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 .
Response to Arguments
Applicant arguments filed 11/06/2025 have been fully considered and are addressed below:
The amendments to the drawings overcome the objection. The objection has been withdrawn.
The amendments to the abstract overcome the objection. The objection has been withdrawn.
The amendments to the claims 7 and 17 overcome the objections. The previous objections have been withdrawn. However, a new objection to claim 18 has been made upon further consideration.
The amendments to the claims overcome the 112b of claims 16 and 17 (see remarks page 15). The rejections of claims 16 and 17 have been withdrawn. However, the amendments to claims 3 and 7 do not overcome the 112b rejections. The rejections of claims 3 and 7 have been maintained.
Applicant’s arguments (see remarks pages 16-21) with respect to the 102 and 103 rejections of claim(s) 1-18, 24, 26, and 32 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Claim Objections
Claim 18 objected to because of the following informalities:
Regarding claim 18, the claim recites “a substrate” in line 3, however, the examiner believes this should read “the solid substrate” which was already recited in claim 1. Appropriate correction is required.
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.
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 3 and 7 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 3, the claim recites the limitation "the thickness" in line 4. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination, the claim is interpreted as “a thickness”. Appropriate correction is required.
Regarding claim 7, the claim recites “the metallic plasmonic material is selected from:
a noble metal; and/or
a base metal, or a salt thereof; or
the metallic plasmonic material is selected from a group consisting of silver, gold, copper and/or aluminium.”
The recitation both “and/or” and “or” and the indentation makes the claim unclear as to what subgroups the material is being selected from. Also, the first subgroup is recited as “material is selected from” and the second subgroup is recited as “selected from a group consisting of”. This combination of inconsistencies make the claim unclear. The wording used in the applicant’s remarks (page 14 “the material is selected from (i) a noble metal; and/or a base metal, or a salt thereof; or (ii) a group comprising or consisting of silver, gold, copper and/or aluminium”) indicates that there are two subgroups from which the material is selected. However, the “and/or” between noble metal and base metal still makes this unclear. Based on the “and/or” it is unclear if the material can be a combination of two materials? It appears that the “salt thereof” only applies to the base metal. Or can it be a salt from a noble metal? For the purposes of examination, the claim is interpreted based on the specification (page 12) as the metallic plasmonic material is selected from:
a group consisting a noble metal, a base metal or a salt thereof, and any combination thereof; or
a group consisting of silver, gold, copper, and aluminium.
Appropriate correction is required. The above interpretation is not a suggestion of how to amend the claim and the applicant should further consider the claim in order to ensure the amended limitation is clear and reflects the invention as disclosed in the specification.
Claim Rejections - 35 USC § 102
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 1-13, 15, 16, 18, 24, and 26 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 20190317011 A1 by Hu (cited in the IDS dated 03/06/2024).
Regarding claim 1, Hu teaches (at least Fig. 2, 4A-B, 11B-E) chip comprising a solid substrate (base substrate 110; [0080]) and a plurality of nanostructures (spheroidal MIM antenna structures 105 which includes nanospheres 115; [0081]) wherein:
the plurality of nanostructures are arranged on the surface of the solid substrate and are not in contact with one another (Fig. 2 shows spheres arranges on substrate 110 that are not in contact with each other; [0081]"spacing between adjacent nanospheres may range between about 10 nm and about 2000 nm…") ;
the nanostructures comprise a dielectric core ([0081] nanospheres may be manufactures from a dielectric or insulative material) partially coated in a metallic plasmonic material, wherein the partial coating of the metallic plasmonic material forms a cap structure on the dielectric core ([0082] "each MIM antenna structure 105 in the sensor array 200 may include a thin (e.g., 0.1 nm to several hundreds of nanometers) metallic cap 120 that has been formed or deposited on or at the crown of a first (e.g., top) surface of each nanosphere 115");
the cap structure does not make contact with the underlying substrate and does not form a continuous layer across the dielectric core (see Fig. 2; [0082] " the coupling distance between the upper surface of the metallic backplane (125) and the bottoms of the metallic caps (120) is about one (1) nm to about 2000 nm…"; and
a portion of the dielectric core remains exposed (see Fig. 2; bottom half of spheres 115 remain exposed; [0082]).
Regarding claim 2, Hu teaches the chip according to claim 1, and further teaches wherein the cap structure is positioned distal to the portion of the dielectric core that contacts the surface of the solid substrate (see Fig. 2; [0082] "metallic cap 120 that has been formed or deposited on or at the crown of a first (e.g., top) surface of each nanosphere 115").
Regarding claim 3, Hu teaches the chip according to claim 1, and further teaches wherein the portion of the dielectric core that remains exposed is a portion of the dielectric core that is not coated with the metallic plasmonic material and is not in contact with the solid substrate (see Fig. 2, bottom on spheres 115 remain exposed not touching substrate 110 or backplane 125; [0082])) optionally wherein the thickness of a film of the metallic plasmonic material between the dielectric cores is zero.
Regarding claim 4, Hu teaches the chip according to claim 1, and further teaches wherein at least a portion of the plurality of nanostructures is arranged upon said substrate to form a first array ([0024] MIM nanostructures arranged in an array of nanospheres), optionally a first regular array of nanostructures, optionally where all nanostructures are arrayed in the same regular array, optionally, wherein the first array is a close packed array, optionally a hexagonal close packed array (hcp) or face centred cuboid (fcc).
Regarding claim 5, Hu teaches the chip according to claim 1, and further teaches wherein each nanostructure of the plurality of nanostructures comprises the same:
a) dielectric core ([0081]); and/or
b) metallic material ([0082]; [0091] nanospheres formed or disposed in a sensor array on a single base substrate share the same or substantially the same size, shape, periodicity, and so forth; each nanosphere comprises the dielectric core and cap).
Regarding claim 6, Hu teaches the chip according to claim 1, and further teaches wherein the dielectric core is formed of a polymer ([0081] molecularly imprinted polymer (MIP) material, from a dielectric or insulative material (e.g., glass, SiO2, polymer, and so forth)), optionally wherein the polymer is polystyrene, silica or any combination thereof, optionally wherein the dielectric core is polystyrene.
Regarding claim 7, Hu teaches the chip according to claim 1, and further teaches wherein the metallic plasmonic material is selected from:
a noble metal; and/or
a base metal, or a salt thereof; or
the metallic plasmonic material is selected from the group consisting of silver, gold, copper, and aluminum ([0082] portions of each antenna nanostructure 105 in a sensor array may be made from metallic materials, e.g., platinum, gold, silver, aluminum, copper, tungsten, and combinations thereof.).
Regarding claim 8, Hu teaches the chip according to claim 1, and further teaches wherein:
at least 30%, 35%, 40%, 45%, 50%, 55%, 60%, 65%, 70%, 75%, 80%, 85%, 90%, 95%, 96%, 97%, 98%, 99%, 100% of the surface of each of the dielectric cores is coated with the metallic material; and/or
wherein less than 100%, 99%, 98%, 97%, 96%, 95%, 90%, 85%, 80%, 75%, 70%, 65%, 60%, 55%, 50%, 45%, 40%, 35%, 30% of the surface of each of the dielectric cores is coated with the metallic material; and/or
wherein each of the dielectric cores is not 100% coated in the metallic plasmonic material (see Fig. 2 approximately less than 50% of the nanospheres 115 are covered by the metallic cap 120; [0082]).
Regarding claim 9, Hu teaches the chip according to claim 1, and further teaches wherein the average diameter (a) of each metallic material-coated nanostructure of the plurality of nanostructures is:
from 1 nm to 1000 nm , optionally from 50 nm to 900 nm; 100 nm to 800 nm; 200 nm to 700 nm; 300 nm to 600 nm, 400 to 500 nm; and/or
at least 1 nm, 50 nm, 100 nm, 200 nm, 300 nm, 400 nm, 500 nm, 600 nm, 700 nm, 800 nm, 900 nm and 1000 nm; and/or
less than 1000 nm, 900 nm, 800 nm, 700 nm, 600 nm, 500 nm, 400 m, 300 nm, 200 nm, 100 nm, 50 nm, 25 nm, or 5 nm, or 1 nm ([0081]-[0082] "Typical diameters of the nanospheres may range between about 1 nm and about 2000 nm, or between about 5 nm and about 1000 nm, or between about 10 nm and about 500 nm. " and "thin (e.g., 0.1 nm to several hundreds of nanometers) metallic cap 120 "; the nanosphere and cap for the metallic material-coated nanostructure of the plurality of nanostructures).
Regarding claim 10, Hu teaches the chip according to claim 1, and further teaches wherein the average diameter of the dielectric core is:
from 1 nm to 1000 nm, optionally from 50 nm to 900 nm; 100 nm to 800 nm; 200 nm to 700 nm; 300 nm to 600 nm, 400 to 500 nm; and/or
at least 1 nm, 50 nm, 100 nm, 200 nm, 300 nm, 400 nm, 500 nm, 600 nm, 700 nm, 800 nm, 900 nm and 1000 nm; and/or
less than 1000 nm, 900 nm, 800 nm, 700 nm, 600 nm, 500 nm, 400 m, 300 nm, 200 nm, 100 nm, 50 nm, 25 nm, or 5 nm, or 1 nm ([0081] Typical diameters of the nanospheres may range between about 1 nm and about 2000 nm, or between about 5 nm and about 1000 nm, or between about 10 nm and about 500 nm. ).
Regarding claim 11, Hu teaches the chip according to claim 1, and further teaches wherein the metal coating has an average maximum average thickness of:
at least 1 nm, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 20, 30, 40, 50, 60, 70, 80, 90, 100, 150, 200, 250, 300, 350, 400, 450, 500, 550, 600, 650, 700, 750, 800, 850, 900, 950 or at least 1000 nm; and/or
less than 1000 nm, 950, 900, 850, 800, 750, 700, 650, 600, 550, 500, 450, 400, 350, 300, 250, 200, 150, 100, 90, 80, 70, 60, 50, 40, 30, 20, 15, 14, 13, 12, 11, 10, 9, 8, 7, 6, 5, 4, 3, 2 or 1 nm; and/or
from 1 nm to 1000 nm, 2 to 950, 3 to 900, 4 to 850, 5 to 800, 6 to 750, 7 to 700, 8 to 650, 9 to 600, 10 to 550, 11 to 500, 12 to 450, 13 to 400, 14 to 350, 15 to 300, 20 to 250, 30 to 200, 40 to 150, 50 to 100, 60 to 90, 70 to 80 nm ([0082] thin (e.g., 0.1 nm to several hundreds of nanometers) metallic cap 120).
Regarding claim 12, Hu teaches the chip according to claim 1, and further teaches wherein the nanostructures have a shape selected from the group consisting of spherical , substantially spherical, star-shaped, ovoid, pyramidal, cube, and cuboid or any combination thereof, optionally wherein the nanostructures are spherical or substantially spherical or star-shaped ([0081] nanospheres 115).
Regarding claim 13, Hu teaches the chip according to claim 1, and further teaches wherein exposure of the chip to light induces the formation of one or more surface plasmons within a portion of the chip ([0056]" incident light, striking near or between metallic nanoparticle surfaces and having a specific wavelength, excites surface plasmons, causing them collectively to oscillate"; [0059] "in the presence of an analyte target molecule and when struck by incident light of a particular wavelength, an observable change in color within the visible spectrum"), optionally wherein the surface plasmon forms on the surface of the metallic material that coats the nanostructure,
optionally wherein the light is selected from the group consisting of ultraviolet (UV) light, visible light, near-infra-red (NIR) light, and NIR-II light, or any combination thereof, optionally wherein UV light has a wavelength of between 100-400 nm; visible light has a wavelength of between 380-700; NIR I has a wavelength of between 650-900 nm; and NIR II has a wavelength of between 1000-1400 nm.
Regarding claim 15, Hu teaches the chip according to claim 1, and further teaches wherein a capture agent capable of binding specifically to a target analyte is bound to the chip ([0071] "MIP protective layer can include a chemical moiety (e.g., a “receptor” or “binding site”) that can form a complex (e.g., host-guest chemistry) with an analyte target molecule of interest via a non-covalent bond"; molecularly imprinted polymer (MIP) 135), optionally bound to the substrate, the metallic plasmonic coating the substrate, and/or to the nanostructures,
optionally wherein the capture agent is:
a protein, optionally wherein the protein is selected from the group consisting of an antibody or antigen binding fragment thereof, actin, albumin, casein, collagen, dystrophin, fibrinogen, fibronectin, flagellin, gelatin, keratin, α-lactalbumin, β-lactalbumin, lactoferrin, myosin, titin, and tubulin, or any combination thereof; or
a nucleic acid, optionally wherein the nucleic acid is DNA or RNA, optionally wherein
the DNA is selected from the group consisting of cccDNA, ccfDNA, cDNA, cfDNA, cffDNA, circular DNA, cpDNA, ctDNA, dsDNA, eccDNA, ecDNA, eDNA, exogenous DNA, gDNA, i-DNA, linker DNA, microDNA, mtDNA, msDNA, ncDNA, rDNA, and ssDNA, or any combination thereof; and/or
the RNA is selected from the group consisting of 7SK RNA, asRNA, cfRNA, circRNA, crRNA, diRNA, dsRNA, eRNA, exRNA, gRNA, lncRNA, miRNA, natsiRNA, ncRNA, piRNA, pre-mRNA, rasiRNA, RNase MRP, RNase P, rRNA, scaRNA, sgRNA, shRNA, siRNA, SL RNA, SmY RNA, snRNA, snoRNA, ssRNA, tasiRNA, telomerase RNA, tmRNA, tRNA, tracrRNA, and Y RNA, or any combination thereof.
Regarding claim 16, Hu teaches the chip according to claim 1, and further teaches wherein the chip is in the form of a slide, a dish, a lateral flow strip, a multi-well plate, or a bead coated with the nanostructures according to any of the proceeding claims (Fig. 12; [0125] sensor arrays described herein may be operatively disposed upon or integrated within a surface of a substrate 700 shown in Fig. 12, sensor array disposed upon or integrated within that surface are exposed to a liquid 705 in which an analyte target molecule of interest may or may not be present, for example straw 710, a swizzle stick or stirrer 715, a fluid receptacle 720; a fluid receptacle is a dish).
Regarding claim 18, Hu teaches the chip according to claim 1, and further teaches wherein the chip has been produced using a method that comprises:
a) arranging nanoparticles of a dielectric material on the surface of a substrate (Fig. 11B; [0130]);
b) etching the dielectric nanoparticles to form a dielectric core (Fig. 11C; [0121]), optionally wherein the etching is performed using oxygen plasma (RIE) ([0121] oxygen plasma etching so that the diameter of the nanospheres becomes smaller due to the etching process); and
c) depositing a metallic material on the dielectric core to form metallic-capped nanostructures (Fig. 11D; [0122]), optionally wherein said depositing is by sputtering ([0122]).
Regarding claim 24, Hu teaches the chip according to claim 1, and further teaches a method of detecting a target analyte wherein the method comprises detecting the analyte using the chip according to claim 1 ([0086]; [0090] The binding of analyte target molecules results in an observable color change, e.g., from blue to red, within the visible light spectrum; [0126]).
Regarding claim 26, Hu teaches the chip according to claim 1, and further teaches wherein the method comprises the detection of a plurality of target analytes ([0085] the cavities are shaped to receive discrete analyte target molecules, [0090] Each formed cavity in a MIP should have an affinity for a corresponding analyte target molecule of interest; a plurality of target analytes is listed) , optionally wherein the method comprises the detection of at least two, at least three, at least four, at least five, or at least six target analytes.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Hu in view of Aluminum film over nanosphere surface for Deep Ultraviolet plasmonic nanosensors by Venkatesh et al. (hereinafter Venkatesh; cited in the IDS and previous office action dated 06/10/2025).
Regarding claim 14, Hu teaches the chip according to claim 1, but Hu does not explicitly teach to wherein exposure of the chip to light with a wavelength from at least two different spectral regions induces the formation of a surface plasmon within a portion of the chip, optionally wherein the spectral regions are selected from the group consisting of ultraviolet (UV) light, visible light, near-infra-red (NIR) light, and NIR-II light, or any combination thereof, optionally wherein UV spectral region has a wavelength of between 100-400 nm; the visible spectral region has a wavelength of between 380-700 nm; NIR I spectral region has a wavelength of between 650-900 nm; and NIR II spectral region has a wavelength of between 1000-1400 nm,
optionally wherein the excitation light has a wavelength of between 10 nm and 1400 nm, optionally wherein the excitation light has a wavelength selected from the group consisting of between 10 nm and 400 nm, between 400 nm and 700 nm, between 700 nm and 1000 nm, between 1000 nm and 1400 nm, and between 350 nm and 1400 nm.
However, Hu does teach that incident light, striking near or between metallic nanoparticle surfaces and having a specific wavelength, excites surface plasmons, causing them collectively to oscillate ([0056]) and that the MIM antenna structures 15, 105 may be configured to produce, in the presence of an analyte target molecule and when struck by incident light of a particular wavelength, an observable change in color within the visible spectrum ([0059]). Under the principles of inherency, if a prior art device, in its normal and usual operation, would necessarily perform the method claimed, then the method claimed will be considered to be anticipated by the prior art device. When the prior art device is the same as a device described in the specification for carrying out the claimed method, it can be assumed the device will inherently perform the claimed process. In re King, 801 F.2d 1324, 231 USPQ 136 (Fed. Cir. 1986). The chip taught by Hu appears to have the same properties as the chip in the applicant's specification and would inherently form surface plasmons when exposed to light from at least two different spectral regions.
Further, Venkatesh does address this limitation. Venkatesh and Hu are considered to be analogous to the present invention as they are in the same field of nanostructures.
Venkatesh teaches wherein exposure of the chip to light with a wavelength from at least two different spectral regions (see Fig. 5; page 6 col 1 ¶ 2 “Two distinct regions in the transmission spectra of AlFON were observed. “featureless plateau in the visible region (700–400 nm)”, “deep-UV (DUV) region with transmission peak like profile”) induces the formation of a surface plasmon within a portion of the chip (see Fig. 5; page 6 col 2 ¶ 2 “localized surface plasmon resonance”),
optionally wherein the spectral regions are selected from the group consisting of ultraviolet (UV) light, visible light, near-infra-red (NIR) light, and NIR-IIlight, or any combination thereof, optionally wherein UV spectral region has a wavelength of between 100-400 nm (page 6 col 1 ¶ 2 “286 nm in the DUV region”); the visible spectral region has a wavelength of between 380-700 nm (page 6 col 1 ¶ 2 visible region (700–400 nm)); NIR I spectral region has a wavelength of between 650-900 nm; and NIR II spectral region has a wavelength of between 1000-1400 nm,
optionally wherein the excitation light has a wavelength of between 10 nm and 1400 nm, optionally wherein the excitation light has a wavelength selected from the group consisting of between 10 nm and 400 nm, between 400 nm and 700 nm, between 700 nm and 1000 nm, between 1000 nm and 1400 nm, and between 350 nm and 1400 nm (page 6 col 2 ¶ 2; see Fig. 5 which corresponds to the excitation of localized surface plasmon resonance).
It would have been well known to someone of ordinary skill in the art before the effective filing date of the claimed invention to expose the chip to light from two different spectral regions to induce the formation of surface plasmons. Therefore, it would have been obvious to modify Hu to include wherein exposure of the chip to light with a wavelength from at least two different spectral regions induces the formation of a surface plasmon within a portion of the chip as suggested by Venkatesh in order to increase the detection range.
Claims 17 and 32 are rejected under 35 U.S.C. 103 as being unpatentable over Hu in view of Gold Nanostar Substrates for Metal-Enhanced Fluorescence through the First and Second Near-Infrared Windows by Theodorou et al. (hereinafter Theodorou; cited in the IDS and previous office action dated 06/10/2025).
Regarding claim 17, Hu teaches the chip according to claim 1, but Hu does not explicitly teach wherein the chip is capable of enhancing the fluorescence of one or more fluorophores, including inorganic/Organic fluorophores, emitting in UV, visible and NIR optical windows , optionally wherein the one or more fluorophore is selected from:
fluorescent dyes, Single-Walled Carbon Nanotubes (SWCNTs), Quantum Dots, Rare-Earth-Doped Nanoparticles (RENPs) including upconversion nanoparticles and downconversion nanoparticles, optionally wherein the chip is capable of enhancing the fluorescence from each fluorophore simultaneously or sequentially.
However, under the principles of inherency, if a prior art device, in its normal and usual operation, would necessarily perform the method claimed, then the method claimed will be considered to be anticipated by the prior art device. When the prior art device is the same as a device described in the specification for carrying out the claimed method, it can be assumed the device will inherently perform the claimed process. In re King, 801 F.2d 1324, 231 USPQ 136 (Fed. Cir. 1986). The chip taught by Hu appears to have the same properties as the chip in the applicant's specification and would inherently be capable of enhancing the fluorescence of one or more fluorophores.
Further, Theodorou can be relied upon to teach this limitation. Theodorou and Hu are considered to be analogous to the present invention as they are in the same field of nanostructures.
Theodorou teaches metal enhanced fluorescence (MEF) which is an optical process in which the near-field interaction of fluorophores with metallic nanoparticles could, under specific conditions, produce large fluorescence enhancements (page 2 ¶3), thus enhancing the fluorescence of one or more fluorophores.
It would have been well known to someone of ordinary skill in the art before the effective filing date of the claimed invention to use metallic nanoparticles with fluorophores to enhance fluorescence. Therefore, it would have been obvious to modify Hu to include enhancing the fluorescence of one or more fluorophores as suggested by Theodorou in order to improve performance of fluorescence-based technologies (page 2 ¶3).
Regarding claim 32, Hu teaches the chip according to claim 1, but Hu does not explicitly teach a kit comprising the chip of claim 1, and one or more of:
One or more corresponding fluorophores; and/or
One or more fluorophore labelled oligonucleotides; and/or
One or more fluorophore labelled antibodies or antigen binding fragments thereof,
optionally wherein the kit comprises 2, 3 or 4 or more fluorophores or fluorophore labelled oligonucleotides or antibody or antigen binding fragments thereof where the max excitation of the two or more fluorophores are in different spectral regions.
However, Theodorou does address this limitation. Theodorou and Hu are considered to be analogous to the present invention as they are in the same field of nanostructures.
Theodorou teaches metal enhanced fluorescence (MEF) which is an optical process in which the near-field interaction of fluorophores with metallic nanoparticles could, under specific conditions, produce large fluorescence enhancements (page 2 ¶3).
It would have been well known to someone of ordinary skill in the art before the effective filing date of the claimed invention to make a kit comprising the chip with metallic nanoparticles and fluorophores to enhance fluorescence. Therefore, it would have been obvious to modify Venkatesh to include a kit comprising the chip of claim 1 and one or more corresponding fluorophores as suggested by Theodorou in order to improve performance of fluorescence-based technologies (page 2 ¶3).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAITLYN E KIDWELL whose telephone number is (703)756-1719. The examiner can normally be reached Monday - Friday 8 a.m. - 5 p.m. ET.
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/KAITLYN E KIDWELL/Examiner, Art Unit 2877
/TARIFUR R CHOWDHURY/Supervisory Patent Examiner, Art Unit 2877