`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`UNITED STATES DEPARTMENT OF COMMERCE
`United States Patent and Trademark Office
`Address: COMMISSIONER FOR PATENTS
`P.O. Box 1450
`Alexandria1 Virginia 22313- 1450
`www.uspto.gov
`
`APPLICATION NO.
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`
`
`
`
` F ING DATE
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`FIRST NAMED INVENTOR
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`ATTORNEY DOCKET NO.
`
`
`
`
`
`CONF {MATION NO.
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`13/646,784
`
`10/08/2012
`
`Masaya TAMURA
`
`MAT—10579US
`
`1082
`
`EXAMINER
`RATNERPRESTIA —
`05/21/2014 —
`7590
`52473
`PO. BOX 980
`MARCSISIN, ELLEN JEAN
`VALLEY FORGE, PA 19482-0980
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`PAPER NUMBER
`
`ART UNIT
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`1678
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`
`
`
`NOT *ICATION DATE
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`DELIVERY MODE
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`05/21/2014
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`ELECTRONIC
`
`Please find below and/or attached an Office communication concerning this application or proceeding.
`
`The time period for reply, if any, is set in the attached communication.
`
`Notice of the Office communication was sent electronically on above—indicated "Notification Date" to the
`following e—mail address(es):
`
`ptocorrespondence @ratnerprestia.c0m
`
`PTOL—90A (Rev. 04/07)
`
`

`

`
`
`Applicant(s)
`Application No.
` 13/646,784 TAMURA ET AL.
`
`Examiner
`Art Unit
`AIA (First Inventor to File)
`Office Action Summary
`
`1678Ellen J. Marcsisin it?“
`
`-- The MAILING DA TE of this communication appears on the cover sheet with the correspondence address --
`Period for Reply
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`A SHORTENED STATUTORY PERIOD FOR REPLY IS SET TO EXPIRE g MONTHS FROM THE MAILING DATE OF
`THIS COMMUNICATION.
`Extensions of time may be available under the provisions of 37 CFR1. 136( a).
`after SIX () MONTHS from the mailing date of this communication.
`If NO period for reply is specified above, the maximum statutory period will apply and will expire SIX (6) MONTHS from the mailing date of this communication.
`-
`- Failure to reply within the set or extended period for reply will, by statute, cause the application to become ABANDONED (35 U.S.C. § 133).
`Any reply received by the Office later than three months after the mailing date of this communication, even if timely filed, may reduce any
`earned patent term adjustment. See 37 CFR 1 .704(b).
`
`In no event, however, may a reply be timely filed
`
`Status
`
`1)IZI Responsive to communication(s) filed on 12/23/2013.
`El A declaration(s)/affidavit(s) under 37 CFR 1.130(b) was/were filed on
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`2b)|ZI This action is non-final.
`2a)|:l This action is FINAL.
`3)I:I An election was made by the applicant in response to a restriction requirement set forth during the interview on
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`; the restriction requirement and election have been incorporated into this action.
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`4)|:| Since this application is in condition for allowance except for formal matters, prosecution as to the merits is
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`closed in accordance with the practice under Exparte Quay/e, 1935 CD. 11, 453 O.G. 213.
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`Disposition of Claims*
`
`5)IZI Claim(s) fl) is/are pending in the application.
`5a) Of the above claim(s)
`is/are withdrawn from consideration.
`
`is/are allowed.
`6)I:I Claim(s)
`7)|Z| CIaim(s)_1-20 is/are rejected.
`8)|Z| Claim(s) 1and 17-19 is/are objected to.
`
`
`are subject to restriction and/or election requirement.
`9)I:I Claim((s)
`* If any claims have been determined allowable, you may be eligible to benefit from the Patent Prosecution Highway program at a
`
`participating intellectual property office for the corresponding application. For more information, please see
`
`
`
`:/'I’\WIIW.LIsnto. ovI’ atentS/init events/
`hI/index.‘s orsend an inquiryto PPI-iieedback{®usgtc.00v.
`
`hit
`
`Application Papers
`
`10)I:l The specification is objected to by the Examiner.
`11)|Xl The drawing(s) filed on 10/08/2012 is/are: a)IXI accepted or b)|:l objected to by the Examiner.
`Applicant may not request that any objection to the drawing(s) be held in abeyance. See 37 CFR 1.85(a).
`
`Replacement drawing sheet(s) including the correction is required if the drawing(s) is objected to. See 37 CFR 1.121 (d).
`
`Priority under 35 U.S.C. § 119
`
`12)IXI Acknowledgment is made of a claim for foreign priority under 35 U.S.C. § 119(a)-(d) or (f).
`Certified copies:
`
`a)IZl All
`
`b)|:l Some” c)I:l None of the:
`
`1.I:I Certified copies of the priority documents have been received.
`2.|:l Certified copies of the priority documents have been received in Application No.
`SIXI Copies of the certified copies of the priority documents have been received in this National Stage
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`application from the International Bureau (PCT Rule 17.2(a)).
`** See the attached detailed Office action for a list of the certified copies not received.
`
`Attachment(s)
`
`
`
`3) D Interview Summary (PTO-413)
`1) E Notice of References Cited (PTO-892)
`Paper No(s)/Mai| Date.
`.
`.
`4) I:I Other'
`2) I] InformatIon DIsclosure Statement(s) (PTO/SB/08a and/or PTO/SB/08b)
`Paper No(s)/Mai| Date
`US. Patent and Trademark Office
`PTOL—326 (Rev. 11-13)
`
`Office Action Summary
`
`Part of Paper No./Mai| Date 20140507
`
`

`

`Application/Control Number: 13/646,784
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`Page 2
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`Art Unit: 1678
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`DETAILED ACTION
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`1.
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`The present application is being examined under the pre—AIA first to invent provisions.
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`Continued Examination Under 37 CFR 1.114
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`2.
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`A request for continued examination under 37 CFR 1.114, including the fee set forth in
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`37 CFR 1.17(e), was filed in this application after final rejection. Since this application is
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`eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR l.l7(e)
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`has been timely paid, the finality of the preVious Office action has been withdrawn pursuant to
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`37 CFR 1.114. Applicant's submission filed on 12/23/2013 has been entered.
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`Claim 1—20 are pending, claims 1, 8, 15 and 16 have been amended, claims 17—20 are
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`newly added.
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`Priority
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`3.
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`The instant application is a continuation in part of PCT/JP2011/002567, filed on
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`05/09/2011. Acknowledgment is made of the claim of foreign priority to application No. 2010—
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`10980, filed 05/12/2010 in Japan.
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`Claim Objections
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`4.
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`Claims 1 and 17—19 is objected to because of the following informalities: There appears
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`to be a typographical error in claims 1; "m is an integer not smaller than and one", it appears as
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`though it should read "m is an integer not smaller than one" without the "and". Appropriate
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`correction is required.
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`

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`Application/Control Number: 13/646,784
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`Page 3
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`Art Unit: 1678
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`5.
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`Claims 17—19 recite “adsorbed to at least one below of the first...and above of the
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`second...”. As recited, it is unclear exactly what the "one" refers to with regard to what the
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`capture bodies are physically adsorbed to. It appears that a noun is missing before “below”.
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`Claim Rejections - 35 USC § 103
`
`The following is a quotation of pre—AIA 35 USC. 103(a) which forms the basis for all
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`obviousness rejections set forth in this Office action:
`
`(a) A patent may not be obtained though the invention is not identically disclosed
`or described as set forth in section 102 of this title, if the differences between the
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`subject matter sought to be patented and the prior art are such that the subject
`matter as a whole would have been obvious at the time the invention was made to
`
`a person having ordinary skill in the art to which said subject matter pertains.
`Patentability shall not be negatived by the manner in which the invention was
`made.
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`This application currently names joint inventors. In considering patentability of the
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`claims under pre—AIA 35 USC. 103(a), the examiner presumes that the subject matter of the
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`various claims was commonly owned at the time any inventions covered therein were made
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`absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to
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`point out the inventor and invention dates of each claim that was not commonly owned at the
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`time a later invention was made in order for the examiner to consider the applicability of pre—
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`AIA 35 USC. 103(c) and potential pre—AIA 35 USC. 102(e), (f) or (g) prior art under pre—AIA
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`35 USC. 103(a).
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`6.
`
`Claims 1, 6 and 7 are rejected under pre—AIA 35 USC. 103(a) as being unpatentable
`
`over Song et al. PG Pub No. U82010/0097611A1 in view of Wang et al. PG Pub No.
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`USZOO7/0252982.
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`

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`Application/Control Number: 13/646,784
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`Page 4
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`Art Unit: 1678
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`Song et al. teach a long range surface plasmon optical waveguide sensor (see e.g. abstract
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`and entire document) which meets the structural limitations of the claims as described, see e.g.
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`para [0011], in that the sensor comprises a metal thin film and a metal strip such that each are
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`spaced apart by a predetermined interval, also comprising a channel in between so the metal
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`surfaces interface with the channel. Specifically see e.g. Figure 5, and also paras [0039]—[0040],
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`Figure 5 embodiment 113 is the metal thin film, 115 indicates the metal strip, 117 is the channel
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`(i.e. hollow region). The sensor of Song et al. is used with an electromagnetic wave source; see
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`e. g. para [0064], halogen lamp, light emitting diode, laser or the like. The metal strip generates a
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`surface plasmon between the metal layers. The sensor is equipped with a detector that
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`quantitatively or qualitatively measures the change of wavelength propagating by the specimen
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`(i.e. wave generated in the channel where specimen is) (see also specifically para [0070],
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`measure a change of wavelength, change of mode size, change of intensity, etc.). See para
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`[0073], Song et al. also specifically teach that both the metal thin film and the metal strip are
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`sufficiently constrained by the long range surface plasmon to thereby propagate an
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`electromagnetic wave (i.e. propagate along the channel).
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`Furthermore, Song et al. teaches that analyte capturing bodies may be physically
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`adsorbed between the metal layers, see specifically para [0059]. The reference further teaches
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`that the sensor may be used as immunosensor, wherein biological material such as an antibody
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`(i.e. an analyte capturing body) is immobilized (i.e. adsorbed) on the exposed one side surface of
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`the metal strip. Also Song et al. teach at para [0075] that it is possible to fabricate a sensor of
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`various sizes such as small—sized or light—weight systems.
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`Page 5
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`Art Unit: 1678
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`Song et al. does not explicitly teach wherein the distance between the first metal layer
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`and the second metal layer is substantially equal to (1/2) x 9» x m, where 9» is a wavelength of the
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`electromagnetic wave in the hollow space produced by the electromagnetic wave source and m is
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`an integer not small than one; and does not specifically teach a first electromagnetic wave
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`generated from the first metal layer by the electromagnetic wave propagating in the hollow
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`region and a second electromagnetic wave generated from the second metal layer by the
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`electromagnetic wave propagating in the hollow region are capable of generating an
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`electromagnetic field intensity distribution on an "m" order mode between the first and second
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`metal layers.
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`Wang et al. teach Raman signal enhancing structures coupled to tunable resonant cavity
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`(see e.g. page 3, para [0023], page 4, para [0051]), the tunable resonant cavity comprising two
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`reflective members and an electro—optical material. At page 5, para [0062, Wang teach an
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`effective length of the resonant cavity may be defined as L separating the major surfaces of the
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`reflective members (refer to Fig. 2B, embodiment L). Importantly (and instantly relevant), Wang
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`et al. teach at para [0062], if the effective length is not equal to an integer multiple of one half of
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`the wavelength of the reflecting electromagnetic radiation (the wavelength of the resonating
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`light), then the rays reflecting back and forth between the reflective members may interfere
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`destructively. If the effective length is equal to an integer multiple of one half of the wavelength
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`of the propagating light, the rays may interfere constructively, thereby increasing the intensity
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`and power of the electromagnetic radiation within the cavity. Note that although Wang et al. here
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`discuss Raman signaling, the reference makes clear that the resonance at issue is surface plasmon
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`resonance (see e.g. paras [0047] and [0060]).
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`Page 6
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`Art Unit: 1678
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`It would have been primafacie obvious to one of ordinary skill in the art, at the time of
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`the invention, to have fabricated the plasmon sensor as taught by Song et al. so as to have a
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`hollow space (i.e. channel space) between two reflective members with a distance equal to (l/2)
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`x 9» x m, where 9» is a wavelength of the resonating wave in the space and m is an integer not
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`smaller than 1, as taught by Wang et al.,
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`thereby arriving at the claimed invention, because
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`Wang et al. specifically taught that if the space between two reflective members is not equal to
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`said equation, where the variable m is an integer value, destructive interference may occur. It
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`would be obvious to avoid a distance that would result in destructive interference because there
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`would be no signal to detect, as the reflected beams would cancel each other out. Rather the
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`ordinarily skilled artisan would be motivated to provide a distance equal to said equation, using
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`an integer value of m because the beams would be expected to constructively interfere, causing
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`an increased intensity for detection.
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`The ordinarily skilled artisan would have a reasonable expectation of success modifying
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`the plasmon sensor of Song et al. so that the space between the reflective planes would be equal
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`the equation of Wang et al. because one would recognize that both inventions are analogous (i.e.
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`the tunable cavity of Wang et al. and the plasmon sensor channel of Song et al.) with respect to
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`the propagation of a wave through a space created by two reflective planes, and therefore the
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`distance would necessarily have to be set so as to avoid destructive interference. The ordinarily
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`skilled artisan would further reasonably expect success because, as discussed above, Song et al.
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`specifically teach distancing the metal layers sufficiently to thereby propagate an
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`electromagnetic wave (para [0073] as discussed above), and also teach at para [0075] that it is
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`possible to fabricate a sensor of various sizes such as small—sized or light—weight systems.
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`Application/Control Number: 13/646,784
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`Page 7
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`Art Unit: 1678
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`Furthermore, in taking into consideration the teachings of Wang et al., that said distance
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`is necessary in order to establish constructive interference (i.e. produce a signal versus
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`destructive, resulting in no signal), it would be further obvious to the ordinarily skilled artisan to
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`arrive at the distance as described by said equation as a matter of routine experimentation in
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`order to establish an optimal distance for achieving measurable signal (i.e. a distance that would
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`not cause the propagating light to destructively interfere). Where the general conditions of a
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`claim are disclosed in the prior art, it is not inventive to discover and optimum or workable
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`ranges by routine experimentation, (see MPEP 2144.05). The distance between the metal layers
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`is considered to be a result effective variable, impacting whether a signal is produced as a result
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`of constructive interference by resonating radiation in the space. One would be motivated to set a
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`distance in order to assure one is obtaining a measurable signal from the sensor at the detector.
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`The important factor for the distance is that it meets the requirements recognized in the prior art
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`for establishing constructive interference in a resonating cavity or space. Absent evidence of
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`criticality, it would have been obvious to establish a distance as described out of the course of
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`routine optimization, by optimizing within the prior art conditions in order to achieve a signal.
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`Additionally, regarding the recitation of a first electromagnetic wave generated from the
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`first metal layer by the electromagnetic wave propagating in the hollow region and a second
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`electromagnetic wave generated from the second metal layer by the electromagnetic wave
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`propagating in the hollow region are capable of generating an electromagnetic field intensity
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`distribution on an "m" order mode between the first and second metal layers, such a limitation is
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`directed to the intended use of the sensor.
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`

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`Application/Control Number: 13/646,784
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`Page 8
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`Art Unit: 1678
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`Applicant is reminded that a recitation of the intended use of the claimed invention must
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`result in a structural difference between the claimed invention and the prior art in order to
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`patentably distinguish the claimed invention from the prior art. If the prior art structure is capable
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`of performing the intended use, then it meets the claim.
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`In this case, the limitation would be expected to necessarily follow with the device as
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`described by the combination of Song et al. and Wang et al. because the structural limitations of
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`the device are addressed as described. The immediate limitations do not add anything to the
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`device beyond describing the effect/result that would occur upon exposing the sensor to
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`electromagnetic radiation, which is already addressed by the prior art as discussed in detail
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`above. The sensor as taught by Song et al. and Wang et al. teach all the structural
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`components/elements of the sensor, and therefore it is presumed that upon implementing the
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`sensor, it would necessarily follow that a first electromagnetic wave generated from the first
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`metal layer by the electromagnetic wave propagating in the hollow region and a second
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`electromagnetic wave generated from the second metal layer by the electromagnetic wave
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`propagating in the hollow region are capable of generating an electromagnetic field intensity
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`distribution on an "m" order mode between the first and second metal layers. See also MPEP
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`21 12.
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`Regarding claim 6, Song et al. teach at para [0059] antibody immobilized on the exposed
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`one side surface of the metal strip 115; thereby Song et al. teach antibodies on one side of the
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`hollow cavity. This statement suggests that antibodies are present only one metallic surface;
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`thereby indicating an uneven density distribution of the antibodies.
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`Page 9
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`Art Unit: 1678
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`Regarding claim 7, Song et al. teach at para [0074], to be analyzed specimen is injected
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`into the sensor through the channel 117 and comes into close contact with or is adsorbed onto the
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`metal strip; thereby indicating there is necessarily an opening (i.e. a specimen insertion section)
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`in which specimen is injected into the channel containing the capturing bodies. The teaching
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`describes upon insertion, the to—be—analyzed specimen comes in contact with capturing bodies,
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`thereby indicating after insertion (i.e. analyte capturing bodies not disposed in the insertion
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`section/opening, but in the channel).
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`7.
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`Claims 2—3 and 5 are rejected under pre—AIA 35 U.S.C. 103(a) as being unpatentable over
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`Song et al. in view of Wang et al. as applied to claim 1 above, and further in view of Lyon et al.,
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`J. Phys. Chem. B, 103 (1999), p. 5826—5831.
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`Song et al. and Wang et al. are as discussed in detail above, teaching a plasmon sensor
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`device substantially as claimed, but which fail to specifically teach wherein particles are
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`disposed between the first and second metal layers, and that the analyte capturing bodies are
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`chemically adsorbed to the surfaces of the particles.
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`Lyon et al. (1999) teach throughout the document and at page 5826, col. 1—2, para [1] the
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`use of an antibody and a gold particle joined together, investigating the influence of the
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`conjugate pair on surface plasmon resonance and its ability to amplify a sensor's biosensing
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`ability. Specifically, Lyon et al. refer to reports that indicate amplified biosensing where large
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`particles are coupled to biomolecules, causing large refractive indeX shifts during bimolecular
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`recognitions events; and also Lyon et al. teach reporting a similar approach wherein colloidal
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`gold was employed as the biocompatible tag for a sandwich immunoassay. Lyon et al. teach
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`Page 10
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`there was a greater than 20—fold increase in plasmon angle shift over the observed assay that
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`employed an unlabeled antibody. The gold particles are disposed on the gold thin film surface,
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`e.g. page 5827, Fig. 1. Furthermore, at page 5826, col. 2, para 1, Lyon et al. teach that colloidal
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`particles pose excellent tags for the determination of extremely low quantities of analyte that are
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`not routinely observable using traditional assay methods. Also, at page 5826, col. 2 para 1, Lyon
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`et al. teach that their results demonstrate that by using colloidal gold particles in a sensing
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`device, one provides the potential for significant improvement in the sensitivity and dynamic
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`range of colloidal gold amplified bio—sensing, which is based on the size of the particle.
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`It would have been primafacie obvious to one of ordinary skill in the art, at the time of
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`the invention to have used a conjugate metal antibody pair, disposed on a metallic thin film, as
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`taught by Lyon et al., when constructing the plasmon sensor of Song et al. and Wang et al.
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`because Lyon et al. taught that colloidal gold particle/antibody conjugate pairs perform as
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`excellent signal enhancement of up to a greater than 20—fold increase in plasmon angle shift over
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`the observed assay that employed an unlabeled antibody; and further because Lyon et al. taught
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`that colloidal particles pose excellent tags for the determination of extremely low quantities of
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`analyte that are not routinely observable using traditional assay methods. Additionally, the
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`ordinarily skilled artisan would have been motivated to perform said modification because Lyon
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`et al. taught that by using colloidal gold particles in a sensing device, one provides the potential
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`for significant improvement in the sensitivity and dynamic range of colloidal gold amplified
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`biosensing. It would therefore have been obvious to improve an apparatus described by the
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`combination of Song et al. and Wang et al. in a similar manner by using the colloidal gold
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`metallic particles of Lyon et al. because said modification would not be expected to change the
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`Page ll
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`device so as to alter the way it is used, but rather would be expected to improve the detection
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`capabilities of the device.
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`Regarding claim 3, as discussed above, Lyon et al. teaches wherein the particle is made
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`of metal (i.e. gold).
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`Regarding claim 5, as discussed in the analysis above, Lyon et al. addresses wherein the
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`gold colloidal particle is considered to be an additive physically adsorbed together with the
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`analyte capturing body (i.e. antibody). As discussed above, it would be obvious to use colloidal
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`gold to enhance detection.
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`8.
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`Claim 4 is rejected under pre—AIA 35 U.S.C. 103(a) as being unpatentable over Song et
`
`al., in view of Wang et al. and Lyon et al. as applied to claim 2 above, and further in view of
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`Yamaguchi et al., Top. Curr. Chem., 288, (2003), p. 237—258.
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`Song et al., Wang et al. and Lyon et al. are as discussed in detail above, teaching a
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`plasmon sensor substantially as claimed, but which fail to specifically teach wherein the particles
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`are dendrimer.
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`Yamaguchi et al. (2003), at page 254, para 2, teach that antibody biosensor technique
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`based on surface plasmon resonance using antibody dendrimer, allows an advantageous
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`amplification of the detection of signals for antigens. At page 254, para 2, Yamaguchi et al. teach
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`that antibody dendrimer produces an increased signal intensity over the signal of just one
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`antibody alone. Additionally at page 240, para 2, Yamaguchi et al. teach that surface plasmon
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`resonance response reflects a change in mass concentration at the detector surface as molecules
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`bind or dissociate and the specific sensing of substrates with low molecular weight is difficult,
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`Page 12
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`therefore functional molecules with high molecular weight (e. g. antibody dendrimers) have a
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`great potential for amplification.
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`It would have been primafacie obvious to one of ordinary skill in the art, at the time of
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`the invention, to have used antibody dendrimer (i.e. dendrimer particles), as taught by
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`Yamaguchi et al., to modify the plasmon sensor as taught by the combination of Song et al.,
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`Wang et al. and Lyon et al., to arrive at the claimed invention because Yamaguchi et al.
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`specifically teach that particles made of antibody dendrimer are advantageous for surface
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`plasmon resonance, specifically that antibody dendrimer allows amplification of detected signal.
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`It would be obvious to amplify signal of an apparatus used for detection, thereby improving the
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`performance of the apparatus. Furthermore, the ordinarily skilled artisan would be motivated to
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`use antibody dendrimer to modify Song et al., and achieve amplification of signal, because Song
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`et al. it is possible to make the devices of their invention small and light—weight, the ordinarily
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`skilled artisan appreciating that a small device would utilize minimal sample (i.e. low
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`concentrations). It would be therefore obvious to use known methods to amplify the low
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`concentration signal. The ordinarily skilled artisan would reasonably expect success because the
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`choice of particle would only enhance the performance of the sensor, and not change or interfere
`
`with its mode of operation.
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`9.
`
`Claim 17 is rejected under pre—AIA 35 U.S.C. 103(a) as being unpatentable over Song et
`
`al. in view of Wang et al. as applied to claim 1 above, and further in view of Cohen et al. PG Pub
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`No. 2002/0196435A1.
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`

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`Application/Control Number: 13/646,784
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`Page 13
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`Art Unit: 1678
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`Song et al. and Wang et al. are as discussed in detail above, teaching a plasmon sensor
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`substantially as claimed, but which fail to specifically teach wherein the analyte capturing bodies
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`desorb when the hollow region is filled with specimen.
`
`Cohen et al. teach a microfluidic assay device comprising microfluidic circuitry (i.e.
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`hollow cavities, referred to as chambers, which appear to be channels/paths) (see e. g. entire
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`document and Figure 1), wherein the channel of the device are directly observed by optical
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`reader (see e.g. para [0060], i.e. optically scanning a chamber of said device to observe
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`reaction/assay). See e.g. para [0074] Cohen et al. teach biological reaction occurs in an entry
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`chamber (i.e. cavity) of the device. Specifically at para [0075] Cohen et al. teach assay reagent or
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`bioactive agent may include freeze dried material, which may for example be freeze dried in the
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`entry chamber; that said material may dissolve upon interaction with sample or specimen. At
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`para [0075] Cohen et al. teach an advantage to providing freeze—dried material in an assay device
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`is that the device need not be removed from a reader, that no extra step is necessary solely for the
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`purpose of introducing assay reagent or bioactive material. Furthermore, that another advantage
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`is that by using freeze—dried material, refrigeration and other preservation is not always needed,
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`making devices amenable to remote or resource—deprived locations or other places where
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`preservation would be difficult or impossible. At para [0127] for example, Cohen et al. teach
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`antibody may be a freeze—dried reagent (see also paras [0076]—[0077] and [0127], regarding
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`antibody as the freeze dried assay reagent/bioactive agent).
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`Although Song et al. is silent with respect to whether or not the antibodies are desorbed
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`from the hollow cavity upon addition of sample, it would have been prima facie obvious to one
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`of ordinary skill in the art, at the time of the invention, to provide antibody reagent in freeze—
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`dried form, as taught by Cohen et al., for the surface plasmon device as taught by the
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`combination of Song et al. and Wang et al., because Cohen et al. teach that by freeze drying
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`reagent (said reagent thereby being mobilizable upon addition of sample or specimen) one is able
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`to supply the reagent as part of the device, without the need for refrigeration or preservation of
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`reagent, thereby eliminating a step of reagent addition at the time of assay, and further making
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`the device amenable to remove locations or locations where preservation may not be an option.
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`The ordinarily skilled artisan would appreciate that by freeze drying capture bodies to said
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`device as part of the device one is making the device more versatile for the reasons as
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`immediately provided. The ordinarily skilled artisan would reasonably expect success in doing
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`so because Cohen et al. teach the ability to freeze—dry capture bodies (i.e. antibodies) and further
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`because like a surface plasmon sensor as described, the device of Cohen et al. teach fluidic
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`chambers/channels containing said pre—loaded reagent. One would be expected to similarly be
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`able to freeze—dry reagent into a hollow cavity of a plasmon sensor.
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`10.
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`Claim 8—10 and 12—14 are rejected under pre—AIA 35 U.S.C. 103(a) as being unpatentable
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`over Song et al. in view of Wang et al. and Lyon et al.
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`Song et al. teach a surface plasmon sensor as previously discussed above (for a complete
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`discussion of the teachings of Song et al., refer above to the rejection of claim 1).
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`Song et al. does not explicitly teach wherein the distance between the first metal layer
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`and the second metal layer is substantially equal to (1/2) x 9» x m, where 9» is a wavelength of the
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`electromagnetic wave in the hollow space produced by the electromagnetic wave source and m is
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`an integer not small than one; does not specifically teach a first electromagnetic wave generated
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`from the first metal layer by the electromagnetic wave propagating in the hollow region and a
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`second electromagnetic wave generated from the second metal layer by the electromagnetic
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`wave propagating in the hollow region are capable of generating an electromagnetic field
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`intensity distribution on an "m" order mode between the first and second metal layers; and
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`furthermore Song et al. is silent with respect to a teaching wherein the analyte capturing bodies
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`are “not oriented”, as recited in instant claim 8.
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`Wang et al. is included with regard to teaching the necessary distance of a hollow cavity
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`between to reflective members (for a complete discussion of the teachings of Wang et al., refer to
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`rejection of claim 1 above).
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`Lyon et al. (1999) is as previously discussed, teaching the use of an antibody and a gold
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`particle joined together, investigating the influence of the conjugate pair on surface plasmon
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`resonance and its ability to amplify a sensor's biosensing ability. Providing an antibody on a
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`particle (as in Lyon et al.) is interpreted to mean that the antibody would not be oriented because
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`of the spherical nature of particles as well as due to the fact that being immobilized to particles
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`rather than directly onto the sensor surface, the antibodies would exhibit various different
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`orientations rather than all being oriented in a two—dimensional array.
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`It would have been primafacie obvious to one of ordinary skill in the art, at the time of
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`the invention, to have used a hollow space (i.e. channel space) between two reflective members
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`with a distance equal to (1/2) x 9» x m, where 9» is a wavelength of the resonating wave in the
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`space and m is an integer not smaller than 1, as taught by Wang et al., when constructing the
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`plasmon sensor of Song et al., because Wang et al. specifically teach that if the space between
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`two reflective members is not equal to said equation, where the variable m is an integer value,
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`destructive interference may occur. It would be obvious to avoid a distance that would result in
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`destructive interference because there would be no signal to detect, as the reflected beams would
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`cancel each other out. Rather the ordinarily skilled artisan would be motivated to provide a
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`distance equal to said equation, using an integer value of m because the beams would be
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`expected to constructively interfere, causing an increased intensity for detection. The ordinarily
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`skilled artisan would have a reasonable expectation of success modifying the plasmon sensor of
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`Song et al. so that the space between the reflective planes would be equal the equation of Wang
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`et al. because one would recognize that both inventions are analogous (i.e. the tunable cavity of
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`Wang et al. and the plasmon sensor of Song et al.) with respect to the propagation of a wave
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`through a space created by two reflective planes, and therefore the distance would necessarily
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`have to be set so as to avoid destructive interfere