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 .
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.
Status of the Claims
Applicant’s election without traverse of Group II (claims 9-19) in the reply filed on 06/10/2026 is acknowledged. Claims 1-8 (Group I) and claims 20-21 (Group III) have been withdrawn from consideration. Claims 11-18 have been previously amended. Claims 9-19 are examined herein.
Priority
This application, 18/761,632, filed 07/02/2024, is a CON of PCT/US24/26502 filed on 04/26/2024, and claims benefit of provisional applications 63/613,095 filed on 12/21/2023, and 63/462,586 filed on 04/28/2023. This priority is acknowledged and the claims examined herein are treated as having an effective filing date of 04/28/2023.
Information Disclosure Statement
The Information Disclosure Statements filed on 07/02/2024 are acknowledged and have been considered.
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.
Claims 9-19 are rejected under 35 U.S.C. 103 as being unpatentable over Holtlund et al. (US 9897594 B2), (herein referred to as Holtlund), in view of McQuiston et al. (US 11016105 B2), (herein referred to as McQuiston).
Regarding claims 9, 11, and 19, Holtlund teaches an assay method comprising treating the sample under conditions whereby to cause cell lysis, preferably by means of a detergent; and subjecting the thus-generated lysed sample to conditions causing the cleavage of nucleic acid molecules, and additionally provides the use of nucleic acid cleavage conditions in enhancing a membrane assay, a device for carrying out such an assay, and a kit for use in the assay (abstract). Holtlund teaches the use of nucleic acid cleavage conditions (nuclease) to reduce membrane blockage in an assay method comprising the flow of a detergent lysed cell-containing sample through a membrane of pore size 10 μm or less (preferably 2 μm or less) (column 8, lines 27-31). Holtlund teaches that generally, two inter-related improvements are facilitated and either or both may be important in any particular assay (column 8, lines 31-33). Holtlund teaches that essentially, the nucleic acid cleavage reduces membrane blockage and this improvement has two primary results; the flow of fluid through the membrane is enhanced, and/or the non-specific entrapment of components from the sample is reduced (column 8, lines 33-37). Holtlund teaches that each of these then has additional advantages in that better flow provides for faster and/or more reliable assays and reduced non-specific binding allows for lower background signals, higher sensitivity and greater discrimination in the assay (column 8, lines 37-41). Holtlund teaches that the “use” provided by the present invention may be use in any of the methods described herein may employ any of the chemical or biological reagents or other techniques described herein and elsewhere to generate nucleic acid cleavage conditions, and that nuclease mediated cleavage is particularly favoured (column 8, lines 41-47).
Holtlund teaches that assaying for a sample component may be carried out in any of the many formats which are well known in the art, such as an assay for a sample component by a membrane assay, especially a membrane concentration assay. Holtlund teaches that in an assay of this type, a specific binding ligand, such as an antibody, receptor, or antibody fragment, complex or derivative (e.g. single chain antibody) is immobilised on the membrane and serves to capture and concentrate the analyte of interest. Holtlund teaches that this captured analyte may then be detected directly, or more commonly will be bound by a further (specific or non-specific) binder (such as an antibody) which in turn will be bound or conjugated to a signal forming moiety. Holtlund teaches that such signal forming moieties may be radioactive, coloured, fluorescent, chemi- or bio-luminescent or capable of reacting or processing a substrate to generate any detectable signal. Holtlund teaches that the assay then typically involves detecting the detectable signal and optionally comparing this to pre-determined values or standards to determine (in a qualitative, semi-quantitative or quantitative way) the concentration of the component of interest in the original sample. (column 7, lines 19-40). Holtlund teaches that a particularly preferred format of the present invention comprises contacting a cell-containing body sample (preferably a whole blood sample) with lysis conditions such as a detergent (e.g. DOC) and a biological or chemical “nuclease” (such as Micrococcal nuclease) in the presence of any necessary metals or cofactors (such as Mg2+ or Ca2+) (column 7, lines 41-46).
However, Holtlund does not teach wherein the biomarker is glial fibrillary acid protein (GFAP), ubiquitin carboxy- terminal hydrolase L1 (UCH-L1), or GFAP and UCH-L1, or where the biomarker is a TBI biomarker.
McQuiston teaches methods for aiding in the diagnosis and evaluation of a subject to determine whether the subject has sustained a traumatic brain injury (TBI) by detecting or measuring a combination of the levels of ubiquitin carboxy-terminal hydrolase L1 (UCH-L1) and glial fibrillary acidic protein (GFAP) in samples taken at various time points within 48 hours after the subject has sustained or may have sustained an injury to the head (abstract). McQuiston teaches that there is a need for a simple, objective, accurate measurement available to help in patient assessment, as much of TBI evaluation and diagnosis is based on subjective data (column 1, lines 40-43). McQuiston teaches that clinicians and patients need objective, reliable information to accurately evaluate this condition to promote appropriate triage and recovery (column 1, lines 53-56). McQuiston teaches that in some embodiments the assay is an immunoassay, the subject is a human and the sample is whole blood, and in yet other embodiments, the assay is a point-of-care assay, the subject is a human and the sample is whole blood (column 5, lines 34-38). McQuiston also teaches the measurement of the level of GFAP comprises: (a) contacting the sample, either simultaneously or sequentially, in any order with: (1) at least one GFAP-capture antibody, which binds to an epitope on GFAP or GFAP fragment to form an at least one GFAP-capture antibody-GFAP antigen complex, and (2) at least one GFAP-detection antibody which includes a detectable label and binds to an epitope on GFAP that is not bound by the GFAP-capture antibody, to form a GFAP antigen—at least one GFAP-detection antibody complex, such that an at least one GFAP-capture antibody-GFAP antigen—at least one GFAP-detection antibody complex is formed; and (b) measuring the amount or concentration of GFAP in the sample based on the signal generated by the detectable label in the at least one GFAP-capture antibody-GFAP antigen—at least one GFAP-detection antibody complex (column 4, lines 5-23). McQuiston also teaches the same method for measuring UCH-L1 (column 4, lines 24-44).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to have modified the method/assay for measuring an analyte that uses nuclease, as taught by Holtlund, to measure GFAP and UCH-L1 as a TBI biomarker, as taught by McQuiston, in order to create a more accurate method/assay to evaluate TBI to promote appropriate triage and recovery. McQuiston teaches a need for such a simple, objective, accurate measurement available to help in patient assessment, as much of TBI evaluation and diagnosis is based on subjective data. The method of Holtlund would improve measurement accuracy of GFAP and UCH-L1 measurement by exposing the sample to nuclease, which could improve patient outcomes in comparison to less accurate measurement methods. A person of ordinary skill would have had a reasonable expectation of success in making this modification because the methods/assays of Holtlund and McQuiston share several key similarities, namely both recite embodiments that: measure the analyte using a capture antibody-biomarker-detection antibody complex, use a whole blood sample, and use a point-of-care style assay. Furthermore, the modification would simply require substituting the analyte binding antibodies in the measurement method of Holtlund for GFAP and UCH-L1 binding antibodies, which McQuiston teaches are commercially available. The determination and substitution of such antibodies is a practice that is well-understood, routine, and conventional in the field.
Regarding claim 10, Holtlund teaches that in any of the methods of the present invention, the nucleic acid cleavage will preferably be conducted prior to contact of the sample with a separation membrane, but may alternatively occur after the sample has been applied to such a membrane (column 7, line 66 – column 8, line 3). Holtlund teaches 25 ul “blood” sample was added to 400 ul buffered detergent containing 2 mM MgCl, with or without 1 U nuclease (column 14, lines 24-26). Holtlund teaches that the blood was mixed very gently with the lysis solution in order to reduce shearing forces to a minimum, and 50 ul of this solution was added to a membrane flow - through device (membrane area 9.4 mm) and flow time taken (column 14, lines 26-31). Holtlund teaches that the membrane was coated with anti-CRP anti bodies, and subsequently 50 ul gold-conjugated anti-CRP antibody was added followed by 50 ul washing solution (column 14, lines 30-32).
Regarding claims 12, 13 and 16, Holtlund teaches that one particularly suitable nuclease is Micrococcal nuclease (also called Micrococcus nuclease since it derives from Micrococcus pyrogenes), a Ca2+ dependent endonuclease which preferentially cleaves DNA within the linker region between the 11 nm diameter nucleosomes (column 6, lines 15-20). Holtlund teaches that in one example, 0.1-0.5 U/ml Micrococcus nuclease was added to blood samples lysed with detergent, together with 1 mM CaCl2 and incubated for 30 sec prior to membrane flow-through analysis (column 6, lines 23-26).
Regarding claims 14 and 15, Holtlund teaches that 5 μl of C, W and R were in the next experiment gently mixed with 400 μl of dilution liquid containing 1 mM CaCl2 and 0.4 U Micrococcus nuclease and processed in the test devices as described above (column 12, lines 23-27). In another example, Holtlund teaches that the samples were analysed using normal dilution liquid or dilution liquid containing 5 mM CaCl2 and 0.5 U Micrococcal nuclease (column 13, lines 44-47). Holtlund teaches that in one example, 25 ul “blood” sample was added to 400 ul buffered detergent containing 2 mM MgCl, with or without 1 U nuclease (column 14, lines 24-26).
Regarding claim 17, Holtlund teaches that one preferred device comprises a chamber for accepting a blood sample; a chamber for accepting a diluent comprising a detergent (such as DOC), a nuclease (such as Micrococcal nuclease) and any metal or cofactor (such as Ca2+); a membrane having pores no larger than 10 μm, preferably 2 μm (e.g. around 0.45 μm) and having immobilised thereon a specific binding ligand (e.g. and antibody or a fragment, construct or derivative thereof) for at least one analyte (e.g. CRP, holoTC, SAH); and a chamber for accepting a solution comprising at least one additional binder and optionally a signal generating moiety. The device may additionally comprise a region, cuvette or window for assessing a signal generated from the signal generating moiety and corresponding (directly or indirectly) to the presence, absence or concentration of the component of interest (column 9, lines 43-57)
Holtlund teaches that the blood was mixed very gently with the lysis solution in order to reduce shearing forces to a minimum, and 50 ul of this solution was added to a membrane flow - through device (membrane area 9.4 mm) and flow time taken (column 14, lines 26-31). Holtlund teaches that the membrane was coated with anti-CRP anti bodies, and subsequently 50 ul gold-conjugated anti-CRP antibody was added followed by 50 ul washing solution (column 14, lines 30-32). Holtlund teaches that the membrane colour was finally measured using a reflectometer (NycoCard Reader) (column 14, lines 32-34). Holtlund teaches that the kits and devices of the present invention will most preferably be suitable for use in or with automated analysis equipment, and that most suitably, this will be “point-of-care” automated analysis equipment (column 10, lines 19-22).
Regarding claim 18, Holtlund teaches wherein the sample is a whole blood sample (column 7, lines 41-46).
Conclusion
For all the reasons discussed above, claims 9-19 are rejected and therefore no claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEXANDER JOSEPH HOFFMAN whose telephone number is (571)272-9080. The examiner can normally be reached 10:00-6:30 M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bao-Thuy Nguyen can be reached at (571) 272-0824. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALEXANDER J. HOFFMAN/ Examiner, Art Unit 1677
/BAO-THUY L NGUYEN/Supervisory Patent Examiner, Art Unit 1677 September 21, 2026
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