Patent Application 15525110 - CULTURE PEEL PLATE

Title: CULTURE PEEL PLATE

Application Information

Invention Title: CULTURE PEEL PLATE
Application Number: 15525110
Submission Date: 2025-04-08T00:00:00.000Z
Effective Filing Date: 2017-05-08T00:00:00.000Z
Filing Date: 2018-10-08T00:00:00.000Z
National Class: 435
National Sub-Class: 305400
Examiner Employee Number: 88840
Art Unit: 1799
Tech Center: 1700

Rejection Summary

102 Rejections: 2
103 Rejections: 2

Cited Patents

The following patents were cited in the rejection:

US 0239200🔗
US 0150501🔗

Office Action Text

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 .
Notes
All the objections and rejections in the previous Office Action not reiterated herein have been withdrawn.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.

Claim(s) 1, 4-5, 7-8 and 11-20 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Skiffington et al. (US 10,988,720; hereinafter “Skiffington”).
The applied reference has a common inventor with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Regarding claim 1, Skiffington discloses a peel plate for enumerating a microorganism, when present, in a sample, said peel plate comprising: a. a recessed well having a sunken wall protruding from an upper face and having a culture medium dried media culture disc (FIGS. 1-2 and 4: col. 4, line 57 to col. 5, line 39); b. a pair of opposing proximate extensions adjacent said recessed well and spaced between an access indent, wherein at least one of said proximate extensions includes a raised proximate tab adapted to align multiple plates in a layered position (FIGS. 1-2: col. 4, line 57 to col. 5, line 30); c. a distal raised platform adjacent said recessed well and having a width adapted to support at least one user’s finger, and wherein said recessed well being spaced between said distal raised platform and said proximate extensions (FIGS. 1-2 and 4: col. 3, ll. 62-66, col. 4, line 57 to col. 5, line 30); and d. a resealable, removeable cover seal having a first end fixedly secured adjacent said raised platform and a second removable end adapted to removably enclose said recessed well, and wherein said cover seal includes a peel tab removably secured to a proximate end of said plate (FIGS. 7-8, col. 5, ll. 52-60, col. 6, ll. 13-19), and wherein said peel plate adapted to enumerate said microorganism, when present (col. 4, ll. 19-20).
Furthermore, it is noted that the recitations of functional language "for enumerating live heterotrophic bacteria, when present, in a water sample; and, adapted to enumerate said microorganism, when present" are drawn to intended use of the claimed invention. It is noted that a recitation directed to the manner in which a claimed apparatus is intended to be used does not distinguish the claimed apparatus from the prior art, if the prior art has the capability to so perform. Apparatus claims must distinguish from the prior art in terms of structure rather than function (see MPEP 2114). It is further 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 § 2115. The prior art discloses all of the structural features of the claimed plate and thus since the structure is the same, the claimed functions are apparent.
Regarding claim 4, Skiffington further discloses wherein said recessed well being aligned below and parallel to an upper face of said plate and includes a grid (col. 3, ll. 7-10).
Regarding claim 5, Skiffington further discloses wherein said grid being visible for colony counting after said sample has absorbed and diffused (col. 3, ll. 10-13).
Regarding claim 7, Skiffington further discloses wherein said proximate extensions each include a rounded corner entry to said access indent (col. 3, ll. 14-16).
Regarding claim 8, Skiffington further discloses wherein said distal raised platform spans about a length of a diameter of said recessed well (col. 3, ll. 18-19).
Regarding claim 11, Skiffington further discloses wherein said dried media culture disc comprises a bacterial nutritive ingredient (col. 3, ll. 25-26).
Regarding claim 12, Skiffington further discloses wherein said dried media culture disc comprises a growth indicator color-developing agent (col. 3, ll. 27-28).
Regarding claim 13, Skiffington further discloses wherein said color-developing agent is selected from the group consisting of triphenyltetrazolium chloride, 3-(p-iodophenyl)-2-(p- nitrophenyl)-5-phenyl-2H-tetrazolium chloride, 3-(4,5-dimethyl-2-thiazolyl)-2 ,5-diphenyl-2H- tetrazolium bromide, 5-bromo-3-indolyl-beta.-D-galactoside, bromothymol blue, and neutral red (col. 3, ll. 28-33).
Regarding claim 14, Skiffington further discloses wherein said dried media culture disc comprises a plate count agar or plate count agar individual components (col. 3, ll. 33-34).
Regarding claim 15, Skiffington further discloses wherein said dried media culture disc comprises a yeast and mold growth media (col. 3, ll. 35-36).
Regarding claim 16, Skiffington further discloses wherein said dried media culture disc comprises a bacterial nutritive ingredient selective medium for growth of indicator organisms (col. 3, ll. 37-39).
Regarding claim 17, Skiffington further discloses wherein said bacterial nutritive ingredient comprises selective growth agents for coliform, E. coli, enterbacteriaceae, or pathogens (col. 3, ll. 39-41).
Regarding claim 18, Skiffington further discloses wherein said bacterial nutritive ingredient comprises selective growth agents for salmonella, listeria, or camphlobacter (col. 3, ll. 41-43).
Regarding claim 19, Skiffington further discloses wherein said dried media culture disc comprises at least one of an organic solvent (col. 3, ll. 44-45) and enhancer (col. 3, ll. 46-48).
Regarding claim 20, Skiffington discloses all of the structural features of the claimed peel plate and thus considered to meet the limitation “a limit of detection being one colony forming unit per millimeter of said water sample.” Furthermore, the bacterial and water sample are material worked on and not elements of the claimed peel plate. It is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim.
Therefore, Skiffington meets and anticipates the limitations set forth in claims 1, 4-5, 7-8 and 11-20.
Claim(s) 1, 4-5, 7-8 and 11-20 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Skiffington et al. (US 10,407,654; hereinafter “‘654”).
The applied reference has a common assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Regarding claim 1, ‘654 discloses a peel plate for enumerating a microorganism, when present, in a sample, said peel plate comprising: a. a recessed well having a sunken wall protruding from an upper face and having a culture medium dried media culture disc (FIGS. 1-2 and 4: col. 6, ll. 17-65); b. a pair of opposing proximate extensions adjacent said recessed well and spaced between an access indent, wherein at least one of said proximate extensions includes a raised proximate tab adapted to align multiple plates in a layered position (FIGS. 1-2 and 4: col. 6, ll. 17-65); c. a distal raised platform adjacent said recessed well and having a width adapted to support at least one user’s finger, and wherein said recessed well being spaced between said distal raised platform and said proximate extensions (FIGS. 1-2 and 4: col. 4, ll. 15-17, col. 6, ll. 56-61); and d. a resealable, removeable cover seal having a first end fixedly secured adjacent said raised platform and a second removable end adapted to removably enclose said recessed well, and wherein said cover seal includes a peel tab removably secured to a proximate end of said plate (FIGS. 1-2 and 4, col. 4, ll. 31-37, col. 8, ll. 18-19), and wherein said peel plate adapted to enumerate said microorganism, when present (col. 4, ll. 37-39). Furthermore, it is noted that the recitations of functional language "for enumerating live heterotrophic bacteria, when present, in a water sample; and, adapted to enumerate said microorganism, when present" are drawn to intended use of the claimed invention. It is noted that a recitation directed to the manner in which a claimed apparatus is intended to be used does not distinguish the claimed apparatus from the prior art, if the prior art has the capability to so perform. Apparatus claims must distinguish from the prior art in terms of structure rather than function (see MPEP 2114). It is further 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 § 2115. The prior art discloses all of the structural features of the claimed plate and thus since the structure is the same, the claimed functions are apparent.
Regarding claim 4, ‘654 further discloses wherein said recessed well being aligned below and parallel to an upper face of said plate and includes a grid (col. 3, ll. 26-27).
Regarding claim 5, ‘654 further discloses wherein said grid being visible for colony counting after said sample has absorbed and diffused (col. 3, ll. 27-30).
Regarding claim 7, ‘654 further discloses wherein said proximate extensions each include a rounded corner entry to said access indent (col. 3, ll. 32-33).
Regarding claim 8, ‘654 further discloses wherein said distal raised platform spans about a length of a diameter of said recessed well (col. 3, ll. 36-37).
Regarding claim 11, ‘654 further discloses wherein said dried media culture disc comprises a bacterial nutritive ingredient (col. 3, ll. 43-44).
Regarding claim 12, ‘654 further discloses wherein said dried media culture disc comprises a growth indicator color-developing agent (col. 3, ll. 45-46).
Regarding claim 13, ‘654 further discloses wherein said color-developing agent is selected from the group consisting of triphenyltetrazolium chloride, 3-(p-iodophenyl)-2-(p- nitrophenyl)-5-phenyl-2H-tetrazolium chloride, 3-(4,5-dimethyl-2-thiazolyl)-2 ,5-diphenyl-2H- tetrazolium bromide, 5-bromo-3-indolyl-beta.-D-galactoside, bromothymol blue, and neutral red (col. 3, ll. 46-51).
Regarding claim 14, ‘654 further discloses wherein said dried media culture disc comprises a plate count agar or plate count agar individual components (col. 3, ll. 51-53).
Regarding claim 15, ‘654 further discloses wherein said dried media culture disc comprises a yeast and mold growth media (col. 3, ll. 53-54).
Regarding claim 16, ‘654 further discloses wherein said dried media culture disc comprises a bacterial nutritive ingredient selective medium for growth of indicator organisms (col. 3, ll. 55-57).
Regarding claim 17, ‘654 further discloses wherein said bacterial nutritive ingredient comprises selective growth agents for coliform, E. coli, enterbacteriaceae, or pathogens (col. 3, ll. 57-58).
Regarding claim 18, ‘654 further discloses wherein said bacterial nutritive ingredient comprises selective growth agents for salmonella, listeria, or camphlobacter (col. 3, ll. 59-61).
Regarding claim 19, ‘654 further discloses wherein said dried media culture disc comprises at least one of an organic solvent (col. 3, ll. 62-63) and an enhancer (col. 3, ll. 65-66).
Regarding claim 20, ‘654 discloses all of the structural features of the claimed peel plate and thus considered to meet the limitation “a limit of detection being one colony forming unit per millimeter of said water sample.” Furthermore, the bacterial and water sample are material worked on and not elements of the claimed peel plate. It is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim.
Therefore, ‘654 meets and anticipates the limitations set forth in claims 1, 4-5, 7-8 and 11-20.

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 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.
Claims 1, 7-8 and 11-20 are rejected under 35 U.S.C. 103 as being unpatentable over Intengan (previously cited, US 4,440,301) in view Robertson et al. (previously cited, US 2002/0150501; hereinafter “Robertson”), Salter et al. (previously cited, WO 2014/043616 A1, “hereinafter “Salter”), Hansen et al. (previously cited, US 4,565,783), Kelley (previously cited, US 5,679,154) (hereinafter “Kelley”) and Beckwith et al. (previously cited, US 2005/0239200) (hereinafter “Beckwith”).
Regarding claims 1, 7, 11 and 15, Intengan discloses a reaction plate (slide (12); see FIGS. 1-5), comprising: a. a recessed well having a sunken wall protruding below said upper face (reaction area (20); see col. 2, lines 52-53; FIG. 1 of Intengan); b. an opposing proximate extension adjacent said recessed well (see fig. 1, reproduced below),
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wherein said proximate extension includes a raised proximate tab adapted to align multiple plates in a layered positioned (proximate extension includes a second rib (50) for mating with the grooves of adjacent plate, when multiple plates are stacked; see FIGS. 1 and 2), c. a distal raised platform adjacent said recessed well (rib 50; see FIG. 1 of Intengan); and wherein said recessed well (20) being spaced between said distal raised platform and said proximate extension (see FIG. 1). Intengan discloses the claimed invention except that the proximate extension having the raised proximate tab is formed as a pair of proximate extensions, wherein at least one of the proximate extensions having a raised proximate tab. However, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date to have modified the proximate extension having the raised proximate tab of Intengan such that is formed as a pair of proximate extensions, wherein at least one of the proximate extensions having the raised proximate tab. One of ordinary skill in the art would have been motivated to make said modification because said modification would have been a matter of design choice which a person of ordinary skill in the art would have found obvious to design the proximate extension of Intengan in separate parts instead of single structure. Intengan discloses wherein the recessed well contains a dried medium and fluid sample (col. 2, ll. 52-66, col. 3, ll. 49-55), but does not explicitly disclose wherein the medium is a dried media culture disc including a bacterial nutritive ingredient. Salter discloses a plate for enumerating a microorganism (claim 20) comprising a recessed well (see FIG. 1; claim 20) and covering layer (see claim 20). Salter further discloses wherein a dried culture medium is secured in the recessed well including a dried culture medium including a dried media culture disc comprising a bacterial nutritive ingredient (yeast and mold growth media; see page 5, ll. 9-24, claims 4 and 5). In view of Salter, it would have been prima facie obvious to one of ordinary skill in the art at the time of the effective filing date to have modified the recessed well of modified Intengan such that it contains dried media culture including bacterial nutritive ingredient (yeast and mold growth media), as disclosed by Salter. One of ordinary skill in the art would have been motivated to have made said modification so as to conduct desired assay and to enable the detection of desired particles within a sample, as disclosed by Salter (see Salter at page 3). Further, one of ordinary skill in the art would have made said modification because such modification would have resulted in the substitution of art recognized for the same intended purpose of processing fluid samples within the recessed well (see also MPEP § 2144.07). Modified Intengan does not explicitly disclose wherein the distal raised platform has a width adapted to support at least one user’s finger. However, modified Intengan does discloses wherein the reaction plate is disposed on a second reaction plate by an operator (col. 2, ll. 3-7 and 12-14). Robertson discloses a multiple analyte assaying device comprising a casing 12 having a well (FIG. 1: 48; [0030]) and a raised platform for ease of handling of the device (FIG. 1: 64,66; [0050]). In view of Robertson, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date to have modified the raised platform of modified Intengan to be adapted to support at least one user’s finger, for the purpose of facilitating ease of handling of the device by the operator, as disclosed by Robertson ([0050]). Intengan does not explicitly disclose a resealable, removable cover seal having a first end fixedly secured adjacent said raised platform and a second removable end adapted to removably enclose said recessed well. Hansen discloses a device comprising a plate (FIGS. 1-3: substrate 1) comprising a recessed well adapted to store culture medium (FIGS. 1-3: well 20) and resealable, removable cover seal covering the entire upper surface of the substrate including the recessed well (FIGS. 1-3: cover sheet 22 in which, during use of the device, can be replaced over the recessed well once a sample is placed in the recessed well). See col. 6, ll. 5-11 and 18-19, col. 7, ll. 60-68. The cover sheet is secured adjacent a raised platform of the substrate (see FIGS. 1 and 3). In view of Hansen, it would have been obvious to one of ordinary skill in the art at the time of the effective filling date to have employed a removable peel layer with the plate of modified Intengan in order to cover the content within the recessed well, as disclosed by Hansen (see col. 6, ll. 18-19). Further, one of ordinary skill in the art would have been motivated to make said modification for the purpose of preventing contaminants from entering the recessed well, as suggested by Hansen (see col. 6, ll. 22-28 of Hansen). Modified Intengan does not explicitly disclose wherein said proximate extensions being spaced between an access indent and at least one said proximate extensions include a rounded corner entry to said access indent. However, Modified Intengan does disclose wherein the plate can be used in automated instruments (see col. 2, lines 56-60). Kelley discloses a concentrator (plate) comprising a chamber for receiving a fluid specimen (see col. 6, lines 18-20; col. 13, lines 25-30) and notch between a pair of extension having rounded corner for facilitating removal of slide from automated instruments (see col. 4, lines 33-42; col. 13, lines 45-48 of Kelley). In view Kelley, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date to have modified the proximate extensions of modified Intengan to comprise an access indent between the pair of extensions and rounded corners for the purpose of facilitating removal of the plate from automated instruments and to ensure alignment with the instrument, as disclosed by Kelley (see col. 13, lines 45-48). Modified Intengan but does not explicitly disclose wherein said removable cover seal includes a peel tab removably secured to a proximate end of said plate. Beckwith discloses a device for culturing microorganisms comprising a substrate (FIG. 7: 112) and a cover sheet (FIG. 7: 120) for covering the substrate. The cover sheet comprises a tab (154) adjacent a proximate end of the device to facilitate peeling the cover sheet away from the substrate (see ¶¶ [0102] and [0105]). In view of Beckwith, it would have been obvious to one of ordinary skill in the art at the time of the effective filling date to have incorporated the peel tab of Beckwith into the removable cover seal of modified Intengan as disclosed by Beckwith (see ¶ [0105]). One of ordinary skill in the art would have been motivated to make said modification for the purpose of facilitating convenient manipulation of the cover sheet. As to the limitation “wherein said peel plate adapted to enumerate said microorganism, when present,” the peel plate of modified Intengan discloses all of the structural features of the claimed peel plate and thus fully capable of performing the recited function, i.e., to enumerate said microorganism, when present. Furthermore, the limitations “Furthermore, it is noted that the recitations of functional language "for enumerating live heterotrophic bacteria, when present, in a water sample; and, adapted to enumerate said microorganism, when present" are drawn to intended use of the claimed invention. It is noted that a recitation directed to the manner in which a claimed apparatus is intended to be used does not distinguish the claimed apparatus from the prior art, if the prior art has the capability to so perform. Apparatus claims must distinguish from the prior art in terms of structure rather than function (see MPEP 2114). It is further 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 § 2115. The prior art discloses all of the structural features of the claimed plate and thus since the structure is the same, the claimed functions are apparent” are drawn to an intended use of the claimed invention. It is noted that a recitation directed to the manner in which a claimed apparatus is intended to be used does not distinguish the claimed apparatus from the prior art, if the prior art has the capability to so perform. Apparatus claims must distinguish from the prior art in terms of structure rather than function (see MPEP 2114). Furthermore, the intended uses of the apparatus do not further define any structural features to the claimed removeable cover but rather only define how the removeable cover may be used. The prior art discloses all of the structural features of the claimed removable cover and thus since the structure is the same, the claimed functions are apparent.
Regarding claim 8, modified Intengan further discloses wherein said distal raised platform (50) spans about a length of a diameter of said recessed well (see FIG. 1 of Intengan).
Regarding claims 12-13, modified Intengan further discloses wherein a dried media is secured within the recessed well (see Intengan at col. 2, ll. 53-66; col. 3, lines 49-55),but does not explicitly disclose wherein said dried media culture disc includes a growth indicator color-developing agent. Salter discloses a plate for enumerating a microorganism (claim 20) comprising a recessed well (FIG. 1; claim 20) and covering layer (see claim 20). Salter further discloses wherein a dried culture medium is secured in the recessed well including a dried culture medium including a dried media culture disc comprising a growth indicator color-developing agent (triphenyltetrazolium chloride; claim 5; page 4, ll. 11-25). In view of Salter, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date to have modified the recessed well of modified Intengan such that it contains a dried media culture including a growth indicator color-developing agent (triphenyltetrazolium chloride), as disclosed by Salter (see claim 5; page 4, ll. 11-25). One of ordinary skill in the art would have been motivated to have made said modification so as to conduct desired assay and to enable the detection of desired particles within a sample, as disclosed by Salter (see Salter at page 3).
Regarding claim 14, modified Intengan further discloses wherein said dried media culture disc is secured within the recessed well (see Intengan at col. 2, ll. 53-66; col. 3, lines 49-55), but does not explicitly disclose wherein said dried media culture disc includes a plate count agar or plate count agar individual components. Salter discloses a plate for enumerating a microorganism (claim 20) comprising a recessed well (see FIG. 1; claim 20) and covering layer (see claim 20). Salter further discloses wherein a dried culture medium is secured in the recessed well including a dried culture medium including a dried media culture disc comprising a plate count agar or plate count agar individual components (see claim 6; page 6, ll. 1-4). In view of Salter, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date to have modified the recessed well of modified Intengan such that it contains dried media culture including a plate count agar or plate count agar individual components, as disclosed by Salter (see claim 6; page 6, ll. 1-4). One of ordinary skill in the art would have been motivated to have made said modification so as to conduct desired assay and to enable the detection of desired particles within a sample, as disclosed by Salter (see Salter at page 3).
Regarding claim 16, modified Intengan further discloses wherein said dried media culture disc is secured within the recessed well (see Intengan at col. 2, ll. 53-66; col. 3, lines 49-55), but does not explicitly disclose wherein said dried media culture disc includes a yeast and mold growth media. Salter discloses a plate for enumerating a microorganism (claim 20) comprising a recessed well (see FIG. 1; claim 20) and covering layer (see claim 20). Salter further discloses wherein a dried culture medium is secured in the recessed well including a dried culture medium including a dried media culture disc comprising a bacterial nutritive ingredient selective medium for growth of indicator organisms (see claim 9; page 3, ll. 23-25). In view of Salter, it would have been prima facie obvious to one of ordinary skill in the art at the time of the effective filing date to have modified the recessed well of modified Intengan such that it contains dried media culture disc including a bacterial nutritive ingredient selective medium for growth of indicator organisms as disclosed by Salter (see claim 9; page 3, ll. 23-25). One of ordinary skill in the art would have been motivated to have made said modification so as to conduct desired assay and to enable the detection of desired particles within a sample, as disclosed by Salter (see Salter at page 3).
Regarding claim 17, modified Intengan further discloses wherein said dried media culture disc is secured within the recessed well (see Intengan at col. 2, ll. 53-66; col. 3, lines 49-55), but does not explicitly disclose wherein said dried media culture disc includes a bacterial nutritive ingredient. Salter discloses a plate for enumerating a microorganism (claim 20) comprising a recessed well (see FIG. 1; claim 20) and covering layer (see claim 20). Salter further discloses wherein a dried culture medium is secured in the recessed well including a dried culture medium including a dried media culture disc comprising a bacterial nutritive ingredient (growth agents for coliform, E. coli, enterbacteriaceae, or pathogens; see claim 9; page 3, ll. 23-25). In view of Salter, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date to have modified the recessed well of modified Intengan such that it contains dried media culture disc including bacterial nutritive ingredient (growth agents for coliform, E. coli, enterbacteriaceae, or pathogens), as disclosed by Salter (see claim 9; page 3, ll. 23-25). One of ordinary skill in the art would have been motivated to have made said modification so as to conduct desired assay and to enable the detection of desired particles within a sample, as disclosed by Salter (see Salter at page 3).
Regarding claim 18, modified Intengan further discloses wherein said dried media culture disc is secured within the recessed well (see Intengan at col. 2, ll. 53-66; col. 3, lines 49-55), but does not explicitly disclose wherein said dried media culture disc includes a bacterial nutritive ingredient. Salter discloses a plate for enumerating a microorganism (claim 20) comprising a recessed well (see FIG. 1; claim 20) and covering layer (see claim 20). Salter further discloses wherein a dried culture medium is secured in the recessed well including a dried culture medium including a dried media culture disc comprising a bacterial nutritive ingredient (growth agents for salmonella, listeria, or camphlobacter; see claim 11; page 3, ll. 23-25). In view of Salter, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date to have modified the recessed well of modified Intengan such that it contains dried media culture disc including bacterial nutritive ingredient (growth agents for salmonella, listeria, or camphlobacter), as disclosed by Salter (see claim 9; page 3, ll. 23-25). One of ordinary skill in the art would have been motivated to have made said modification so as to conduct desired assay and to enable the detection of desired particles within a sample, as disclosed by Salter (see Salter at page 3).
Regarding claim 19, modified Intengan further discloses wherein said dried media culture disc is secured within the recessed well (see Intengan at col. 2, ll. 53-66; col. 3, lines 49-55), but does not explicitly disclose wherein said dried media culture disc includes an organic solvent. Salter discloses a plate for enumerating a microorganism (claim 20) comprising a recessed well (FIG. 1; claim 20) and covering layer (see claim 20). Salter further discloses wherein a dried culture medium is secured in the recessed well including a dried culture medium including a dried media culture disc comprising an organic solvent (claim 12). In view of Salter, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date to have modified the recessed well of modified Intengan such that it contains a dried media culture disc including an organic solvent, as disclosed by Salter (see claim 12). One of ordinary skill in the art would have been motivated to have made said modification so as to conduct desired assay and to enable the detection of desired particles within a sample, as disclosed by Salter (see Salter at page 3). Modified Intengan further discloses wherein said dried media culture disc is secured within the recessed well (see Intengan at col. 2, ll. 53-66; col. 3, lines 49-55). Modified Intengan does not explicitly disclose wherein said dried media culture disc includes an enhancer. Salter discloses a plate for enumerating a microorganism (claim 20) comprising a recessed well (FIG. 1; claim 20) and covering layer (see claim 20). Salter further discloses wherein a dried culture medium is secured in the recessed well including a dried culture medium including a dried media culture disc comprising an enhancer (claim 23; page 4, lines 23-25). In view of Salter, it would have been prima facie obvious to one of ordinary skill in the art at the time of the effective filing date to have modified the recessed well of modified Intengan such that it contains a dried media culture disc including an enhancer as disclosed by Salter (see claim 23; page 4, lines 23-25). One of ordinary skill in the art would have been motivated to have made said modification so as to conduct desired assay and to enable the detection of desired particles within a sample, as disclosed by Salter (see Salter at page 3).
Regarding claim 20, modified Intengan discloses all of the structural features of the claimed peel plate and thus considered to meet the limitation “a limit of detection being one colony forming unit per millimeter of said water sample.” Furthermore, the bacterial and water sample are material worked on and not elements of the claimed peel plate. It is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim.
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Intengan in view of Robertson, Salter, Hansen, Kelly and Beckwith as applied to claim 1 above, and further in view of Daykin (previously cited, US 7,452,711) (hereinafter “Daykin”).
Regarding claims 4-5, modified Intengan discloses the plate according to claim 1. Modified Intengan further discloses wherein said recessed well (20) is aligned below and parallel to said upper face of said growth plate (see FIG. 1 of Intengan). Modified Intengan does not explicitly disclose wherein the recessed well comprises a grid. Daykin discloses a contact plate (10) comprising a recessed well and a grid (see FIG. 1; col. 2, lines 60-66; col. 3, lines 11-13 of Daykin). In view of Daykin, it would have been obvious to one of ordinary skill in the art at the time of the effective filling date to have modified the recessed well of modified Intengan with a grid, because according to Daykin, the grid facilitates counting of microorganism within said recessed well (see col. 3, lines 11-14 of Daykin).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of U.S. Patent No. 10, 988,720. Although the claims at issue are not identical, they are not patentably distinct from each other because despite difference of wording each of the limitation of the instant claims are contained within claims of U.S. Patent No. 10, 988,720. Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 10,407,654. Although the claims at issue are not identical, they are not patentably distinct from each other because despite difference of wording each of the limitation of the instant claims are contained within claims of U.S. Patent No. 10,407,654.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, 4-5, 7-8 and 11-20 have been considered but are moot in view of the new ground of rejection. Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Rodriguez et al. (WO 2013/143508) disclose a system for detecting microorganisms including a method with a limit of detection per unit of sample that is less 1 CFU which allows detection of microbial species at very low concentrations.

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 LIBAN M HASSAN whose telephone number is (571)270-7636. The examiner can normally be reached on 8:30 AM - 5:00 PM.
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/LIBAN M HASSAN/Primary Examiner, Art Unit 1799