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 .
Response to Amendment
The Amendment filed 07/16/2026 has been entered. Claims 1, 3-6, 8-21 remain pending in the application. Claims 10-20 are previously withdrawn. Claims 2 and 7 are previously cancelled. Claims 1, 9, and 21 have been amended. Claims 1, 3-6, 8-9, and 21 are examined herein.
Status of Objections and Rejections
The rejection of claims 1, 3-6, and 8 under 35 U.S.C. 103 as being unpatentable over Hungerford as evidenced by Greenspan is withdrawn in view of Applicant's amendment. Claims 9 and 21 are withdrawn based on their dependency of all of the limitations of claim 1.
New grounds of rejection under 35 U.S.C. 103 are necessitated by the amendments.
Response to Arguments
Applicant's arguments, see pages 10-15, filed 07/16/2026, with respect to the rejection of claims 1, 3-6, 8-9, and 21, under 35 U.S.C. 103, have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Claim Interpretation
The claims contain limitations which are directed to intended use or capabilities of the claimed invention. These limitations are only given patentable weight to the extent which effects the structure of the claimed invention. Please see MPEP 2114. Note that functional limitations are emphasized in italics herein.
Claim Rejections - 35 USC § 102
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 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.
Claims 1, 3, 4-6, 8-9, and 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Auty et. al (“Development and application of confocal scanning laser microscopy methods for studying the distribution of fat and protein in selected dairy products”).
Regarding claim 1, Auty teaches an ACQ fluorescence probe composition (“Fluorescent probes and probe mixtures,” which shows a Nile Red and PEG200 mixture; Table 1)(Paragraph [0076] of the instant specification US 20260085262 A1 states that NR in PEG200 is an ACQ fluorescence probe composition used determining the cmc of Supreme Biotechnology (Brilliant White) detergent solution),
characterized in that the ACQ fluorescence probe composition is a probe solution for directly determining a critical micelle concentration (cmc) of a surfactant (Aggregation of renneted micelles occurred during curd formation; Abstract)(Although Auty employs the Nile Red and PEG probe for the localization of fats and proteins in selected food products rather than determining surfactant cmc, the composition nevertheless possesses the same structural characteristics required by the claims and would have been functionally capable of generating a fluorescence response suitable for cmc determination when exposed to surfactant solutions, rendering the recited intended use insufficient to distinguish the claimed composition), and
comprises a probe molecule and an auxiliary agent, and further that the probe molecule is dissolved in the auxiliary agent (Table 1 lists Nile Red with PEG200 as a solvent in a mixture) wherein:
The probe molecule is one kind of fluorescent molecule having an aggregation- caused quenching (ACQ) property with a luminescence strategy based on a change in fluorescence intensity or a change in characteristic wavelength when dissolved in the auxiliary agent and upon micelle formation with the surfactant, selected from the list consisting of: an ACQ molecule with a blue-shifted characteristic wavelength and an ACQ molecule with an unchanged characteristic wavelength but a changed fluorescence intensity,
(The italicized limitation is directed to the behavior of the probe molecule, not to a separate structural feature. Paragraph [0105] states that “more preferred ACQ molecules have…blue-shift characteristics, e.g...Nile red,” while paragraph [0173] explains that “the most preferred probe+auxiliary agent combination in the ACQ fluorescence probe composition…includes…NR+PEG200,” in reference to Fig. 4B as a plot of NR+PEG200 in the presence of a detergent/surfactant solution. Auty discloses NR dissolved in PEG200 at 0.1 mg/mL, which corresponds to the same probe molecule and auxiliary solvent identified in the instant specification, and therefore is capable of exhibiting the italicized limitation as an intrinsic characteristic. Products of identical chemical composition can not have mutually exclusive properties," In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); See MPEP 2112.01.II)(Furthermore, claims 8-9 which depend upon claim 1 lists the probe composition NR-PEG200 as a viable option),
a Hansen solubility parameter (HSP) δ of the probe molecule is 20 (MPa) to 25 (MPa)(Table 2 of the instant specification shows a Hansen solubility parameter (HSP) δ value of 20.385 for Nile Red)(Products of identical chemical composition can not have mutually exclusive properties," In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); See MPEP 2112.01.II).
the auxiliary agent comprises one or more non-volatile organic solvents having a boiling point above 1000C and is soluble or easily soluble in water (Table 3 of the instant specification shows PEG200 to have a volatility/boiling point (°C) of ˃250 and is therefore non-volatile; Table 3 also shows PEG200 to be “easily soluble” in water), and
the concentration of probe molecule in the probe solution is 0.1-2.5 mg/ml (Table 1 shows Nile Red in PEG200 to have a concentration of 0.1 g/l which corresponds to 1 mg/ml),
a Hansen solubility parameter (HSP) distance (Ra) between the probe molecule and the organic solvent is below 17 (MPa)1/2 (Auty discloses NR dissolved in PEG200 at 0.1 mg/mL, which corresponds to the identical probe molecule and auxiliary solvent composition identified in the instant specification, and therefore the claimed Ra value is a property necessarily associated with those compositions, the Ra limitation is considered to be inherently present. “Products of identical chemical composition can not have mutually exclusive properties," In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); See MPEP 2112.01.II)(Furthermore, claims 8-9 which depend upon claim 1 lists the probe composition NR-PEG200 as a viable option).
Regarding claim 3, Auty teaches the ACQ fluorescence probe composition according to claim 1, wherein a solubility classification of the probe molecule in the auxiliary agent is above "soluble" (Auty discloses NR dissolved in PEG200 at 0.1 mg/mL, which corresponds to the identical probe molecule and auxiliary solvent composition identified in the instant specification, and therefore the claimed solubility classification is a property necessarily associated with those compositions, the solubility classification limitation is considered to be inherently present. “Products of identical chemical composition can not have mutually exclusive properties," In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); See MPEP 2112.01.II)(Furthermore, claims 8-9 which depend upon claim 1 lists the probe composition NR-PEG200 as a viable option).
Regarding claim 4, Auty teaches the ACQ fluorescence probe composition according to claim 1, wherein a difference of Hansen solubility parameters (Δδ) between the auxiliary agent and the probe molecule is -3 (MPa)112 to +12 (MPa)12 (Auty discloses NR dissolved in PEG200 at 0.1 mg/mL, which corresponds to the identical probe molecule and auxiliary solvent composition identified in the instant specification, and therefore the claimed difference of Hansen solubility parameters (Δδ) is a property necessarily associated with those compositions, the difference of Hansen solubility parameters (Δδ) limitation is considered to be inherently present. “Products of identical chemical composition can not have mutually exclusive properties," In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); See MPEP 2112.01.II)(Furthermore, claims 8-9 which depend upon claim 1 lists the probe composition NR-PEG200 as a viable option).
Regarding claim 5, Auty teaches the ACQ fluorescence probe composition according to claim 1, wherein a viscosity of the auxiliary agent is below 30 mPa·s and a flash point of the auxiliary agent is above 60°C (Table 3 of the instant specification shows PEG200 to have a viscosity of (22-23) mPa·s and a flash point >100°C).
Regarding claim 6, Auty teaches the ACQ fluorescence probe composition according to claim 1, wherein the auxiliary agent has a solubility of > 1% in water and has a density of 0.9 g/cm3 to 1.2 g/cm3 (Table 3 of the instant specification shows PEG200 to be “easily soluble” in water which corresponds to >1% as indicated below the table and a density of 1.125 g/cm3).
Regarding claim 8, Auty teaches the ACQ fluorescence probe composition according to claim 1 wherein:
the probe molecule is kind of ACQ molecule selected from the group consisting of: curcumin (CUR), Nile red (NR) (Nile Red; Table 1); and
the auxiliary agent comprises one or more kinds of organic solvents selected from the group consisting of: ethylene glycol, N-methylpyrrolidone (NMP), N-ethylpyrrolidone (NEP), dimethylformamide (DMF), diethylene glycol monoethyl ether (DGME), ethyl glycolate, polyethylene glycol 200 (PEG200) (PEG200; Table 1), 1,3-butanediol, and 1,5-pentanediol.
Regarding claim 9, Auty teaches the ACQ fluorescence probe composition according to claim 1, wherein:
the probe molecule is one kind of ACQ molecules selected from the group consisting of: curcumin (CUR), Nile red (NR) )(Nile Red; Table 1), and coumarin (C480).
the auxiliary agent comprises at least one kind of organic solvent selected from the group consisting of: N-ethylpyrrolidone (NEP), polyethylene glycol 200 (PEG200) (PEG200; Table 1), and diethylene glycol monoethyl ether (DGME).
Regarding claim 21, Auty teaches the ACQ fluorescence probe composition according to claim 1, wherein the concentration of probe molecule in the probe solution is below 0.2-1 mg/ml (Table 1 shows Nile Red in PEG200 to have a concentration of 0.1 g/l which corresponds to 1 mg/ml).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Grate et al., 2010 (instant PTO-892) teaches a composition of Nile Red dissolved in PEG200.
Rawal et al., 2023 (instant PTO-892) teaches a composition of Nile Red in PEG200 and Rhodamine B in water.
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.
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/V.S./Examiner, Art Unit 1758
/MATTHEW D KRCHA/Primary Examiner, Art Unit 1796
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