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 Interpretation
Regarding limitations recited in claims 1-7 and 24-35 which are directed to a manner of operating disclosed reactor, it is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115.
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 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.
Claim(s) 1-5, 7, 24-28, 30, is/are rejected under 35 U.S.C. 103 as being unpatentable over Akgonullu et al. (SPR nanosensor based on molecularly imprinted polymer film with gold nanoparticles for sensitive detection of aflatoxin B1), in view of Jiang et al. (Surface-plasmon-coupled chemiluminescence amplification of silver nanoparticles modified immunosensor for high-throughput ultrasensitive detection of multiple mycotoxins) and Sergelen (Reversible Plasmonic Biosensors Based on Aptamers and Hydrogels).
Regarding claim 1, Akgonullu discloses a sensor chip (Scheme 1) comprising a molecularly imprinted polymer (MIP) layer formed as a membrane or thin film (see: AFB1 imprinted polymer) having embedded gold nanoparticles (see: AuNPs), whereby the MIP selectively binds a fluorophore of interest, and whereby fluorescence emission from the bound fluorophore is enhanced upon ultraviolet irradiation by the gold nanoparticles (see: enhanced-SPR chip for sensing AFB1).
Akgonullu does not explicitly disclose the nanoparticles being silver nanoparticles.
Jiang teaches an analogous surface plasmon immunosensor (Scheme 1) for ultrasensitive detection of mycotoxins including AFB1 (see: AFB1) comprising modified silver nanoparticles (see: AgNPs).
Sergelen teaches a plurality of other equivalent metals for use in SPR sensing were well known in the art, including silver (pg. 9/1.5. SPR biosensor surface architecture).
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to select silver as the material for the nanoparticles in the device disclosed by Akgonullu, as taught by Jiang and Sergelen, in order to provide for a less expensive and more easily obtainable device (Jiang: pg. 59/col. 1/para. 4, see: respective advantages of AuNPs vs. AgNPs). Additionally, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 2, Akgonullu further discloses the MIP selectively binds a fluorophore selected from the group consisting of aflatoxin B1 (AFB1), aflatoxin B2 (AFB2), aflatoxin G1 (AFG1), aflatoxin G2 (AFG2), deoxynivalenol (DON), zearalenone (ZEA), fumonisin B1 (FB1), fumonisin B2 (FB2), fumonisin B3 (FB3), ochratoxin (OhA), and trichothecene (Scheme 1, see: AFB1 imprinted polymer).
Regarding claim 3, Akgonullu further discloses the fluorophore of interest is a mycotoxin (Scheme 1, see: AFB1 imprinted polymer).
Regarding claim 4, Akgonullu further discloses the fluorophore of interest is an aflatoxin. (Scheme 1, see: AFB1 imprinted polymer).
Regarding claim 5, Akgonullu further discloses the aflatoxin is selected from the group consisting of aflatoxin B1, aflatoxin B2, aflatoxin G1, and aflatoxin G2. (Scheme 1, see: AFB1 imprinted polymer).
Regarding claim 7, modified Akgonullu further discloses the silver nanoparticles are nanoparticles are evenly distributed in the structure of the MIP (Akgonullu: Scheme 1, see: even distribution of nanoparticles in the imprinted polymer).
Regarding claim 24, Akgonullu discloses a detection element (Scheme 1) comprising a molecularly imprinted polymer (MIP) layer formed as a membrane or thin film (see: AFB1 imprinted polymer), the MIP layer comprising gold nanoparticles embedded within the polymer matrix (see: AuNPs), wherein the MIP selectively binds a target analyte, and wherein the gold nanoparticles increase fluorescence emission intensity of the bound analyte under ultraviolet irradiation relative to an otherwise identical MIP layer that does not contain the gold nanoparticles (see: enhanced-SPR chip for sensing AFB1).
Akgonullu does not explicitly disclose the nanoparticles being silver nanoparticles.
Jiang teaches an analogous surface plasmon immunosensor (Scheme 1) for ultrasensitive detection of mycotoxins including AFB1 (see: AFB1) comprising modified silver nanoparticles (see: AgNPs).
Sergelen teaches a plurality of other equivalent metals for use in SPR sensing were well known in the art, including silver (pg. 9/1.5. SPR biosensor surface architecture).
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to select silver as the material for the nanoparticles in the device disclosed by Akgonullu, as taught by Jiang and Sergelen, in order to provide for a less expensive and more easily obtainable device (Jiang: pg. 59/col. 1/para. 4, see: respective advantages of AuNPs vs. AgNPs). Additionally, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 25, Akgonullu further discloses the MIP layer comprises a plurality of molecularly imprinted binding sites, each binding site being complementary in size and shape to the target analyte (Scheme 1, see: AFB1 imprinted polymer).
Regarding claim 26, Akgonullu further discloses the fluorophore is a naturally fluorescent analyte and the MIP selectively binds the fluorophore (Scheme 1, see: AFB1 imprinted polymer).
Regarding claim 27, Akgonullu further discloses the target analyte is an aflatoxin and the MIP selectively binds the aflatoxin (Scheme 1, see: AFB1 imprinted polymer).
Regarding claim 28, Akgonullu further disclosesthe aflatoxin is selected from the group consisting of aflatoxin B1, aflatoxin B2, aflatoxin G1, and aflatoxin G2 (Scheme 1, see: AFB1 imprinted polymer).
Regarding claim 30, Akgonullu further discloses the silver nanoparticles are substantially uniformly distributed throughout the MIP layer (Akgonullu: Scheme 1, see: even distribution of nanoparticles in the imprinted polymer).
Regarding claim 32, Akgonullu discloses a detection element (Scheme 1) comprising a molecularly imprinted polymer (MIP) layer (see: AFB1 imprinted polymer) having gold nanoparticles embedded within the polymer matrix (see: AuNPs), wherein the MIP selectively binds a fluorophore, and wherein the gold nanoparticles increase fluorescence emission intensity of the bound fluorophore under ultraviolet irradiation relative to an otherwise identical MIP layer that does not contain the gold nanoparticles (see: enhanced-SPR chip for sensing AFB1).
Akgonullu does not explicitly disclose the nanoparticles being silver nanoparticles.
Jiang teaches an analogous surface plasmon immunosensor (Scheme 1) for ultrasensitive detection of mycotoxins including AFB1 (see: AFB1) comprising modified silver nanoparticles (see: AgNPs).
Sergelen teaches a plurality of other equivalent metals for use in SPR sensing were well known in the art, including silver (pg. 9/1.5. SPR biosensor surface architecture).
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to select silver as the material for the nanoparticles in the device disclosed by Akgonullu, as taught by Jiang and Sergelen, in order to provide for a less expensive and more easily obtainable device (Jiang: pg. 59/col. 1/para. 4, see: respective advantages of AuNPs vs. AgNPs). Additionally, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 33, Akgonullu further discloses the fluorophore is a naturally fluorescent analyte (Scheme 1, see: AFB1 imprinted polymer).
Regarding claim 35, Akgonullu further discloses the silver nanoparticles are substantially uniformly distributed throughout the MIP layer (Akgonullu: Scheme 1, see: even distribution of nanoparticles in the imprinted polymer).
Claim(s) 6, 8, 29, 31, and 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Akgonullu et al. (SPR nanosensor based on molecularly imprinted polymer film with gold nanoparticles for sensitive detection of aflatoxin B1), in view of Jiang et al. (Surface-plasmon-coupled chemiluminescence amplification of silver nanoparticles modified immunosensor for high-throughput ultrasensitive detection of multiple mycotoxins) and Sergelen (Reversible Plasmonic Biosensors Based on Aptamers and Hydrogels), as applied to claim 1, in further view of Abargues et al. (Optical properties of different polymer thin films containing in situ synthesized Ag and Au nanoparticles).
Regarding claim 6, modified Akgonullu further discloses silver nanoparticles are roughly spherical in shape (Akgonullu: Fig. 1, see: round shape; Jiang: Fig. 1, see: round shape).
Modified Akgonullu does not explicitly disclose the silver nanoparticles having a size of about 30-70 nm.
Abargues (Table 1) teaches that it was known in the art that increasing the diameter of an Ag nanocomposite will increase the λLSPR. Therefore the λLSPR is a variable that can be modified, among others, by varying the diameter of said Ag nanocomposite. For that reason, the size of the AgNP, would have been considered a result effective variable by one having ordinary skill in the art, before the effective filing date of the claimed invention. As such, without showing unexpected results, the size of the AgNP cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the claimed invention, would have optimized, by routine experimentation, the size of the AgNP in the apparatus of modified Akgonullu to obtain the desired λLSPR (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding claim 8, modified Akgonullu does not explicitly disclose the MIP comprises a polymer selected form the group consisting of acrylamide (AA), poly(ethyleneimine), poly(hydroxyethyl methacrylate), poly(vinylpyrrolidone), novolak, poly(4-vinylphenol), poly(4-vinylphenol)-co-(methyl methacrylate), and poly(styrene-co-allyl alcohol).
Abargues teaches a plurality of nanocomposite polymer films suitable for SPR including PEI, PVP, OHEMA, PS6-co-AA4, Novolak, P4VP, and P4VP5-co-MMA5 (Table 1). It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to substitute any one of a plurality of appropriate polymers as the material in the device disclosed by modified Akgonullu, as taught by Abargues, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 29, modified Akgonullu does not explicitly disclose the silver nanoparticles have an average diameter of about 30 nm to about 70 nm.
Abargues (Table 1) teaches that it was known in the art that increasing the diameter of an Ag nanocomposite will increase the λLSPR. Therefore the λLSPR is a variable that can be modified, among others, by varying the diameter of said Ag nanocomposite. For that reason, the size of the AgNP, would have been considered a result effective variable by one having ordinary skill in the art, before the effective filing date of the claimed invention. As such, without showing unexpected results, the size of the AgNP cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the claimed invention, would have optimized, by routine experimentation, the size of the AgNP in the apparatus of modified Akgonullu to obtain the desired λLSPR (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding claim 31, modified Akgonullu does not explicitly disclose the MIP comprises a polymer selected form the group consisting of acrylamide (AA), poly(ethyleneimine),poly(hydroxyethyl methacrylate), poly(vinylpyrrolidone), novolak, poly(4-vinylphenol),poly(4-vinylphenol)-co-(methyl methacrylate), and poly(styrene-co-allyl alcohol).
Abargues teaches a plurality of nanocomposite polymer films suitable for SPR including PEI, PVP, OHEMA, PS6-co-AA4, Novolak, P4VP, and P4VP5-co-MMA5 (Table 1). It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to substitute any one of a plurality of appropriate polymers as the material in the device disclosed by modified Akgonullu, as taught by Abargues, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 34, modified Akgonullu does not explicitly disclose the silver nanoparticles have an average diameter of about 30 nm to about 70 nm.
Abargues (Table 1) teaches that it was known in the art that increasing the diameter of an Ag nanocomposite will increase the λLSPR. Therefore the λLSPR is a variable that can be modified, among others, by varying the diameter of said Ag nanocomposite. For that reason, the size of the AgNP, would have been considered a result effective variable by one having ordinary skill in the art, before the effective filing date of the claimed invention. As such, without showing unexpected results, the size of the AgNP cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the claimed invention, would have optimized, by routine experimentation, the size of the AgNP in the apparatus of modified Akgonullu to obtain the desired λLSPR (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Response to Arguments
Applicant's arguments filed 02/10/2026 have been fully considered but they are not persuasive.
Regarding the Applicant’s arguments directed towards the material properties and the intended mode of operation of the instant claims (see: pg. 8/Section A of Applicant’s Remarks), the recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Since the prior art device comprises the same MIP/AuNP composite having templated binding sites for the same fluorophores as instantly claimed, it is the position of the Examiner that the prior art device would be fully capable of performing the instantly recited functions when operated in such a manner.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references (see: pg. 8-9/Section B of Applicant’s Remarks), the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
In response to applicant’s argument that the proposed modification would change the principle of operation (see: pg. 9-10/Section C of Applicant’s Remarks), the Examiner respectfully disagrees. Sergelen explicitly teaches a plurality of other equivalent metals for use in SPR sensing were well known in the art, including silver and gold. Therefore, while one of ordinary skill would have weighed the different advantages/disadvantages of each of the plurality of material choices, such a modification would not have changed the principle of operation of the SPR sensor.
The Applicant’s remaining arguments rely on the alleged deficiencies addressed above, and are not persuasive for the same reasons.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT J EOM whose telephone number is (571)270-7075. The examiner can normally be reached Monday-Friday (9:00AM-5:00PM).
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/ROBERT J EOM/ Primary Examiner, Art Unit 1797