used in an M. bovis ELISA. Accordingly, it would have been obvious to modify the kit of patent claim 9 to use an anti-bovine IgG secondary antibody in the M. bovis assay context. Instant claim 17 is therefore not patentably distinct from patent claim 9 in view of Khan.
Instant claim 19 depends from claim 9 and recites that the kit detects a Mycoplasma bovis infection in bovine. Patent claims 7-11 teach kits for detecting SARS-CoV-2 antibodies/infection. Patent claims 7-11 differ from instant claim 19 in that the patented kits are directed to SARS-CoV-2 detection, whereas instant claim 19 is directed to M. bovis detection in bovine. Browning teaches that M. bovis is a bovine pathogen and teaches immobilized M. bovis/Mycoplasma immunogenic proteins for detecting antibodies indicative of current or prior exposure. Accordingly, it would have been obvious to adapt the patented kit format to detect M. bovis infection in bovine using the M. bovis-specific antigen system taught by Browning. Instant claim 19 is therefore not patentably distinct.
Instant claim 20 recites a method for processing a microarray comprising providing a substrate of claim 1, adding at least one sample to the substrate, and processing the substrate such that a detectable result is given by two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to monitor assay performance. Patent claim 18 teaches a method for processing a microarray comprising providing a substrate of claim 1, adding at least one sample to the substrate, and processing the substrate such that a detectable result is given by two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to monitor assay performance. Patent claim 18 therefore teaches the same microarray-processing/control-element framework recited in instant claim 20. The difference is that patent claim 18 uses the patented SARS-CoV-2 substrate, while instant claim 20 uses the M. bovis substrate of instant claim 1. Browning teaches M. bovis-specific immunogenic proteins suitable for immobilized capture in serological assays. Carter further teaches a lateral-flow microarray format in which a lateral-flow-compatible substrate is patterned and processed as a microarray, including positive hybridization control features that generate a colorimetric signal. Bell teaches fiducial/fiduciary alignment markers for microarray processing and automated spot finding. Accordingly, modifying the patented microarray-processing framework to use the M. bovis-specific substrate/capture elements taught by Browning, in view of Carter’s lateral-flow microarray format and Bell’s fiducial/alignment markers, would have rendered instant claim 20 not patentably distinct.
Instant claim 24 recites a method for detecting an analyte in a sample comprising a substrate of claim 1, adding at least one sample to the substrate, and processing the substrate such that a detectable result is provided. Patent claim 20 teaches a method for detecting an analyte in a sample comprising providing a substrate of claim 1, adding at least one sample to the substrate, and processing the substrate such that a detectable result is provided. Patent claim 20 therefore teaches the same detecting/analyte-processing method framework recited in instant claim 24. The difference is the M. bovis-specific substrate/analyte context, which would have been obvious in view of Browning for the reasons stated above. Accordingly, instant claim 24 is not patentably distinct.
Instant claim 26 depends from claim 24 and recites that the detectable result includes two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to detect an analyte in the sample. Patent claim 21 teaches that the detectable result includes two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to detect an analyte in the sample. Patent claim 21 therefore teaches the same detectable-result/control-element limitation recited in instant claim 26. The difference is the M. bovis-specific substrate/analyte context. Browning teaches the M. bovis-specific antigen/analyte context, and Johnson teaches fiducial/fiduciary markers on a lateral-flow substrate for improving image-area determination, test-region localization, and quantitation. Accordingly, instant claim 26 is not patentably distinct from patent claim 21 in view of Browning and Johnson.
Instant claim 34 recites a method of detecting a Mycoplasma bovis infection in bovine comprising adding at least one sample to the substrate of claim 1 and processing the substrate such that a detectable result is given by two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to monitor assay performance, thereby detecting a Mycoplasma bovis infection. Patent claim 20 teaches a method for detecting an analyte in a sample comprising providing a substrate of claim 1, adding at least one sample to the substrate, and processing the substrate such that a detectable result is provided. Patent claim 21 teaches that the detectable result includes two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to detect an analyte in the sample. Patent claims 20 and 21 differ from instant claim 34 in that the patented method is directed to SARS-CoV-2 detection/analytes, whereas instant claim 34 is directed to M. bovis infection detection in bovine. Browning teaches M. bovis immunogenic proteins for serological detection of M. bovis exposure/infection, and Johnson teaches fiducial/fiduciary markers on a lateral-flow substrate. Accordingly, modifying the patented detection method framework to use the M. bovis-specific substrate/capture elements taught by Browning, with Johnson’s fiducial/fiduciary marker on the lateral-flow substrate, would have been obvious, rendering instant claim 34 not patentably distinct.
Accordingly, claims 1-10, 16, 17, 19, 20, 24, 26, and 34 are not patentably distinct from claims 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 18, 20, and 21 of U.S. Patent No. 12,235,269 B2 in view of Browning et al., Khan et al., Carter et al., Bell et al., Johnson et al., UniProt Accession Nos. A0A454API1, A0A454APB4, A0A454APM8, A0A454AP38, and A0A454AQ03, as evidenced by Wise et al. and GenSeq alignment evidence.
Claims 1-10, 16, 17, 19, 20, 24, 26, and 34 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, and 17 of U.S. Patent No. 11,703,507 B2 in view of Browning et al., Carter et al., Bell et al., Johnson et al., UniProt Accession Nos. A0A454API1, A0A454APB4, A0A454APM8, A0A454AP38, and A0A454AQ03, as evidenced by Wise et al. and GenSeq alignment evidence.
Patent claim 9 teaches a substrate comprising at least two capture elements specific for SARS-CoV-2 on the substrate, wherein each capture element corresponds to and is able to bind a target analyte. Patent claim 9 further teaches optional control spots comprising at least one fiduciary marker, at least one negative control to monitor background signal, at least one negative control to monitor assay specificity, at least one positive colorimetric control, at least one positive control to monitor assay performance, and any combination thereof. This corresponds to the substrate/capture-element/control-element framework recited in instant claim 1. Patent claim 9 does not expressly teach that the capture elements are specific for Mycoplasma bovis (M. bovis). Browning teaches M. bovis-specific immunogenic proteins useful as immobilized antigens for serological detection of Mycoplasma/M. bovis exposure. Accordingly, it would have been obvious to modify the substrate of patent claim 9 to use Browning’s M. bovis-specific immunogenic proteins as capture elements in place of SARS-CoV-2-specific capture elements. Such a modification would have been an obvious substitution of one known disease-specific capture antigen system for another in the same substrate-based immunological assay format. Instant claim 1 is therefore not patentably distinct.
Instant claim 2 depends from claim 1 and further recites that the capture elements bind target analytes, wherein the target analytes are indicative of an M. bovis infection. Patent claim 9 teaches the substrate/capture-element framework inherited from instant claim 1. Patent claim 1 teaches detecting anti-SARS-CoV-2 antibodies from a sample of a subject having SARS-CoV-2 infection or exposure. Patent claim 5 further teaches that binding of target analytes to the anti-SARS-CoV-2 antibody capture element is indicative of the production of antibodies by the subject in response to SARS-CoV-2 infection. Patent claims 1, 5, and 9 do not expressly teach that the bound target analytes are indicative of M. bovis infection. Browning teaches that antibody binding to immobilized Mycoplasma/M. bovis immunogenic proteins is indicative of current or prior exposure to Mycoplasma. Accordingly, substituting the M. bovis-specific antigen system taught by Browning into the patented substrate framework would have rendered instant claim 2 not patentably distinct.
Instant claim 3 depends from claim 1 and recites that the capture element is selected from a protein, lipoprotein, glycoprotein, protein fragment, peptide, polypeptide, polypeptide fragment, antigen, antigen fragment, antigenic determinant, epitope, hapten, immunogen, immunogen fragment, or any combination thereof. Patent claim 9 teaches that each capture element is a SARS-CoV-2 protein selected from membrane protein, nucleocapsid protein, spike protein, envelope protein, an epitope thereof, and any combination thereof. Patent claim 9 therefore teaches protein and epitope capture elements corresponding to the type of capture elements recited in instant claim 3. To the extent instant claim 3 uses broader terminology, Browning teaches M. bovis immunogenic proteins and antibody-binding fragments suitable for immobilized serological capture. Accordingly, instant claim 3 is not patentably distinct from patent claim 9 in view of Browning.
Instant claim 4 depends from claim 1 and recites that the capture element is selected from a group including MilAab (SEQ ID NO: 10), MBOVGP45_310 (SEQ ID NO: 11), MBOVGP45_320 (SEQ ID NO: 12), MBOVGP45_0402 (SEQ ID NO: 13), MBOVGP45_0117 (SEQ ID NO: 14), MBOVG45_0353 (SEQ ID NO: 15), MBOVGP45_0416 (SEQ ID NO: 16), MBOVGP45_0565 (SEQ ID NO: 17), MBOVGP45_0710-EF (SEQ ID NO: 18), an epitope thereof, and a combination thereof. Patent claim 9 teaches the same substrate/capture-element framework, including protein capture elements and epitopes thereof, but does not expressly recite the specific M. bovis sequences of instant claim 4. Browning teaches M. bovis PG45 MilA immunogenic proteins and antibody-binding fragments useful as immobilized diagnostic antigens for serological detection. Browning further identifies the amino acid sequence of MilA from M. bovis PG45 as SEQ ID NO: 15. The GenSeq alignment evidence shows that instant MilAab (SEQ ID NO: 10) corresponds to Browning’s M. bovis PG45 MilA protein, with 97.7% query match, 98.4% best local similarity, 598 matches, 5 conservative substitutions, 5 mismatches, 0 indels, and 0 gaps. Accordingly, it would have been obvious to modify the substrate of patent claim 9 to use Browning’s known M. bovis PG45 MilA diagnostic protein corresponding to MilAab (SEQ ID NO: 10), or an epitope thereof, as the capture element. Instant claim 4 is therefore not patentably distinct from patent claim 9 in view of Browning and the GenSeq alignment evidence.
Instant claim 5 depends from claim 1 and recites that the capture element comprises MilAab (SEQ ID NO: 10), MBOVGP45_310 (SEQ ID NO: 11), MBOVGP45_320 (SEQ ID NO: 12), MBOVG45_0402 (SEQ ID NO: 13), and MBOVGP45_0117 (SEQ ID NO: 14). Patent claim 9 teaches the same substrate/capture-element framework but does not expressly recite the five specific M. bovis PG45 sequences of instant claim 5. Browning teaches M. bovis immunogenic proteins, including MilA-related proteins, for immobilized serological detection. Khan further teaches that multiple M. bovis antigenic proteins were known to generate antibody responses and that improved serodiagnostic assays based on sensitive and specific antigens were desirable. UniProt Accession Nos. A0A454API1, A0A454APB4, A0A454APM8, A0A454AP38, and A0A454AQ03, as evidenced by Wise et al. and the GenSeq alignment evidence, teach known M. bovis PG45 proteins corresponding to the claimed SEQ ID NOs with minimal sequence differences. Accordingly, it would have been obvious to modify the substrate of patent claim 9 to use capture elements comprising the claimed sequences corresponding to known M. bovis PG45 proteins, where the claimed sequences differ only minimally from the known PG45 proteins. Instant claim 5 is therefore not patentably distinct from patent claim 9 in view of Browning, Khan, UniProt/Wise, and GenSeq.
Instant claim 6 depends from claim 1 and recites that the target analyte is an antibody or antibody fragment. Patent claim 1 teaches detecting anti-SARS-CoV-2 antibodies, and patent claim 10 recites that the antibody target analyte is an anti-SARS-CoV-2 antibody fragment or binding domain thereof. Patent claims 1 and 10 therefore teach antibody/antibody-fragment target analytes corresponding to instant claim 6. To the extent the M. bovis context is required, Browning teaches detecting antibody target analytes using immobilized Mycoplasma/M. bovis immunogenic proteins or antibody-binding fragments. Accordingly, instant claim 6 is not patentably distinct from patent claims 1 and 10, further in view of Browning to the extent necessary.
Instant claim 7 depends from claim 1 and recites that the substrate is a solid or porous substrate. Patent claim 9 teaches that the substrate is a porous membrane, a microtiter plate, or a microparticle. Patent claim 9 therefore teaches porous substrate and solid substrate options corresponding to instant claim 7. Accordingly, instant claim 7 is not patentably distinct.
Instant claim 8 depends from claim 7 and recites that the solid substrate is a paramagnetic bead, microtiter plate, microparticle, or magnetic bead. Patent claim 9 teaches that the substrate may be a microtiter plate or microparticle. Patent claim 9 therefore teaches the microtiter plate and microparticle options recited in instant claim 8. To the extent additional solid substrate options are recited, Khan teaches conventional solid immunoassay substrates, including microtiter plates, for M. bovis serological detection. Selecting a known solid immunoassay substrate would have been an obvious design choice. Accordingly, instant claim 8 is not patentably distinct.
Instant claim 9 recites a kit for detecting a plurality of target analytes in a sample, comprising a substrate of claim 1 and optionally one or both of a background reducing reagent and a colorimetric detection system. Patent claim 13 teaches a kit comprising a substrate of patent claim 9 and optionally one or both of a background reducing reagent and a colorimetric detection system. Patent claim 13 teaches the kit format recited in instant claim 9. The principal difference is the underlying M. bovis-specific substrate/capture antigen system, which would have been obvious in view of Browning for the reasons stated above. Accordingly, instant claim 9 is not patentably distinct from patent claim 13 in view of Browning.
Instant claim 10 depends from claim 9 and further recites one or more items selected from a wash solution, one or more antibodies for detection of antigens, ligands or antibodies bound to the capture elements or for detection of the positive controls, software for analyzing captured target analytes, a protocol for measuring the presence of target analytes in samples, a sample diluent, blotting TMB, and a secondary antibody. Patent claim 14 teaches a kit comprising a wash solution, one or more antibodies for detection of antigens, ligands or antibodies bound to the capture elements or for detection of the positive controls, and instructions for measuring the presence of target analytes in a sample. Patent claim 15 further teaches antibodies for detection comprising antibody-binding protein conjugates, antibody-enzyme label conjugates, or any combination thereof. Patent claims 14 and 15 teach multiple kit components corresponding to the items recited in instant claim 10. To the extent instant claim 10 further recites software, sample diluent, blotting TMB, or secondary antibody, these are routine immunoassay kit components, and the use of such components is supported by the applied secondary references and would have been an obvious implementation of the patented kit format. Accordingly, instant claim 10 is not patentably distinct from patent claims 14 and 15 in view of Browning and Khan.
Instant claim 16 depends from claim 9 and recites that the colorimetric detection system comprises HRP-labelled anti-bovine IgG Ab. Patent claim 15 teaches antibodies for detection comprising antibody-enzyme label conjugates but does not expressly recite HRP-labelled anti-bovine IgG antibody. Khan teaches goat anti-bovine IgG-HRP as a secondary antibody used in an M. bovis serological assay and TMB/H2O2 as the colorimetric substrate. Accordingly, it would have been obvious to modify the kit of patent claim 15 to use Khan’s HRP-labelled anti-bovine IgG antibody as the antibody-enzyme label conjugate/colorimetric detection reagent in the M. bovis assay context. Instant claim 16 is therefore not patentably distinct from patent claim 15 in view of Khan.
Instant claim 17 depends from claim 9 and recites that the secondary antibody comprises at least one anti-bovine IgG antibody. Patent claim 15 teaches antibodies for detection comprising antibody-enzyme label conjugates but does not expressly recite an anti-bovine IgG secondary antibody. Khan teaches goat anti-bovine IgG-HRP and expressly identifies commercial goat anti-bovine IgG-HRP as a secondary antibody used in an M. bovis ELISA. Accordingly, it would have been obvious to modify the kit of patent claim 15 to use an anti-bovine IgG secondary antibody in the M. bovis assay context. Instant claim 17 is therefore not patentably distinct from patent claim 15 in view of Khan.
Instant claim 19 depends from claim 9 and recites that the kit detects a Mycoplasma bovis infection in bovine. Patent claims 13-17 teach kits for detecting SARS-CoV-2 antibodies/infection. Patent claims 13-17 differ from instant claim 19 in that the patented kits are directed to SARS-CoV-2 detection, whereas instant claim 19 is directed to M. bovis detection in bovine. Browning teaches that M. bovis is a bovine pathogen and teaches immobilized M. bovis/Mycoplasma immunogenic proteins for detecting antibodies indicative of current or prior exposure. Accordingly, it would have been obvious to adapt the patented kit format to detect M. bovis infection in bovine. Instant claim 19 is therefore not patentably distinct.
Instant claim 20 recites a method for processing a microarray comprising providing a substrate of claim 1, adding at least one sample to the substrate, and processing the substrate such that a detectable result is given by two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to monitor assay performance. Patent claim 7 teaches a method for processing a microarray comprising providing a substrate, adding at least one sample to the substrate, and processing the substrate such that a detectable result is given by two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to monitor assay performance. Patent claim 7 therefore teaches the same method framework recited in instant claim 20. The difference is that patent claim 7 uses a SARS-CoV-2 substrate, while instant claim 20 uses the M. bovis substrate of instant claim 1. Browning teaches M. bovis-specific immunogenic proteins suitable for immobilized capture in serological assays. Carter further teaches a lateral-flow microarray format in which a lateral-flow-compatible substrate is patterned and processed as a microarray, including positive hybridization control features that generate a colorimetric signal. Bell teaches fiducial/fiduciary alignment markers for microarray processing and automated spot finding. Accordingly, substituting the M. bovis-specific capture elements taught by Browning into the patented microarray-processing framework, in view of Carter’s lateral-flow microarray format and Bell’s fiducial/alignment markers, would have rendered instant claim 20 not patentably distinct.
Instant claim 24 recites a method for detecting an analyte in a sample comprising a substrate of claim 1, adding at least one sample to the substrate, and processing the substrate such that a detectable result is provided. Patent claim 11 teaches a method for detecting an analyte in a sample comprising providing a substrate of claim 9, adding at least one sample to the substrate, and processing the substrate such that a detectable result is provided. Patent claim 11 therefore teaches the same detecting/analyte-processing method framework recited in instant claim 24. The difference is the M. bovis-specific substrate/analyte context, which would have been obvious in view of Browning for the reasons stated above. Accordingly, instant claim 24 is not patentably distinct.
Instant claim 26 depends from claim 24 and recites that the detectable result includes two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to detect an analyte in the sample. Patent claim 12 teaches that the detectable result includes two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to detect an analyte in the sample. Patent claim 12 therefore teaches the same detectable-result/control-element limitation recited in instant claim 26. The difference is the M. bovis-specific substrate/analyte context. Browning teaches the M. bovis-specific antigen/analyte context, and Johnson teaches fiducial/fiduciary markers on a lateral-flow substrate for improving image-area determination, test-region localization, and quantitation. Accordingly, instant claim 26 is not patentably distinct from patent claim 12 in view of Browning and Johnson.
Instant claim 34 recites a method of detecting a Mycoplasma bovis infection in bovine comprising adding at least one sample to the substrate of claim 1 and processing the substrate such that a detectable result is given by two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to monitor assay performance, thereby detecting a Mycoplasma bovis infection. Patent claim 11 teaches a method for detecting an analyte in a sample comprising providing a substrate of claim 9, adding at least one sample to the substrate, and processing the substrate such that a detectable result is provided. Patent claim 12 teaches that the detectable result includes two or more of at least one fiduciary marker, at least one positive colorimetric control, and at least one positive control to detect an analyte in the sample. Patent claims 11 and 12 differ from instant claim 34 in that the patented method is directed to SARS-CoV-2 detection/analytes, whereas instant claim 34 is directed to M. bovis infection detection in bovine. Browning teaches M. bovis immunogenic proteins for serological detection of M. bovis exposure/infection, and Johnson teaches fiducial/fiduciary markers on a lateral-flow substrate. Accordingly, modifying the patented detection method framework to use the M. bovis-specific substrate/capture elements taught by Browning, with Johnson’s fiducial/fiduciary marker on the lateral-flow substrate, would have been obvious, rendering instant claim 34 not patentably distinct.
Accordingly, claims 1-10, 16, 17, 19, 20, 24, 26, and 34 are not patentably distinct from claims 1, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, and 17 of U.S. Patent No. 11,703,507 B2 in view of Browning et al., Khan et al., Carter et al., Bell et al., Johnson et al., UniProt Accession Nos. A0A454API1, A0A454APB4, A0A454APM8, A0A454AP38, and A0A454AQ03, as evidenced by Wise et al. and GenSeq alignment evidence.
Conclusion
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/E.O./Examiner, Art Unit 1677
/BAO-THUY L NGUYEN/Supervisory Patent Examiner, Art Unit 1677 June 12, 2026
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