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 .
Applicants’ amendment to the claims filed on 11/17/2023 is acknowledged. This listing of claims replaces all prior listings of claims in the application.
Claims 37-56 are pending and examined on the merits.
Claims 1-36 are cancelled.
Priority
Acknowledgement is made of this national stage entry of PCT/CA2022/050782 filed on 5/18/2022, which claims domestic priority to U.S. non-provisional application 18/562,048, filed on 5/18/2022, which claim priority to U.S provisional application 63/190,949, filed on 5/20/2021.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/17/2023 and 5/15/2025 is acknowledged. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Drawings
The Drawings filed on 11/17/2023 are acknowledged and accepted by the examiner.
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 39-41, 43-44, 50-54 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.
The term “about” in claims 39-41, 43-44, 50-54 is a relative term which renders the claim indefinite. The term “about” is not defined by the claim and/or the specification. As such, Examiner is unable to ascertain the limitations that encompass the term ‘about.’ Appropriate correction is suggested.
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.
Claims 37, 42, 44, 46-49, 56 are rejected under 35 U.S.C. 102a1 as being anticipated by Jollez et al (US 20190094211A1, Publication Date: Mar 28, 2019, cited on IDS dated 5/15/2025) {herein Jollez} as evidenced by Debey et al (2018, scientificreports, Examiner cited) {herein Debey} and Sigma (2025, Milipore Sigma, Examiner cited) {herein Sigma). See MPEP 2131.01 regarding multiple reference 102 rejections.
Claims 37, 42, 44, 46-49, 56 are drawn to a chromogenic absorbent material for hemoglobin and/or glucose detection in an animal excretion, the chromogenic absorbent material comprising: a benzidine-type compound; at least one of: an organic hydroperoxide, for catalyzing the oxidation of the benzidine-type compound in the presence of hemoglobin; and a catalytic system comprising: a first enzyme which is an oxidoreductase, for in situ generation of hydrogen peroxide in the presence of glucose; and a second enzyme which is a peroxidase, a pseudoperoxidase or a combination thereof, for catalyzing the oxidation of the benzidine- type compound upon in situ generation of the hydrogen peroxide; a salt of alkylbenzene sulfonate; and a polysaccharide matrix comprising a chemically or mechanically processed non- functionalized cellulose and pregelatinized starch (PGS).
With respect to claim 37, 42, 44, 46-48, 56, Jollez teaches a chromogenic absorbent material for the detection of glucose and blood (hemoglobin) in animal excretions (para 0160 and 0161). Said chromogenic absorbent material is comprised of a benzidine-type compound (para 0202) such as 3,3',5,5'-Tramethylbenzidine (para 0016), hydroperoxide (para 0208), such as cumene hydroxyperoxode (para 0079), a first catalytic compound (such as glucose oxidase) to generate hydrogen peroxide in situ (para 0247). The catalytic system can also include oxidoreductase or pseudoperoxidase (para 0227). Absent evidence otherwise, it is the Examiner’s position that the oxidoreductase is the same as the recited ‘first enzyme’ within claim 37 of the instant application. Said system can also include horseradish peroxidase (para 0227). Absent evidence otherwise, it is the Examiner’s position that the horseradish peroxidase and pseudoperoxidase are the same as the recited ‘second enzyme’ within claim 37 of the instant application. The peroxidatively active substances are enzyme-like in that they catalyze the redox reaction between peroxides and benzidine-type indicator substances for the production of hydrogen peroxide, thereby producing a detectable response such as a color change (para 0009). The chromogenic absorbent material may include a porous polysaccharide matrix having a low density (para 0246). The polysaccharide matrix is comprised of microcrystalline cellulose (MCC), pregelatinized starch (PGS), carboxymethylcellulose (CMC) (para 0273) and cellulose (para 0273). Said cellulose can be comprised of fibrous material (para 0008). Absent evidence otherwise, it is the Examiner’s position that said cellulase is non-functionalized cellulose as Examiner is interpreting the cellulose taught by Jollez to be naturally occurring, which is known by those of ordinary skill in the art to constitute non-functionalized cellulose.
Additionally, with respect to claim 44, the evidentiary reference of Dubey is cited to demonstrate that the average particle size of non-functionalized cellulose by laser diffraction is within the range of 0.04 - 2000µm (page 8, para 6). As such, absent evidence otherwise, it is the Examiner’s position that ‘the chemically or mechanically processed non-functionalized cellulose’ taught by Jollez and recited in the instant application claims 44 is a mechanically processed non- functionalized cellulose and said cellulose would inherently have an average particle size by laser diffraction between about 50 µm and about 80 µm. Furthermore, the evidentiary reference of Sigma is cited to demonstrate that cellulose has a bulk density of 0.5 g/ml. As such, absent evidence otherwise, it is the Examiner’s position that the recited non-functional cellulose would inherently have a bulk density between about 0.20 g/mL and about 0.35 g/mL as recited in claim 44 of the instant application since Applicant has not defined the parameters of the term ‘about.’ Additionally, Applicant has not recited any modifications to the cellulose that would substantially modify said properties.
With respect to claim 49, Jollez teaches the chromogenic absorbent material further comprises a buffering agent, a stabilizer, a metal scavenger agent or a color enhancer or a combination thereof (para 0083).
For the reasons stated herein, the teachings of Jollez anticipate claims 37, 42, 44, 46-49, 56.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 37-38, 42-56 are rejected under 35 U.S.C. 103 as being unpatentable over Jollez et al (US 20190094211A1, Publication Date: Mar 28, 2019, cited on IDS dated 5/15/2025) {herein Jollez} in view of McHugh et al (US 3703772, Date of Patent: Nov. 28, 1972, Examiner cited) {herein McHugh} as evidenced by ThermoScientific (2025, ThermoFischer Scientific, Examiner cited) {herein Thermo}, Debey et al (2018, scientificreports, Examiner cited) {herein Debey} and Sigma (2025, Millipore Sigma, Examiner cited) {herein Sigma).
Claims 37-38, 42-56 are drawn to a chromogenic absorbent material for hemoglobin and/or glucose detection in an animal excretion, the chromogenic absorbent material comprising: a benzidine-type compound; at least one of: an organic hydroperoxide, for catalyzing the oxidation of the benzidine-type compound in the presence of hemoglobin; and a catalytic system comprising: a first enzyme which is an oxidoreductase, for in situ generation of hydrogen peroxide in the presence of glucose; and a second enzyme which is a peroxidase, a pseudoperoxidase or a combination thereof, for catalyzing the oxidation of the benzidine- type compound upon in situ generation of the hydrogen peroxide; a salt of alkylbenzene sulfonate; and a polysaccharide matrix comprising a chemically or mechanically processed non- functionalized cellulose and pregelatinized starch (PGS).
With respect to claim 37, 42-43, 46-48, 55-56, Jollez teaches a chromogenic absorbent material for the detection of glucose and blood in animal excretions (para 0160 and 0161). Said chromogenic absorbent material is comprised of a benzidine-type compound (para 0202) such as 3,3',5,5'-Tramethylbenzidine (para 0016), hydroperoxide (para 0208), such as cumene hydroxyperoxode (para 0079), a first catalytic compound (such as glucose oxidase) to generate hydrogen peroxide in situ (para 0247). The catalytic system can also include oxidoreductase or pseudoperoxidase (para 0227). Absent evidence otherwise, it is the Examiner’s position that the oxidoreductase is the same as the recited ‘first enzyme’ within claim 37 of the instant application. Said system can also includes horseradish peroxidase (para 0227). Absent evidence otherwise, it is the Examiner’s position that the horseradish peroxidase or pseudoperoxidase are the same as the recited ‘second enzyme’ within claim 37 of the instant application. The peroxidatively active substances are enzyme-like in that they catalyze the redox reaction between peroxides and benzidine-type indicator substances for the production of hydrogen peroxide, thereby producing a detectable response such as a color change (para 0009). The chromogenic absorbent material may include a porous polysaccharide matrix having a low density (para 0246). The polysaccharide matrix is comprised of microcrystalline cellulose (MCC), pregelatinized starch (PGS), carboxymethylcellulose (CMC) (para 0273) and cellulose (para 0273). Said cellulose can be comprised of fibrous material (para 0008), of which Examiner is interpreting as being fibrous cellulose. Absent evidence otherwise, it is the Examiner’s position that said cellulose is non-functionalized cellulose as Examiner is interpreting the cellulose taught by Jollez to be naturally occurring. The evidentiary reference of ThermoFisher is cited to demonstrate that average size of microcrystalline cellulose is 90µm (page 1). As such, it is the Examiner’s position that the microcrystalline cellulose taught by Jollez and recited within the instant application has an average size of 90 µm as Applicant has not recited any modification to the microcrystalline cellulose. Although the reference of Jollez does not explicitly teach the limitations of claim 43 (fibrous cellulose has an average fiber length of up to about 220 pm), MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the size of the fibrous cellulose depending on the particular application. It would be routine for one to arrive at the length of fibrous cellulose for the application they intend on using the cellulose. Therefore, the above invention would have been prima facie obvious.
With respect to claim 44, the evidentiary reference of Dubey is cited to demonstrate that the average particle size of non-functionalized cellulose by laser diffraction is within the range of 0.04 - 2000µm (page 8, para 6). As such, absent evidence otherwise, it is the Examiner’s position that ‘the chemically or mechanically processed non-functionalized cellulose’ taught by Jollez and recited in the instant application claims 44 is a mechanically processed non- functionalized cellulose and said cellulose would inherently have an average particle size by laser diffraction between about 50 µm and about 80 µm. Furthermore, the evidentiary reference of Sigma is cited to demonstrate that cellulose has a bulk density of 0.5 g/ml. As such, absent evidence otherwise, it is the Examiner’s position that the recited non-functional cellulose would inherently have a bulk density between about 0.20 g/mL and about 0.35 g/mL as recited in claim 44 since Applicant has not defined the parameters of the term ‘about.’ Additionally, Applicant has not recited any modifications to the cellulose that would substantially modify said properties.
With respect to claim 49, Jollez teaches the chromogenic absorbent material further comprises a buffering agent, a stabilizer, a metal scavenger agent or a color enhancer or a combination thereof (para 0083).
However, Jollez does not teach the product of claims 37-38 of a salt of alkylbenzene sulfonate (claims 37-38). Jollez does not teach the product of claim 45, wherein the salt of dodecylbenzene sulfonate is sodium dodecylbenzene sulfonate, ammonium dodecylbenzene sulfonate, triethylamine dodecylbenzene sulfonate, potassium dodecylbenzene sulfonate or a combination thereof (claim 45). Jollez does not teach the product of claim 50 of a chromogenic absorbent material having a density of about 0.20 g/cm3 to about 0.39 g/cm3 (claim 50). Jollez does not teach the product of claim 51 of a chromogenic absorbent material having an effective porosity of about 0.5 mL/g to about 2.0 mL/g (claim 51). Jollez does not teach the product of claim 52 of a chromogenic absorbent material which has pores having an equivalent diameter greater than about 20 µm (claim 52). Jollez does not teach the product of claim 53 of a chromogenic absorbent material having a free swelling capacity greater than about 900% (claim 53). Jollez does not teach the product of claim 54 of a chromogenic absorbent material having a pore density greater than about 20% (claim 54). Jollez does not teach the product of claim 55 of a chromogenic absorbent material of the salt of alkylbenzene sulfonate is sodium dodecylbenzene sulfonate, ammonium dodecylbenzene sulfonate, triethylamine dodecylbenzene sulfonate, potassium dodecylbenzene sulfonate, or a combination thereof (claim 55).
With respect to claims 37-38, 45, 55, McHugh teaches the combination of sodium higher alkyl benzene sulfonates with very finely divided sorbent material to speed drying and prevent hot spots (abstract). It is known by those of ordinary skill in the art that sodium higher alkyl benzene sulfonates are the same as a salt of alkylbenzene sulfonate. As such, absent evidence otherwise, it is the Examiner’s position that the sodium higher alkyl benzene sulfonates taught by McHugh is the same as the salt of alkylbenzene sulfonate recited in the instant application and the sodium dodecylbenzene sulfonate recited in the instant application claims 45, 55.
With respect to claims 50-54, since Jollez, in view of McHugh teaches the structure of the chromogenic absorbent material of the instant application, absent evidence otherwise, it is the Examiner’s position that it would be obvious that the chromogenic absorbent material taught by Jollez, in view of McHugh would have a density of about 0.20 g/cm3 to about 0.39 g/cm3 (claim 50), have an effective porosity of about 0.5 mL/g to about 2.0 mL/g (claim 51), have pores having an equivalent diameter greater than about 20 µm (claim 52), have a free swelling capacity greater than about 900% (claim 53) and have a pore density greater than about 20% as recited in the instant application claims 50-54.
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to apply the teachings of Jollez et al of a chromogenic absorbent material for the detection of glucose and blood in animal excretions (para 0160 and 0161) or McHugh et al because McHugh teaches a combination of sodium higher alkyl benzene sulfonates with very finely divided sorbent material speeds drying and prevent hot spots (abstract).
One of ordinary skill in the art would be motivated to either use the teachings of Jollez et al. by itself or combine the teachings of McHugh because McHugh provides the motivation for Jollez to utilize a salt of alkylbenzene sulfonate such as sodium dodecylbenzene sulfonate because when sodium dodecylbenzene sulfonate is mixed with sorbent material, it distributes aqueous solutions over a greatly increased area, which speeds drying (abstract). One of ordinary skill in the art knowing the benefit of chromogenic absorbent material based on the teachings of Jollez and McHugh would have a reasonable expectation of success to combine sodium higher alkyl benzene sulfonates with chromogenic absorbent material as doing so would help to improve the storage stability of the chromogenic absorbent material, thereby permitting it to be utilized for the detection of blood and glucose in animal excrement over an extended period of time. Furthermore, it would allow for easier cleanup of said animal excrement, as its absorption would be facilitation by the addition of sodium dodecylbenzene sulfonate.
One of skill in the art would have a reasonable expectation of success to make and use the claimed chromogenic absorbent material for the detection of blood and glucose in animal excrement because Jollez provides the teaching of a chromogenic absorbent material for the detection of glucose and blood in animal excretions (para 0160 and 0161). Whereas, McHugh teaches the combination of sodium higher alkyl benzene sulfonates with very finely divided sorbent material speeds drying and prevents hot spots (abstract). Therefore there would be a reasonable expectation of success to arrive at the above invention. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
Claims 39-41 are rejected under 35 U.S.C. 103 as being unpatentable over Jollez et al (US 20190094211A1, Publication Date: Mar 28, 2019, cited on IDS dated 5/15/2025) {herein Jollez} in view of McHugh et al (US 3703772, Date of Patent: Nov. 28, 1972, Examiner cited) {herein McHugh} as applied to claims 37-38, 42-56 in further view of Bülichen et al (2012, Cement and Concrete Research, Examiner cited) {herein Bülichen} as evidenced by ThermoScientific (2025, ThermoFischer Scientific, Examiner cited) {herein Thermo}.
Claim 39 is drawn to the chromogenic absorbent material of claim 37, wherein the polysaccharide matrix comprises: from about 10 wt% to about 32.5 wt% chemically or mechanically processed non- functionalized cellulose; from about 25 wt% to about 70 wt% PGS; from 0 wt% to about 20 wt% guar gum; from 0 wt% to about 25 wt% methyl hydroxyethyl cellulose (MHEC); from 0 wt% to about 15 wt% hydroxyethyl cellulose (HEC); and from 0 wt% to about 10 wt% carboxymethyl cellulose (CMC).
Claims 40 is drawn to the chromogenic absorbent material of claim 39, wherein the polysaccharide matrix comprises: from about 10 wt% to about 32.5 wt% chemically or mechanically processed non- functionalized cellulose; from about 25 wt% to about 70 wt% PGS; from about 10 wt% to about 20 wt% MHEC; and from about 2.5 wt% to about 7.5 wt% CMC.
Claim 41 is drawn to the chromogenic absorbent material of claim 39, wherein the polysaccharide matrix comprises: from about 25 wt% to about 32.5 wt% chemically or mechanically processed non- functionalized cellulose; from about 40 wt% to about 60 wt% PGS; from about 10 wt% to about 20 wt% MHEC; and from about 2.5 wt% to about 7.5 wt% CMC.
With respect to claims 39-41, Jollez teaches chromogenic absorbent material for the detection of blood in glucose in animal excrement may include a porous polysaccharide matrix having a low density (para 0246). The polysaccharide matrix is comprised of microcrystalline cellulose (MCC), pregelatinized starch (PGS), carboxymethylcellulose (CMC) (para 0273) and cellulose (para 0273). Absent evidence otherwise, it is the Examiner’s position that said cellulose is non-functionalized cellulose as Examiner is interpreting the cellulose taught by Jollez to be naturally occurring. The particles of the chromogenic absorbent materials may also be made from guar gum (para 0286).
However, Jollez in view of McHugh do not teach the product of claim 39 of a chromogenic absorption material comprised of from 0 wt% to about 25 wt% methyl hydroxyethyl cellulose (MHEC); from 0 wt% to about 15 wt% hydroxyethyl cellulose (HEC) (claim 39). Jollez in view of McHugh do not teach the product of claim 40 of a chromogenic absorption material comprised of from about 10 wt% to about 20 wt% MHEC (claim 40). Jollez in view of McHugh do not teach the product of claim 41 of a chromogenic absorbent material from about 10 wt% to about 20 wt% MHEC (claim 41).
With respect to claims 39-41, Bülichen teaches hydroxyethyl cellulose (HEC) and methyl hydroxyethyl cellulose (MHEC) are effective materials for water retention (abstract and page 954, column 1, para 5). Although the references of Jollez in view of McHugh and in further view of Bülichen do not explicitly teach the limitations of claim 39-41 (wherein the polysaccharide matrix comprises: from about 10 wt% to about 32.5 wt% chemically or mechanically processed non- functionalized cellulose; from about 25 wt% to about 70 wt% PGS; from 0 wt% to about 20 wt% guar gum; from 0 wt% to about 25 wt% methyl hydroxyethyl cellulose (MHEC); from 0 wt% to about 15 wt% hydroxyethyl cellulose (HEC); and from 0 wt% to about 10 wt% carboxymethyl cellulose (CMC) claim 39, wherein the polysaccharide matrix comprises: from about 10 wt% to about 32.5 wt% chemically or mechanically processed non- functionalized cellulose; from about 25 wt% to about 70 wt% PGS; from about 10 wt% to about 20 wt% MHEC; and from about 2.5 wt% to about 7.5 wt% CMC claim 40, wherein the polysaccharide matrix comprises: from about 25 wt% to about 32.5 wt% chemically or mechanically processed non- functionalized cellulose; from about 40 wt% to about 60 wt% PGS; from about 10 wt% to about 20 wt% MHEC; and from about 2.5 wt% to about 7.5 wt% CMC claim 41), MPEP 2144.05 states"[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 IIA)." One of ordinary skill would desire to optimize the concentration of PGS, guar gum, MHEC, HEC, CMC depending on the particular application. It would be routine for one to arrive at the concentration of said components of the polysaccharide matrix for the application they intend on using the chromogenic absorbent material. Therefore, the above invention would have been prima facie obvious.
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to apply the teachings of Jollez et al of a chromogenic absorbent material for the detection of glucose and blood in animal excretions (para 0160 and 0161) or combine the teachings of McHugh et al and Bülichen because Bülichen teaches hydroxyethyl cellulose (HEC) and methyl hydroxyethyl cellulose (MHEC) are effective materials for water retention (abstract and page 954, column 1, para 5). Whereas McHugh teaches a combination of sodium higher alkyl benzene sulfonates with very finely divided sorbent materials to speed drying and prevent hot spots (abstract).
One of ordinary skill in the art would be motivated to either use the teachings of Jollez et al. by itself or combine the teachings of McHugh and Bülichen because Bülichen provides the motivation for Jollez, in view of McHugh to utilize MHEC and HEC within a chromogenic absorbent material as Bülichen teaches both MHEC and HEC achieve water retention by intramolecular sorption of water and concomitant swelling even at higher dosages (abstract). Furthermore, said molecules agglomerate into large hydrocolloidal microgel particles (d>1 μm) which effectively plug the pores in the mortar matrix (abstract). One of ordinary skill in the art knowing the benefit of chromogenic absorbent material based on the teachings of Jollez, McHugh and Bülichen would have a reasonable expectation of success to combine MHEC and HEC with a chromogenic absorbent material as it would result in a strong increase in the hydrodynamic diameter of solved MHEC molecules, and a noticeable reduction of surface tension (abstract and page 954, column 1, para 4). As such, utilizing MHEC and HEC within a chromogenic absorbent material for the detection of glucose and blood in animal excretion would result in a reduced probability of animal waste containing toxins being invertedly removed from the absorbent material after it has been utilized by the animal.
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 37-56 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 16/202,225 in view of McHugh et al (US Patent 3,703,772, Date of Patent Nov. 28, 1972, Examiner cited) {herein McHugh}. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 37-56 recite ‘a chromogenic absorbent material for hemoglobin and/or glucose detection in an animal excretion, the chromogenic absorbent material comprising: a benzidine-type compound; at least one of: an organic hydroperoxide, for catalyzing the oxidation of the benzidine-type compound in the presence of hemoglobin; and a catalytic system comprising: a first enzyme which is an oxidoreductase, for in situ generation of hydrogen peroxide in the presence of glucose; and a second enzyme which is a peroxidase, a pseudoperoxidase or a combination thereof, for catalyzing the oxidation of the benzidine- type compound upon in situ generation of the hydrogen peroxide; a salt of alkylbenzene sulfonate; and a polysaccharide matrix comprising a chemically or mechanically processed non- functionalized cellulose and pregelatinized starch (PGS).’ The dependent claims (claims 38-54) further define the chromogenic absorbent material.
However, the claims of ‘225 do not recite ‘a salt of alkylbenzene sulfonate’ (claim 37), wherein the salt of dodecylbenzene sulfonate is sodium dodecylbenzene sulfonate, ammonium dodecylbenzene sulfonate, triethylamine dodecylbenzene sulfonate, potassium dodecylbenzene sulfonate or a combination thereof (claim 45).
McHugh teaches the combination of sodium higher alkyl benzene sulfonates with very finely divided sorbent materials to speed drying and prevent hot spots (abstract). It is known by those of ordinary skill in the art that sodium higher alkyl benzene sulfonates are the same as a salt of alkylbenzene sulfonate. As such, absent evidence otherwise, it is the Examiner’s position that the sodium higher alkyl benzene sulfonates taught by McHugh is the same as the salt of alkylbenzene sulfonate recited in the instant application and the sodium dodecylbenzene sulfonate recited in the instant application claims 45, 55 of the instant application claims.
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to apply the teachings of Jollez et al of a chromogenic absorbent material for the detection of glucose and blood in animal excretions (para 0160 and 0161) or McHugh et al because McHugh teaches a combination of sodium higher alkyl benzene sulfonates with very finely divided sorbent material speeds drying and prevents hot spots (abstract).
One of ordinary skill in the art would be motivated to either use the teachings of Jollez et al. by itself or combine the teachings of McHugh because McHugh provides the motivation for Jollez to utilize a salt of alkylbenzene sulfonate such as sodium dodecylbenzene sulfonate because when sodium dodecylbenzene sulfonate is mixed with sorbent material, it distributes aqueous solutions over a greatly increased area, which speeds drying (abstract). One of ordinary skill in the art knowing the benefit of chromogenic absorbent material based on the teachings of Jollez and McHugh would have a reasonable expectation of success to combine sodium higher alkyl benzene sulfonates with chromogenic absorbent material as doing so would help to improve the storage stability of the chromogenic absorbent material, thereby permitting it to be utilized for the detection of blood and glucose in animal excrement over an extended period of time. Furthermore, it would allow for easier cleanup of said animal excrement, as its absorption would be facilitation by the addition of sodium dodecylbenzene sulfonate.
One of skill in the art would have a reasonable expectation of success to make and use the claimed chromogenic absorbent material because Jollez provides the teaching of a chromogenic absorbent material for the detection of glucose and blood in animal excretions (para 0160 and 0161). Whereas, McHugh teaches the combination of sodium higher alkyl benzene sulfonates with very finely divided sorbent material speeds drying and prevents hot spots (abstract). Therefore there would be a reasonable expectation of success to arrive at the above invention. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Status of the claims
Claims 37-56 are pending.
Claims 1-36 are cancelled.
Claims 37-56 are rejected.
No claims are in condition for allowance.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICA NICOLE JONES-FOSTER whose telephone number is (571)270-0360. The examiner can normally be reached mf 7:30a - 4:30p.
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/ERICA NICOLE JONES-FOSTER/Examiner, Art Unit 1656
/PAUL J HOLLAND/Primary Examiner, Art Unit 1656