Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Claims
Claims 1-10 are pending and under examination.
Priority
This application is a continuation of 16/875,424 filed on 5/15/2020, which claims priority from US provisional application 62/848,835 filed on 5/16/2019.
Information Disclosure Statement
The Information Disclosure Statement filed on 8/1/2024 has been considered by the examiner.
Claim Objections
Claim 10 is objected to for misspelling of “Nitrilotris(methylenephosphoric acid)” which is properly spelled as “Nitrilotris(methylenephosphonic acid)”.
Claim 10 is objected to as there appear to be two recitations of “O,O'-bis(2-aminoethyl)ethyleneglycol-N,N,N,N'-tetraacetic acid”, one in line 2 of the claim and one in line 11. Only one recitation of the compound is needed.
Claim 10 is objected to for the use of “and” in the group where it should be “or” in this group of alternatives. The group is not using the Markush language “selected from the group consisting of….and…” where “and” would be used.
Appropriate corrections are required.
Claim Rejections - 35 USC § 112(b)
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 5-7 and 9-10 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.
Claim 5 is indefinite for co-monomers of four monomers according to formula V: ABCD as co-monomers is suggestive of monomers in a mixture and formula V:ABCD is suggestive of a polymer with monomers polymerized/bound together. Thus, it is unclear if applicant means to claim a mixture of monomers or if applicant means to claim a polymer with the formula ABCD. Applicant may change the recitation of co-monomers to polymer if they mean to claim a polymer of four monomers. For the purpose of compact prosecution, the prior art will read on the claim if either in polymer or monomer mixture form.
Claims 6 and 7 are indefinite for being dependent on an indefinite claim.
Claims 6 and 7 recite the limitation "the total polymer" in the claims where “a polymer” is not recited in claim 5 or claim 1, on which they depend. Due to the lack of clarity in claim 5, it cannot be said whether there is a polymer in claim 5 or not. There is insufficient antecedent basis for this limitation in the claim.
Claim 9 recites the limitation "the fluorescent indicator molecules" in the claims where “fluorescent indicator molecules” are not recited in claim 1, on which claim 9 depends. There is insufficient antecedent basis for this limitation in the claim. Note that fluorescent indicator molecules does not get antecedent basis from “analyte indicator” as it represents a potentially different item or other subgenus group.
Claim 10 is indefinite for ending with “salts, esters, solvates, hydrates, and combinations thereof” as it is unclear if the salts involve the compounds named in the group, if the esters involve the compounds named in the group, if the solvates involve the compounds named in the group and/or if the hydrates involve the compounds named in the group. This may allow salts, esters, solvates and hydrates to be any compound with metal chelating moieties that happens to be a salt, ester, solvate or hydrate (broad genus recitations) rather than a salt, ester, solvate or hydrate of a species of compound in the group (more specific recitations). Applicant may amend this limitation at the end of the group to read “salts thereof, esters thereof, solvates thereof, hydrates thereof, or combinations thereof”. For the purpose of compact prosecution, if the prior art teaches a salt, ester, solvate or hydrate compound that acts as a metal chelator, it will read on the limitation.
Claim 10 is indefinite for the recitation of “hydroxyethylidene-I; diphosphonic acid” as it is unclear if these are two different compounds or if this should be the compound “1-Hydroxyethylidene-1,1-diphosphonic acid”. There does not seem to be a compound called hydroxyethylidene-I, and so, it seems incomplete. For the purpose of compact prosecution, if the prior art teaches either of these items (if found this way) or 1-Hydroxyethylidene-1,1-diphosphonic acid, then it will read on the limitation.
Claim 10 is indefinite for “Nitrilotris(methylenephosphoric acid), trisodium salt (NTPO)” as the compound is supposed to be the trisodium salt, but NTPO allows for the non-salt form. It is unclear if applicant wants the non-salt NTPO, the trisodium salt form or both. Applicant may delete the parenthetical in this recitation.
Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 6 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 6 allows for an option with no A since it can be 0%, but claim 5, on which it depends, needs all of ABCD. Thus, claim 6 allows for a new formula of BCD, which is not ABCD (formula V). Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
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 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Chatterjee US20200352492 (earliest effective filing date of May 8, 2019 with different inventors).
The applied reference has a common inventor and assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Chatterjee teaches an analyte sensor at least partially being covered by analyte indicator (abstract). Chatterjee teaches “A method of fabricating a sensor for measurement of an analyte in a medium within a living animal, the method comprising: inserting the sensor into a composition for an amount of time sufficient to effect soaking of the composition into the analyte indicator, wherein the sensor includes a sensor housing and an analyte indicator that covers at least a portion of the sensor housing, and the composition comprises one or more compounds having dithio-, thio- or mercapto-containing moieties; and removing the sensor from the composition” (claim 15 of Chatterjee). Chatterjee teaches “wherein the one or more compounds having dithio-, thio- or mercapto-containing moieties interact or react with a degradative species without compromising signal integrity or performance of the sensor device, wherein the degradative species is hydrogen peroxide, a reactive oxygen species, a reactive nitrogen species, an enzyme, a free radical, or a metal ion” (claim 25 of Chatterjee and paragraph 41). Thus, one ability of a portion of these compounds is to interact with species like metal ions, which is chelation. Claim 9 of Chatterjee provides the moieties to sequester the species. Paragraph 59 (figure 4) teaches indicator hydrogel as the form (also paragraph 51). Paragraph 41 provides that “In some embodiments, the one or more additives may be provided in the analyte indicator 106 (e.g., polymer graft).” and in some embodiments, additive may be copolymerized with indicator molecule (paragraph 41). Chatterjee teaches “In some non-limiting embodiments, one or more compounds having dithio-, thio- or mercapto-containing moieties may be provided as co-monomers of four monomers according to Formula V: ABCD [Formula V], wherein A is an indicator monomer, B is a methacrylate monomer, C is a polyethylene glycol monomer, and D is a dithio-, thio- or mercapto-containing moiety monomer, wherein A is 0 to 10% by weight, B is 1 to 99% by weight, C is 1 to 99% by weight, and D is 1 to 99% by weight of the total polymer” (paragraphs 52-53). Chatterjee teaches “the one or more compounds having dithio-, thio- or mercapto-containing moieties may be polymerized (reacted) as a co-monomer with an indicator monomer and one or more acrylate monomers” (paragraph 52). Chatterjee teaches compounds that are salts with dithio-, thio-, or mercapto-containing moieties (claim 11 of Chatterjee, also claim 12 with salt, ester, hydrate, solvate). Chatterjee teaches photodetector in the sensor and fluorescence based (paragraph 27 and figure 1).
Chatterjee does not teach a particular embodiment where the compound with dithio-, thio-, or mercapto-containing moieties acts a chelator (chelate metal ions), but the teachings of Chatterjee allow this option of sequestering/interacting with metal ions among others as it reduces degradation of the indicator.
One of ordinary skill in the art before the time of filing would have been able to select the compounds that can interact with metal ions (chelate) to reduce indicator degradation when producing inventions of Chatterjee, which are to methods of fabricating a sensor by applying the indicator to the outer surface of the housing of the sensor. There was a reasonable expectation of success in modifying the methods taught by Chatterjee and obtaining versions that have indicator and chelator on the surface of the sensor.
Claims 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Chatterjee US 20200268291 (earliest effective filing date of February 22, 2019 with different inventors).
The applied reference has a common inventor and assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
‘291 teaches “A method of fabricating a sensor for measurement of an analyte in a medium within a living animal, the method comprising: applying an analyte indicator to a sensor housing of the sensor such that the applied analyte indicator covers at least a portion of the sensor housing, wherein the analyte indicator comprises one or more compounds containing boronate or boronic acid moieties that reduce degradation of the analyte indicator” (claim 15 of ‘291). Claim 17 of ‘291 provides that “The method of claim 15, wherein the one or more compounds containing boronate or boronic acid moieties are co-monomers with the analyte indicator in a hydrogel”. ‘291 teaches “wherein the one or more compounds containing boronate or boronic acid moieties interact or react with a degradative species without compromising signal integrity or performance of the sensor device, wherein the degradative species is hydrogen peroxide, a reactive oxygen species, a reactive nitrogen species, enzymes, free radical or metal ions” (claim 20 of ‘291). ‘291 teaches “ wherein the analyte indicator covering at least a portion of the sensor housing comprises a polymer comprising co-monomers of four monomers according to Formula III: ABCD [Formula III], wherein A is an analyte indicator monomer, B is a methacrylate monomer, C is a polyethylene glycol monomer, and D is a compound or monomer containing boronate or boronic acid moieties, wherein A is 0.01 to 10% by weight, B is 1 to 99% by weight, C is 1 to 99% by weight, and D is 0.01 to 99% by weight of the total polymer (claim 26 of ‘291). ‘291 also teaches sequestering the species (paragraph 40). Paragraph 26 and figure 1 teaches photodetectors for fluorescent light. ‘291 teaches “9-[N-[6-(4,4,5,5,-tetramethyl-1,3,2-dioxaborolano)-3-(trifluoromethyl)benzyl]-N-[3-(methacrylamido)propylamino]methyl]-10-[N-[6-(4,4,5,5,-tetramethyl-1,3,2-dioxaborolano)-3-(trifluoromethyl)benzyl]-N-[2-(carboxyethyl)amino]methyl]anthracene sodium salt as an indicator (paragraph 24). Thus, salts of compounds may be used as acceptable forms.
‘291 does not teach a particular embodiment where the compound with boronate groups that acts a chelator (chelate metal ions), but the teachings of ‘291 allow this option of sequestering/interacting with metal ions among others as it reduces degradation of the indicator.
One of ordinary skill in the art before the time of filing would have been able to select the compounds that can interact with metal ions (chelate) to reduce indicator degradation when producing inventions of ‘291, which are to methods of fabricating a sensor by applying the indicator to the outer surface of the housing of the sensor. There was a reasonable expectation of success in modifying the methods taught by ‘291 and obtaining versions that have indicator and chelator on the surface of the sensor.
Claims 1-4, and 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over Colvin US 20120238842 and Carter et al (Chemical Reviews, 2014, volume 114, pages 4564-4601).
Colvin teaches “An implantable device with in vivo functionality, where the functionality of the device is negatively affected by ROS typically associated with inflammation reaction as well as chronic foreign body response as a result of tissue injury, is at least partially surrounded by a protective material, structure, and/or a coating that prevents damage to the device from any inflammation reactions” (abstract). Colvin teaches “The protective material, structure, and/or coating thereby prevents ROS from degrading the in vivo functionality of the implantable device” (abstract). Colvin teaches “The sensor may also include fluorescent indicator monomers distributed throughout and co-polymerized with the porous sensor graft material that generate signal indicative of the level of fluorescence in the indicator graft. The sensor may also include a radiation source (e.g. an LED), and a photosensitive detector element” (paragraph 55). Colvin teaches “The sensor may also include fluorescent indicator monomers distributed throughout and co-polymerized with the porous sensor graft material that generate signal indicative of the level of fluorescence in the indicator graft. The sensor may also include a radiation source (e.g. an LED), and a photosensitive detector element” (paragraph 55). Colvin teaches “the porous sensor graft may be protected whether it is located in a specific region of a sensor body or completely covering a sensor body” (paragraph 97). Figure 4 shows the sensor and figure 1 shows some analyte indicator molecules. Colvin teaches structural encasings for the implantable devices (paragraph 83). These encasings would be housings. Colvin teaches the sensor body having an outer surface and a radiation source in said sensor body (paragraph 56). Colvin teaches the layer being in the form of a coating sputter deposited on at least part of the device (paragraph 73). Colvin teaches the co-polymerization fabrication of the indicator monomers with the porous sensor graft material (paragraph 96). Colvin teaches sensing of glucose levels (claim 3 of Colvin). Colvin teaches “More particularly, the invention relates to (but is not limited to) electro-optical-based sensing devices for detecting the presence or concentration of an analyte in a medium which are characterized by being totally self-contained and of an extraordinarily compact size which permits the device to be implanted in humans for in situ detection of various analytes” (paragraph 3). Colvin teaches detecting of an analyte and an implantable device (paragraphs 12-13). Thus, Colvin is in general to detection of analytes while also providing for an outer surface with analyte indicators.
Colvin does not teach the chelator with the indicator on the outer surface or with the indicator being in a copolymer with the chelator as part of it.
Carter teaches fluorescent sensors for measuring metal ions in living systems (title and abstract). Carter teaches a general feature of fluorescence sensors for metals is a metal chelating or binding moiety and at least one fluorophore capable of absorbing and emitting light (section 2 on page 4566). Carter teaches a platform with fluorophore, linker and chelator which can be individually modified to alter PET (photoinduced electron transfer) within the probe (bottom of 2nd column on page 4567 and top of 1st column on page 4568, also section 2.3.1). Carter teaches “Molecular probes are comprised of small-molecule fluorophores coupled to a metal chelating unit. They may be entirely chemical in nature or comprised of peptide or nucleic acid components” (section 2.3.1). Carter teaches attaching a DPA chelating group to various positions of the benzoic acid moiety of a fluorophore (2nd column of page 4577). Carter teaches using BAPTA (bis(o-aminophenoxy)-ethane-N,N,N′,N′-tetraacetic acid) as a chelator (1st column of page 4578). Carter teaches EGTA (2nd column of page 4591).
One of ordinary skill in the art before the time of filing would have been able to fabricate a sensor for measuring an analyte within a living animal (implantable sensor) by teachings of Colvin where analyte indicator comprises chelating moieties linked with a linker in teachings of Carter and in the form of a hydrogel (by Colvin) are applied on the outer surface of the sensor device housing/encasement. Although Carter does not provide that chelator reduces deterioration of analyte indicator (an intended function of the fabrication), Carter teaches the linking of chelator to fluorophore (indicator), and thus, has this structure of applicant’s claims and would be capable of reducing deterioration of analyte indicator that it is linked to. Carter teaches chelators of applicant’s claims as well and Colvin provides for using a hydrogel form on the outer surface of the sensor encasement in an embodiment. Therefore, there was a reasonable expectation of success in fabricating a sensor with the analyte indicator comprising chelator applied on the outer surface of the sensor’s encasement/housing.
Claims 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Colvin US 20120238842; Carter et al (Chemical Reviews, 2014, volume 114, pages 4564-4601) and Suri US 20110236989 (cited previously).
Colvin and Carter teach the claims as discussed above. Carter teaches a platform with fluorophore, linker and chelator which can be individually modified to alter PET (photoinduced electron transfer) within the probe (bottom of 2nd column on page 4567 and top of 1st column on page 4568, also section 2.3.1).
Colvin and Carter do not teach the indicator chemically attached or copolymerized to chelating agent or other monomers as stated in claims 5-7.
Suri teaches analyte sensors (abstract). Suri provides for hydrogel with hydrophilic monomers, crosslinking monomers and sensing moieties with sensing moieties bound by pendant groups (paragraph 85). Suri provides for HEMA, PEGMA (polyethylene glycol methacrylate), PEGDMA, methacrylic acid, ethylene dimethacrylate and other monomers and crosslinkers for hydrogels (paragraph 87). Suri provides for dye moieties (paragraph 87). Suri teaches controlling destruction by iron ions by chelation (paragraphs 48 and 60). Suri teaches attaching a polymerizable group to a chelating agent/monomer (paragraph 60). Suri teaches fluorescence indicator system polymerized in a hydrogel (paragraph 110).
One of ordinary skill in the art at the time of instant filing would have included an indictor like a dye moiety onto a hydrogel polymeric matrix motivated by Colvin and Carter by the teachings of Suri that provide for attaching dye moieties. There was a reasonable expectation of success of one attaching a indicator/dye moiety to a biocompatible copolymer also having chelating agent of a hydrogel taught by Colvin and Carter to obtain a sensor having a hydrogel coating/outer layer that has such a copolymer compound with indicator moiety. Carter motivates modifying the fluorophor, linker and chelator to alter PET within the probe, and thus, provides one of ordinary skill in the art a reason to routinely optimize these items as are taught by the prior art to obtain desired PET.
Non-Statutory 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, 4 and 10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 13-14, and 21-25 of U.S. Patent No. 12419551. Although the claims at issue are not identical, they are not patentably distinct from each other because as each claim set provides for applying an analyte indicator and compounds capable of binding/sequestering (chelating) metal ions in the form of hydrogel to the outer surface of the analyte sensor. The claims of ‘551 do not have the reacting step or chemically attaching step of metal chelating moieties to analyte indicator, but claim 1 of applicant’s claims only requires the indicator comprise the metal chelating moiety without indicating a need for attaching. It is noted that claim 10 allows the chelators to simply be salts, esters, solvates or hydrates that are unspecified.
Claims 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 15, 18-23, and 25 of U.S. Patent No. 12279862. Although the claims at issue are not identical, they are not patentably distinct from each other because as each claim set provides for applying an analyte indicator and compounds capable of binding/sequestering (chelating) metal ions in the form of hydrogel to the outer surface of the analyte sensor. The claims of ‘862 do not have the reacting step or chemically attaching step of metal chelating moieties to analyte indicator in words, but ‘862 provides for incorporating into a polymer (claim 25 of ‘862), which involves reacting/polymerizing monomers/chemically attaching moieties to form ABCD.
Claims 1-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-28 of U.S. Patent No. 11963761. Although the claims at issue are not identical, they are not patentably distinct from each other because ‘761 claims provides for sensor claims with materials such as compounds with metal chelating moieties and analyte indicators and product-by-process steps as well as a method of fabrication of the sensor that allows for the limitations of applicant’s claims.
Conclusion
No claims are allowed.
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/MARK V STEVENS/Primary Examiner, Art Unit 1613