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 .
Priority
The instant application claims benefit to PCT Application No. PCT/EP2022/087657 (filed 12/22/22), GB2203535.6 (filed on 03/14/2022), and GR20210100910 (filed on 12/23/2021) and is acknowledged. The instant claims herein are examined using the effective filing date of 12/23/2021 for the basis of any prior art rejections.
Information Disclosure Statement
The information disclosure statement(s) (IDS) submitted on 06/21/2024 was properly filed in compliance with 37 CFR 1.97. Accordingly, the information disclosure statement(s) was considered.
Specification
The disclosure is objected to because of the following informalities: the specification refers to the drawings as “Figure” instead of “Fig.”
Appropriate correction is required.
Drawings
The drawings are objected to because the drawings recite “Figure” instead of “Fig.” Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 19 objected to because of the following informalities: the claim recites “BCIP/NBT (a combination of BCIP (5-Bromo-4-chloro-3-indolyl phosphate) and NBT (nitro blue tetrazolium))”. Applicant is reminded that the full name of the chemical must come before any abbreviations. It is suggested to Applicant to amend the claim to recite, e.g., “5-Bromo-4-chloro-3-indolyl phosphate (BCIP) and nitro blue tetrazolium (NBT).” Appropriate correction is 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 11, 14, 19, and 23-25 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 11, the phrase "for example" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 14, the phrase "preferably" throughout the claims render the claims indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. For the purposes of compact patent prosecution, the limitations after the “preferably” language has been construed to be optional limitations of the claimed washing step.
Regarding claim 19, the claim recites “BCIP/NBT (a combination of BCIP (5-Bromo-4-chloro-3-indolyl phosphate) and NBT (nitro blue tetrazolium))”. The language within the parentheses is indefinite because it seems that the phrase within the parentheses is an explanation of the claimed BCIP/NBT. It is suggested to Applicant to remove the parentheses around the phrase or delete the phrase.
Claim 23 recites the limitation "a magnet positioned proximate to the chip" (emphasis added) in line 5. There is insufficient antecedent basis for this limitation in the claim because there is no previous recitation of any chip earlier in the claim or in claim 1 (from which this claim ultimately depends). Note that claims 24-25 are also indefinite for dependency on indefinite claim 23.
Claim Rejections - 35 USC § 102/103
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 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.
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.
First rejection
Claims 1-2, 4-10, 12, 15, 19, and 23-25 are rejected under 35 U.S.C. 102((a)(1)/(a)(2)) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Lee et al (US11125745B2; see also WO 2017132564A2 cited in Applicant IDS; hereinafter “Lee”).
Lee teaches a method of detecting a presence of a target analyte in a first fluid sample, such as plasma samples (a method for measuring an analyte of interest in a biological sample as in claim 1) comprising: providing a plurality of magnetic beads to a first fluid sample (combining the sample with magnetically susceptible beads as in claim 1), wherein the plurality of magnetic beads comprises first binding moieties that specifically bind to the target analyte (as in claim 1); allowing the plurality of magnetic beads to bind to the target analyte within the first fluid sample; transferring the magnetic beads from the first fluid sample to a second fluid sample, wherein the second fluid sample comprises second binding moieties that specifically bind to the target analyte (as in claim 1), and wherein the second binding moieties are bound to a reactive enzyme i.e., the second binding moiety conjugated to an enzyme as in claim 1); allowing the second binding moieties within the second fluid sample to bind to the target analyte bound to the first binding moieties of the magnetic beads (; combining the second fluid sample comprising the plurality of magnetic beads and the second binding moieties with an electron mediator solution to obtain a third fluid sample; providing the third fluid sample to a first sample detection region of a device comprising a plurality of sample detection regions, wherein each sample detection region is arranged on a different corresponding set of electrodes (as in claim 1), and wherein each set of electrodes is electrically coupled to a different corresponding potentiostat of a plurality of potentiostats; inducing an oxidation-reduction reaction between electron mediators within the third fluid sample and the reactive enzyme, wherein a signal produced by a first potentiostat of the plurality of potentiostats is due to the oxidation-reduction reaction; and monitoring a plurality of outputs of the plurality of potentiostats, to determine a presence of the target analyte (i.e., obtaining an electrochemical measurement using the electrode as in claim 1 (see claim 1-3).
Lee teaches the first and second binding moieties may be antibodies that can be conjugated to the magnetic beads (as in claim 1, see col 11; see also cols 23-24). Lee also teaches the magnet assembly used in the method includes a magnet positioned in the magnet assembly such that a magnetic field from the magnet extends through the substrate and the first set of electrodes (i.e., retains the magnetically susceptible beads on the electrode using a magnetic field) into an area above the first sample detection region upon coupling the magnet assembly to the substrate (see abstract), the reactive enzyme conjugated to the second antibody is horseradish peroxidase (see claim 4), and that the substrate for the enzyme is 3,3',5,5'-Tetramethylbenzidine (TMB) (see claim 4).
In the alternative, it would have been prima facie obvious to one of ordinary skill at the time of filing to use the method of Lee with a reasonable expectation of success. One of ordinary skill would have been motivated to use the method of Lee because Lee teaches that the “bead-based magnetic enrichment brings several advantages in the sensing system. First, the method provides a convenient way of concentrating signal sources on the electrodes, which enhances the detection sensitivity. Second, compared to the surface-based capture wherein antibodies are immobilized on the chip surface, the bead-based method is amenable to reliable and simpler conjugation chemistry, and benefits from faster binding kinetics between antibodies and exosomes. Third, the bead-bound vesicles could be readily recovered for downstream molecular analyses in tandem with the sensing system.”
Regarding claim 2, Lee does not explicitly teach the enzyme substrate is converted by the enzyme into a soluble electroactive molecule at the electrode. However, the claim language seems to recite a limitation that is an intended result of contacting the enzyme substrate with the enzyme. As such, absent evidence to the contrary, the substrate would be converted by the enzyme into a soluble electroactive molecule as the wherein clause in a method claim is “not given weight when it simply expresses the intended result of a process step positively recited.’" (see MPEP 2111.04).
Regarding claim 4, Lee teaches incubating the sample and composition (see col 29).
Regarding claim 5 and 8, Lee teaches the magnet is configured to be positioned adjacent or relative to the substrate such that a magnetic field from the magnet extends through the substrate (e.g., to attract magnetic beads to the substrate and the electrodes formed thereon) (retaining the magnetic beads in a fixed position using a magnetic field) (see col 4, see also col 13, lines 40-50).
Regarding claim 6, Lee teaches the magnetic field from the magnet extends through the substrate and the first set of electrodes (i.e., the fixed position is at the electrode).
Regarding claim 7, Lee teaches retaining the beads in a magnetic field (see above) and washing the beads to remove unbound analytes (e.g., by magnetically collecting the magnetic beads) (i.e., modulating the magnetic field by moving the beads to a first and second position; see col 17).
Regarding claim 9, Lee teaches use of magnetic actuation (see col 31) for the magnetic assay and electrochemical sensing.
Regarding claim 10, Lee teaches that the apparatus is a microfluidic device (see instrument 400; Fig. 4 and 120 a-h and 420 a-h, where the magnet assembly is positioned/embedded beneath the wells where the fluid is positioned for analysis (i.e., the magnetic field is located within a microfluidic device and the magnetic field is actuated in a direction perpendicular to the direction of flow) (see Fig. 3-6).
Regarding claim 12, Lee teaches use of washing solutions, like washing buffers (see claim 18).
Regarding claim 15, Lee teaches the enzyme is horseradish peroxidase (see above).
Regarding claim 19, Lee teaches the substrate for the enzyme is TMB (see above).
Regarding claim 23-25, Lee teaches a kit including magnetic beads, an immunoassay apparatus (integrated magnetic-electrochemical exosome system; iMEX) including an electrode, and a magnet/magnetic bar (see col 3, lines 62-col 4 lines 1-15), where the magnet is a permanent magnet (as in claim 25; see col 29). Furthermore, Lee teaches that the magnetic beads in the kit are added to the fluid sample before exposure to the electrode (see, e.g., Fig. 3-4, 5A and 5B; Fig. 42), such that, absent evidence to the contrary, the kits of Lee would contain a means of retaining the magnetic beads at a separate location away from the electrode.
Accordingly, the claimed invention was anticipated, or in the alternative, rendered prima facie obvious over Lee, especially in the absence of evidence to the contrary.
Second rejection
Claims 11, 13-14, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Lee.
As discussed above, Lee teaches, inter alia, a method of detecting a presence of a target analyte in a first fluid sample, such as plasma samples (a method for measuring an analyte of interest in a biological sample as in claim 1) comprising: providing a plurality of magnetic beads to a first fluid sample (combining the sample with magnetically susceptible beads as in claim 1), wherein the plurality of magnetic beads comprises first binding moieties that specifically bind to the target analyte (as in claim 1); allowing the plurality of magnetic beads to bind to the target analyte within the first fluid sample; transferring the magnetic beads from the first fluid sample to a second fluid sample, wherein the second fluid sample comprises second binding moieties that specifically bind to the target analyte (as in claim 1), and wherein the second binding moieties are bound to a reactive enzyme i.e., the second binding moiety conjugated to an enzyme as in claim 1); allowing the second binding moieties within the second fluid sample to bind to the target analyte bound to the first binding moieties of the magnetic beads (; combining the second fluid sample comprising the plurality of magnetic beads and the second binding moieties with an electron mediator solution to obtain a third fluid sample; providing the third fluid sample to a first sample detection region of a device comprising a plurality of sample detection regions, wherein each sample detection region is arranged on a different corresponding set of electrodes (as in claim 1), and wherein each set of electrodes is electrically coupled to a different corresponding potentiostat of a plurality of potentiostats; inducing an oxidation-reduction reaction between electron mediators within the third fluid sample and the reactive enzyme, wherein a signal produced by a first potentiostat of the plurality of potentiostats is due to the oxidation-reduction reaction; and monitoring a plurality of outputs of the plurality of potentiostats, to determine a presence of the target analyte (i.e., obtaining an electrochemical measurement using the electrode as in claim 1 (see claim 1-3).
Regarding claim 11, Lee does not explicitly teach that the magnetically susceptible beads are moved between the first and second positions at least 20 times. However, it would have been prima facie obvious to move the magnetic beads (e.g., at least 20 times) between the first and second position to recollect the magnetic beads during the wash step, and advantageously continue with the sample preparation process with a reasonable expectation of success (see col 18, lines 57-66).
Regarding claim 13 and 14, Lee does not explicitly teach sequential or separate washing of the beads with washing solution and/or air. However, it would have been prima facie obvious to wash the beads sequentially and separately using the washing solution and air, e.g., at least twice, three, or four times, etc. to advantageously remove unbound analytes, remove unbound secondary and tertiary molecules, remove excess antibodies and enzymes to improve the detection sensitivity with a reasonable expectation of success (see col 9, 19, and 27).
Regarding claim 22, Lee teaches concentrating the beads onto the surface of the electrodes and sensors (see col 26, lines 55-63; Fig. 14). While Lee does not teach at least 50% of the beads are retained at the surface as required by the claims, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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) (see MPEP 2144.05).
Accordingly, the claimed invention was prima facie obvious to one of ordinary skill at the tie of filing, especially in the absence of evidence to the contrary.
Third rejection
Claims 16 is rejected under 35 U.S.C. 103 as being unpatentable over Lee as applied to claims 1-2, 4-15, 19, and 22-25 above, and further in view of Zhang et al. ("An integrated chip for rapid, sensitive, and multiplexed detection of cardiac biomarkers from fingerprick blood" Biosensors and Bioelectronic Volume 28, Issue 1, 15 October 2011, Pages 459-463; hereinafter “Zhang”).
As discussed above, the claims were anticipated, or in the alternative, rendered prima facie obvious over Lee.
Lee does not explicitly teach the analyte of interest is brain natriuretic peptide, N-terminal pro-BNP, cardiac troponin, or cardiac troponin subunit I.
However, Zhang teaches that standard assays to detect cardiac biomarkers, like enzyme-linked immunosorbent assay (ELISA) are sensitive, but suffer from important sample and reagent consumption in large-scale studies. Moreover, they are performed in central laboratories of clinics and hospitals and take a long time, which is highly incompatible with the quick decisions needed to save a heart attack patient. Zhang teaches an integrated chip allowing rapid, sensitive, and simultaneous analysis fingerprick blood to detect three cardiac biomarkers, including cardiac troponin T (cTnT) (se abstract, throughout, see also Fig. 2-3).
Therefore, it would have been prima facie obvious to one of ordinary skill at the time of filing to modify the method of Lee by analysing cardiac troponin levels as taught by Zhang to arrive at the claimed invention with a reasonable expectation of success. One of ordinary skill would have been motivated to make the modification because Zhang explicitly teaches that cardiac biomarkers such a s troponin can be quickly and successfully detected using microfluidic assays.
Accordingly, the claimed invention was prima facie obvious to one of ordinary skill at the tie of filing, especially in the absence of evidence to the contrary.
Conclusion
NO CLAIMS ALLOWED.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Berger et al. "Simultaneous electrical detection of IL-6 and PCT using a microfluidic biochip platform". Biomedical Microdevices (2020) 22:36 https://doi.org/10.1007/s10544-020-00492: teaches microfluidic biochip POC system that correlates microbead capture to IL-6 and PCT concentrations. A multiplexed microbead immunoassay is developed and validated for simultaneous detection of both IL-6 and PCT from human plasma samples to detect sepsis biomarkers (see abstract, throughout).
Ng et al. "Immunoassays in microfluidic systems" Anal Bioanal Chem (2010) 397:991–1007: teaches a review, which summarizes developments in microfluidics-based immunoassays since 2000, includes four sections, focusing on the configurations of immunoassays that have been implemented in microfluidics, the main fluid handling modalities that have been used for microfluidic mmunoassays, multiplexed immunoassays in microfluidic platforms, and the emergence of label-free detection techniques (see abstract, throughout).
Sista et al (Heterogeneous immunoassays using magnetic beads on a digital microfluidic platform. Lab Chip. 2008 Dec;8(12):2188-96. doi: 10.1039/b807855f. Epub 2008 Oct 14): teaches “digital microfluidic platform for performing heterogeneous sandwich immunoassays based on efficient handling of magnetic beads is presented in this paper. This approach is based on manipulation of discrete droplets of samples and reagents using electrowetting without the need for channels where the droplets are free to move laterally. Droplet-based manipulation of magnetic beads therefore does not suffer from clogging of channels. Immunoassays on a digital microfluidic platform require the following basic operations: bead attraction, bead washing, bead retention, and bead resuspension. Several parameters such as magnetic field strength, pull force, position, and buffer composition were studied for effective bead operations. Dilution-based washing of magnetic beads was demonstrated by immobilizing the magnetic beads using a permanent magnet and splitting the excess supernatant using electrowetting. Almost 100% bead retention was achieved after 7776 fold dilution-based washing of the supernatant. Efficient resuspension of magnetic beads was achieved by transporting a droplet with magnetic beads across five electrodes on the platform and exploiting the flow patterns within the droplet to resuspend the beads.” (see abstract, throughout).
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/G.C.R./Examiner, Art Unit 1651
/THOMAS J. VISONE/Supervisory Patent Examiner, Art Unit 1672
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