DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claims 117-119 are omitted from the preliminary amendments filed 18 November 2024 and therefore have not been examined.
Each amendment document that includes a change to an existing claim, including the deletion of an existing claim, or submission of a new claim, must include a complete listing of all claims ever presented (including previously canceled and non-entered claims) in the application.
The current status of all of the claims in the application, including any previously canceled or withdrawn claims, must be given. Status is indicated in a parenthetical expression following the claim number by one of the following status identifiers: (original), (currently amended), (previously presented), (canceled), (withdrawn), (new), or (not entered).
See MPEP 714(II)(C), Amendments to the Claims.
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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 108-116 and 120-131 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-9 of Fisher; Charles J. Jr. et al. (US 12409260 B2).
Regarding pending claim 108, Fisher claims a method capable of treating or inhibiting reactivation of Epstein-Barr Virus (EBV), in a patient, which has experienced a coronavirus infection (claim 1, A method of treating or inhibiting sequelae associated with SARS-COV-2 in a long COVID patient);
the method comprising: a) introducing blood or plasma from the patient into the extracorporeal device comprising a lectin (claim 1, (a) introducing blood or plasma from the patient into an extracorporeal device comprising a lectin);
wherein the patient does not presently have a coronavirus infection and/or EBV infection but exhibits symptoms or sequela of a coronavirus infection and/or EBV infection (claim 1, wherein the patient is a previously SARS-COV-2 infected patient having a reduced or undetectable viral load and exhibiting SARS-COV-2 sequelae that continue for more than 12 weeks post SARS-COV-2 infection);
wherein the blood or plasma from the patient comprises a portion of a coronavirus or a portion of EBV or both (claim 2, wherein the blood or plasma from the patient comprises a spike protein or S1 of SARS-COV-2);
b) contacting the blood or plasma from the patient with the lectin in the extracorporeal device for a time sufficient to allow the portion of the coronavirus or the portion of EBV or both in the blood or plasma to bind to said lectin (claim 1, (b) contacting the blood or plasma from the patient with the lectin in the extracorporeal device for a time sufficient to allow the portion of SARS-COV-2 present in the blood or plasma to bind to said lectin); and
c) reintroducing the blood or plasma obtained after (b) into said patient, wherein the blood or plasma obtained after (b) has a reduced amount of the portion of the coronavirus or the portion of EBV or both as compared to the blood or plasma of said patient prior to (b) (claim 1, (c) reintroducing the blood or plasma obtained after (b) into said patient, wherein the blood or plasma obtained after (b) has a reduced amount of the portion of SARS-COV-2 as compared to the blood or plasma of said patient prior to (b));
thereby treating or inhibiting reactivation of the coronavirus in the patient (claim 1, thereby treating or inhibiting the sequelae associated with SARS-COV-2 in the patient).
Fisher does not explicitly claim that the method treats or inhibits reactivation of EBV in a patient. However, this claim describes coronavirus infection and/or EBV infection in the alternative in each step. Fisher explicitly claims a method that treats or inhibits sequelae of SARS-COV-2. Also, Fisher’s method performs all of the same steps as the claimed method. The only difference appears to be in the expected outcome, which treats or inhibits reactivation of EBV instead of for SARS-COV-2. Fisher’s method performs the same steps of the claimed method and therefore appears suitable for treating sequalae of both EBV and SARS-COV-2.
Regarding pending claim 122, Fisher claims a method capable of treating or inhibiting reactivation of Epstein-Barr Virus (EBV), in a patient, which has experienced a coronavirus infection (claim 1, A method of treating or inhibiting sequelae associated with SARS-COV-2 in a long COVID patient);
the method comprising: a) introducing blood or plasma from the patient into an extracorporeal device comprising a hollow fiber cartridge (claim 1, (a) introducing blood or plasma from the patient into an extracorporeal device comprising a lectin; claim 7, wherein the extracorporeal device comprises a hollow fiber cartridge);
which comprises a lectin adsorbed to a solid support (claim 5, wherein the lectin is immobilized or adsorbed on to a solid support);
wherein the blood or plasma from the patient comprises a portion of a COVID-19 virus (claim 2, wherein the blood or plasma from the patient comprises a spike protein or S1 of SARS-COV-2);
b) contacting the blood or plasma from the patient with the lectin in the extracorporeal device for a time sufficient to allow the portion of the COVID-19 virus present in the blood or plasma to bind to said lectin (claim 1, (b) contacting the blood or plasma from the patient with the lectin in the extracorporeal device for a time sufficient to allow the portion of SARS-COV-2 present in the blood or plasma to bind to said lectin); and
c) reintroducing the blood or plasma obtained after (b) into said patient, wherein the blood or plasma obtained after (b) has a reduced amount of the portion of the COVID- 19 virus as compared to the blood or plasma of said patient prior to (b) (claim 1, (c) reintroducing the blood or plasma obtained after (b) into said patient, wherein the blood or plasma obtained after (b) has a reduced amount of the portion of SARS-COV-2 as compared to the blood or plasma of said patient prior to (b)).
Fisher does not explicitly claim that the method treats or inhibits reactivation of EBV in a patient. However, this claim describes coronavirus infection and/or EBV infection in the alternative in each step. Fisher’s method also performs all of the same steps as the claimed method. Regarding the rationale that Fisher’s method will also treat or inhibit reactivation of EBV, see the discussion of claim 108 above.
Regarding pending claims 121 and 130, Fisher claims that the patient does not have detectable circulating coronavirus (claim 1, treating or inhibiting sequelae associated with SARS-COV-2 in a long COVID patient … wherein the patient is a previously SARS-COV-2 infected patient having a reduced or undetectable viral load).
Regarding pending claims 109-116 and 123-129, Fisher claims all limitations in patented claims 1-9 as shown in table 1.
Table 1: Fisher double patenting
Pending claim
Fisher
Pending claim
Fisher
Pending claim
Fisher
109
3
115
7
126
4
110
1
116
8
127
8
111
2
120
9
128
5
112
4
123
6
129
6
113
5
124
2
131
1
114
6
125
3
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Sohka; Takayuki et al. US 20100069815 A1
Miao; Wenliang et al. US 20150246170 A1
Van Bruggen; Robin et al. US 20180264186 A1
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/Adam Marcetich/
Primary Examiner, Art Unit 3781