DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis 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.
Priority
The instant application, filed 07/01/2019, is a 371 filing of PCT/EP2018/050536, filed 01/10/2018, and claims foreign priority to EP17151040.7, filed 01/11/2017.
Status of Application, Amendments, and/or Claims
Applicant’s response and amendment of 01/21/2026 is acknowledged. Claims 54, 65, 76, and 82 are amended; claims 1-53, 55-64, 68, 74, 77, 79-81, 83, 100, 118-139, and 146-149 are cancelled; and claims 154-155 are new. Accordingly, claims 54, 65-67, 69-73, 74-76, 78, 82, 84-99, 101-117, 140-145, and 150-155 are currently pending.
The restriction discussed in detail in the Office action of 01/31/2023 is maintained. Claims 86-99, 101-117, 140-145, and 150-153 remain withdrawn as being drawn to a non-elected group.
Accordingly, claims 54, 65-67, 69-73, 75-76, 78, 82, 84-85, and 154-155 are examined on the merits herein.
Withdrawn Objections and Rejections
In the office action of 08/01/2025,
Claim 65 was rejected under 35 USC 112(b). Applicant’s amendment to the claim to replace “the traumatic and/or disordered area” with “is to be administered to a traumatic and/or disordered area” has overcome the rejection and the rejection is withdrawn.
Claim 76 was rejected under 35 USC 112(b). Applicant’s removal of the optional limitation has overcome the rejection and the rejection is withdrawn.
Claims 54, 65-67, 69-76, 78, and 84-85 were rejected under 35 USC 103 over Ho in view of Sun, Malda, Zhang, and Wozney. Applicant’s amendment to independent claim 54 to limit both the extracellular vesicle and MSC surface markers has overcome the rejections and the rejections are withdrawn.
Claim 77 was rejected under 35 USC 103 over Ho in view of Sun, Malda, Zhang, Wozney, and Keerthikumar. The cancellation of the claim has rendered the rejection moot and the rejection is withdrawn.
Claims 81-82 were rejected under 35 USC 103 over Ho in view of Sun, Malda, Zhang, Wozney, and Dominici. The cancellation of claim 81 has rendered the rejection of claim 81 moot and the rejection is withdrawn. Applicant’s amendment to independent claim 54 to limit both the extracellular vesicle and MSC surface markers has overcome the rejection of claim 82 and the rejection is withdrawn.
The following grounds of rejection are new as necessitated by applicant’s amendment to the claims.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 54, 65-67, 69-71, 76, 78, 82, and 84-85 are rejected under 35 U.S.C. 103 as being unpatentable over Ho, S.S., et al (2016) Bone morphogenetic protein-2 promotes human mesenchymal stem cell survival and resultant bone formation when entrapped in photocrosslinked alginate hydrogels Adv Healthc Mater 5(19); 2501-2509 in view of Sun, L., et al (2016) Safety evaluation of exosomes derived from human umbilical cord mesenchymal stromal cell Cytotherapy 18; 413-422, Malda, J., et al (2016) Extracellular vesicles – new tool for joint repair and regeneration Nat Rev Rheumatol 12(4); 243-9, Zhang, J., et al (2016) Exosomes/tricalcium phosphate combination scaffolds can enhance bone regeneration by activating the PI3K/Akt signaling pathway Stem cell research & therapy 7; 136, US 6,620,406 B1 (Wozney, J.M. and T.J. Turek) 16 SEPT 2003, Keerthikumar, S. et al (2015) Proteogenomic analysis reveals exosomes are more ocogenic than ectosomes Oncotarget 6(17); 15375-15396, and Dominici, M., et al (2006) Minimal criteria for defining multipotent mesenchymal stromal cells. The international society for cellular therapy position statement Cytotherapy 8(4) 315-317.
Ho teaches that there is a substantial need for methods that prolong cell persistence and enhance functionality in situ to enhance cell-based tissue repair. BMP-2 is often used at high concentrations for osteogenic differentiations of MSCs but can induce apoptosis. Biomaterials facilitate the delivery of lower doses of inductive molecules, potentially reducing side effects and localizing materials at the target site. Photocrosslinked alginate hydrogels (PAHs) can deliver osteogenic materials to irregular-sized bone defects, providing improved control over material degradation compared to ionically-crosslinked hydrogels. Ho hypothesized that delivery of human MSCs and BMP-2 from a PAH would increase cell persistence by reducing apoptosis, while promoting osteogenic differentiation and enhancing bone formation compared to MSCs in PAHs without BMP-2. Ho teaches that bone defects treated with MSCs in BMP-2 PAHs demonstrated 100% union as early as 8 weeks and significantly higher bone volumes at 12 weeks, while defects with MSC-entrapped PAHs alone did not fully bridge. The study demonstrates that transplantation of MSCs with BMP-2 in PAHs achieves robust bone healing, providing a promising platform for use in bone repair (abstract).
Ho entrapped MSCs in RGD-modified PAHs containing recombinant human BMP-2. The efficacy of this strategy to promote cell survival and bone regeneration was evaluated both in vitro and in vivo (page 3, paragraph 3). Ho teaches that for in vivo studies MSC/hydrogel constructs were prepared using 150 μL of PAH solution carrying 20x106 cells/mL and either 0 or 2 μg of BMP-2 per hydrogel (page 8, paragraph 4). For in vivo studies, defects were created in the right femora in rat studies and the defects were immediately filled with the MSC/hydrogel constructs containing 0 or 2 μg of BMP-2 (pages 9-10, Rat femoral segmental defect model of bone healing).
Ho teaches that co-delivery of MSCs and BMP-2 from PAHs decreased fracture healing time and improved tissue mineralization. Defects treated with MSCs alone did not fully bridge and yielded less tissue repair over 12 weeks (page 5, paragraph 1).
The teachings of Ho differ from the instant claims in that Ho teaches MSCs, not extracellular vesicles derived from umbilical cord-derived MSCs at the claimed amounts. Additionally, Ho also does not teach that the BMP-2 is at a dose of from 375-900 μg or the claimed expressed surface markers.
Sun teaches that mounting evidence shows that non-cell-based transplantation of exosomes derived from mesenchymal stromal cells (MSCs) has more potential protective and reparative effects than MSCs have. Sun provides a study evaluating the safety of transplanted exosomes derived from human umbilical cord MSCs (hucMSC exosomes) (abstract, background aims).
Sun teaches that MSCs represent a promising young-state stem cell source for cell-based therapy and transplantation of MSCs is beneficial for the treatment of several kinds of diseases. However, transplantation is restrained by several short comings. For example, when using viable replicating cells as therapeutics, the biological potency of the agents cannot be attenuated when the treatment is terminated and may amplify over time when the need for therapy has been eliminated. The potential of MSCs to differentiate into osteocytes and chondrocytes also raises long-term safety concerns regarding tissue ossification or calcification as reported in some animal studies (paragraph bridging columns, page 413).
With emergence of the paracrine hypothesis, the therapeutic application of exosomes is more promising. It has been reported that exosomes have functions similar to those of MSCs. By replacing transplantation of MSCs with exosomes, many of the safety concerns and limitations associated with the transplantation of MSCs could be mitigated. Exosomes are one of several groups of secreted vesicles and, among the secreted vesicles, have better defined biophysical and biochemical properties. They have a diameter of 50-100 nm, a density in sucrose of 1.13-1.19 g/mL, and can be sedimented at 100000g (page 413, right column, paragraph 2). They contain both proteins and RNAs. Most exosomes have an evolutionarily conserved set of proteins including tetraspanins CD9, CD63, and CD81, Alix, and Tsg101, and they also have unique tissue or cell type proteins that reflect their cellular sources (page 414, left column, paragraph 1).
Sun teaches a method of exosome isolation, purification and characterization (page 414, Methods, Isolation, purification and characterization of hucMSC exosomes). In the method Sun teaches the use of exosome-free FBS/L-DMEM (page 414, paragraph bridging columns).
Marda teaches that, in the context of tissue repair, the use of MSCs as a cellular therapy had been increasingly gaining attention despite difficulties in controlling undesired ossification of the newly formed tissue. As MSCs establish a regenerative microenvironment by secreting bioactive molecules, the supposed underlying mechanism by which these cells enhance chondrogenic differentiation is thought to be based on trophic factors. Consequently, soluble biomolecules – and possibly EVs – are likely to be the main effectors in the MSC-driven regenerative pathway. In line with this assumption, in a scenario of tissue injury, mRNA and miRNA laden EVs from local MSCs in the tissue could lead to genetic reprogramming and induction of cell differentiation, instructing a cell-cycle ‘reboot’ and starting the regeneration process. These regenerative approaches could be simplified, potentially, by replacement of cultured MSCs with the MSC secretome, or even by specific MSC-derived EVs. This is an exciting prospect and might lead to an off-the-shelf regenerative treatment with fewer constrains than the present strategies as no living cells would be injected into patients. Marda further teaches that soluble biomolecules, and possibly EVs, are likely to be the main effectors in the MSC-driven regenerative pathway (page 246, Tissue Repair).
Malda teaches that cell-derived extracellular vesicles (EVs), present in synovial fluid and cartilage extracellular matrix, are involved in joint development and in the regulation of joint homeostasis. Malda also teaches that the field has recognized a role for these EVs as a new tool to restore joint homeostasis and enhance articular tissue regeneration. In addition to direct injection of therapeutic EVs into the target site, surface coating of scaffolds and embedding of EVs in hydrogels might also lead to novel therapeutic possibilities. Based on the existing literature of EVs in synovial fluid and articular tissues, and investigation of the molecular factors, including microRNAs, active in joint homeostasis, Malda postulates new perspectives for implementation of EVs as a regenerative medicine approach in joint repair (abstract), including methods in which EVs could be applied as therapy to counteract inflammatory events at the tissue level (page 246, paragraph bridging center and right column; Figure 2).
Malda proposes the following application of EVs in joint disease in Figure 2c (page 246):
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As shown in Figure 2c, which is duplicated above, Malda proposes EVs derived from cultured mesenchymal stem cells (MSCs; page 246, right column, paragraph 2) with miRNA and growth factors including BMP-2, coated on the surface of a polymer scaffold or embedded in hydrogel matrices for application in tissue repair.
Zhang teaches that accumulating evidence has shown that exosomes, the naturally secreted nanocarriers of cells, can exert therapeutic effects in various disease models in the absence of parent cells (abstract, background). Zhang studied exosomes derived from human-induced pluripotent stem cell-derived mesenchymal stem cells combined with tricalcium phosphate scaffolds to repair critical-sized calvarial bone defects and assessed efficacy (abstract, methods).
In the study, 100 μL of exosomes at concentrations of 5x1011 particles/mL or 1x1012 particles/mL were added to the scaffold or an equal volume of 5*exosome diluent and left still until the exosomes were absorbed (page 3, left column, paragraph 3); figures which indicate the inclusion of 5x1010 particles/scaffold and 1x1011 particles/scaffold (page 3, left column, paragraph 3).
Wozney teaches methods for the treatment of periodontal disease and bone lesions comprising administering a composition containing one or more osteogenic and/or ligament-inducing bone morphogenetic proteins (BMP) and a suitable carrier (abstract). Wozney teaches a preparation of a scaffold comprising 20 μg of BMP-2 per 100 μL of implant volume. The reference exemplifies an implant volume of 2.5 to 3 mL (Example 1), which amounts to a unit dosage of 500μg to 600μg per scaffold.
Keerthikumar teaches that extracellular vesicles include exosomes that are produced through the endocytic pathway via the multivesicular bodies and ectosomes that are released through the budding of the plasma membrane (abstract). Keerthikumar isolated and characterized exosomes and ectosomes and teaches that exosomes were identified using Alix and TSG101 (page 15376, left column, paragraph 3). To confirm the absence of contaminants due to cell death, western blotting was performed for GM130, a golgi apparatus marker that is considered to be absent in EVs. In the studies of Keerthikumar, GM130 could not be detected, confirming the absence of apoptotic cell debris (page 15376, right column, paragraph 1).
Dominici teaches a set of standards proposed by the Mesenchymal and tissue stem cell committee of the ISCT to define human MSC for both laboratory-based and clinical studies (page 316, left column, paragraph 2). A summary is provided in Table 1 in which it is shown that the criteria include a phenotype of being positive for markers including CD105, CD73, and CD90, and negative for markers including CD45, CD34, CD14 or CD11b, CD79a or CD19, and HLA-DR (page 316, Table 1).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the MSCs used in the PAH scaffolds of Ho with exosomes derived from human umbilical cord MSCs (hucMSC exosomes) based on the teachings of Sun and as further supported by Malda. It would have further been obvious to include 5x1010 exosome particles/scaffold or 1x1011 exosome particles/scaffold as taught by Zhang and between 500μg to 600μg of BMP-2 per scaffold as taught by Wozney. It would also have been obvious to have the exosomes be positive for CD9, CD63, and CD81, Alix, and Tsg101 as disclosed by Sun while ensuring that the exosomes are negative for GM130 as taught by Keerthikumar and to ensure that the MSCs are positive for surface markers including CD105, CD73, and CD90 and negative for markers including CD45, CD34, CD14 or CD11b, CD79a or CD19, and HLA-DR when the EVs are isolated based on the teachings of Dominici.
An ordinarily skilled artisan would have been motivated to substitute the MSCs in the PAH scaffolds of Ho with hucMSC exosomes as Sun teaches that by replacing transplantation of MSCs with exosomes, many of the safety concerns and limitations associated with transplantation of MSCs could be mitigated, for example, the concept that viable replicating cells cannot be attenuated when treatment s terminated, that MSCs have the potential to differentiate into osteocytes and chondrocytes raising long-term safety concerns regarding tissue ossification or calcification, and the possibility of cell fusion at the site of injury. This substitution is further supported by Malda, which teaches that regenerative approaches using MSCs could be simplified, potentially, by the replacement of cultured MSCs with MSC-derived EVs and directly suggests the combination of EVs derived from cultured MSCs or iPSCs with BMP-2 in scaffolds, including hydrogels, for tissue repair. One of ordinary skill in the art would have had a reasonable expectation of success as both Sun and Malda suggest EVs from MSCs as an alternative to whole MSC cells.
It would have been obvious to one of ordinary skill in the art to include 5x1010 exosome particles/scaffold or 1x1011 exosome particles/scaffold as taught by Zhang and between 500μg to 600μg of BMP-2 per scaffold as taught by Wozney as the references demonstrate the effective uses of these dosages of MSC derived exosomes and BMP-2 in scaffolds for bone regeneration and lesion treatment. An ordinarily skilled artisan would have had a reasonable expectation of success as the combination of Ho, Sun, and Malda teach the use of scaffolds comprising MSC derived exosomes and BMP-2 together in scaffolds for bone regeneration and repair. The dosages of particles/scaffold and BMP-2 taught by Zhang and Wozney fall within the claimed ranges rendering the claimed ranges obvious per MPEP 2144.05.
It is further noted that the determination of optimal exosome and BMP-2 concentrations is considered to be routine optimization where considerations for use dosages were known in the prior art. See MPEP 2144.05 (II) A., which states that "’[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)” and "It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007)”. In this case it would have been obvious to use the dosages disclosed by Zhang and Wozney to determine the optimal number of exosomes and amount of BMP-2 for use in the scaffolds taught by the combination of applied references.
A person of ordinary skill in the art would have been motivated to ensure that the exosomes are positive for CD9, CD63, and CD81, Alix, and Tsg101 as Sun teaches that these markers are conserved on exosomes. An ordinarily skilled artisan would also have been motivated to ensure that the exosomes are negative for GM130 as Keerthikumar teaches that GM130 is considered to be absent in EVs and is a means to confirm that apoptotic cell debris is not present in the isolated EVs. A person of ordinary skill in the art would have had a reasonable expectation of success as Keerthikumar is teaching expression markers on EVs including those that overlap with the markers taught by Sun, including Alix and TSG101.
One of ordinary skill in the art would have been motivated to ensure the MSCs fit the phenotypical criteria of Dominici as Dominici teaches that these markers can be used to define human MSC in laboratory and clinical studies and by ensuring these markers are within criteria would ensure that MSCs are isolated for EV extraction.
With regards to the instant claim limitation that the extracellular vesicles comprise at least about 80%, 85%, 90%, 94.4%, 95%, 99% or 99.5% extracellular vesicles derived from the MSCs, Sun teaches a method in which umbilical cord MSCs were isolated and cultured and exosomes were isolated using exosome free FBS/L-DMEM media indicating that the isolated exosomes were essentially free of EVs not derived from the MSCs, meeting the limitations of at least the recited percentages.
Additionally, Sun teaches that the EVs were derived from isolated MSCs and does not teach further inclusion of fibrinogen or heparin in the culturing media. As natural fibrinogen is found in blood plasma and heparin is found in mast cells, not MSCs, a person of ordinary skill in the art would reasonably identify that the EVs isolated by Sun are free of fibrinogen and heparin.
Regarding claims 66-67, claim 54, on which the claims depend, does not require that there be extracellular vesicles that are not derived from the MSCs. As discussed in detail above, Sun teaches a method in which umbilical cord MSCs were isolated and cultured in exosome free FBS/L-DMEM. Based on these teachings, an ordinarily skilled artisan would reasonably expect that the extracellular vesicles would be free of vesicles not derived from the umbilical cord MSCs. As the claims do not require vesicles not derived from MSCs, the teachings of Ho, Sun, Malda, Zhang, and Wozney meet the instant claim limitations.
Response to Arguments
Applicant’s arguments in the response filed 01/21/2026 have been fully considered in so far as they apply to the rejections of the instant office action, but were not persuasive.
With regards to the rejections under 35 USC 103, applicant argues that absent impermissible hindsight no combination of the documents relied on in the rejection would lead an ordinarily skilled artisan to the claimed invention. Applicant also argues that it is telling that the rejection requires a combination of up to six disparate documents to justify the rejections.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Furthermore, in response to applicant's argument that the examiner has combined an excessive number of references, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991).
Applicant further argues that a declaration by Professor Andreas Traweger has been made of record and declared that the instantly claimed invention provides unexpected results and synergy. Applicant provides excerpts from the declaration in the response and argues that the claimed invention is patentably distinguishable from the cited references and has critical features not taught in the cited art that lead to the observed synergy. Applicant also argues that the Office has ignored these conclusions of a qualified expert.
It is first noted that the declaration by Professor Andres Traweger has not been ignored, but rather has been fully considered in view of the guidelines presented in MPEP 716.02 for establishing unexpected results. The results were also fully discussed in the office action of 08/01/2025. Additionally, while applicant argues that the claimed invention has critical features not taught in the cited art that leads to the synergy, applicant does not specifically point out any feature that is currently claimed but not taught in the combination of applied art.
In the declaration, it is argued that the combination of EVs with at least one BMP exhibits unexpected and synergistic effects. The declaration references the post filing publication Deluca for support that the claimed composition exhibits unexpected results. Specifically, the declaration references Figure 6A of Deluca as showing significantly increased torque in femora treated with the combination of a low dose of BMP-2 and EVs compared to the empty control group. The declaration argues that treatment with EVs or low dose of BMP-2 alone did not result in an increase in torque when compared to the empty control. Figure 6 of Deluca is replicated below for convenience.
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The declaration argues that the results are further supported by radiographs (Deluca, Fig 3) and histological staining and scoring (Deluca, Fig 4 and Table 3).
The declaration argues that while EVs and BMP-2 were known to be effective in tissue repair when administered separately, an ordinarily skilled artisan would not have been motivated to combine them nor would they have envisioned the unexpected synergistic effects observed.
The results, however, are not persuasive in view of MPEP 716.02.
The results presented in Deluca do demonstrate that alginate hydrogels comprising BMP-2 and EVs derived from UC-MSCs results in synergistic increases in Torque compared to either agent alone (Deluca, Fig. 6A); however a comparison to the therapeutics alone is not a comparison to the closest prior art. This is particularly the case as Ho demonstrates the combination of MSCs and BMP-2 in scaffolds for treatment of bone defects (abstract) and Malda directly suggests the combination of extracellular vesicles derived from MSCs in combination with BMP-2 in scaffolds for tissue repair (Fig 2C). In this case, the compositions taught by Ho and/or Malda are the closest prior art.
MPEP 716.02 (e) states “An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979).” MPEP 716.02 (b)(III) states “Evidence of unexpected properties may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims.”
As discussed in the rejections of the instant office action, the reference Ho teaches that bone defects treated with MSCs and BMP-2 in PAHs demonstrated 100% union as early as 8 weeks and significantly higher bone volumes at 12 weeks, while defects with MSC-entrapped PAHs alone did not fully bridge. Results which demonstrate that the transplantation of MSCs with BMP-2 in PAHs achieves robust bone healing, providing a promising platform for use in bone repair (abstract). Ho also demonstrates that the inclusion of BMP-2 in PAH scaffolds containing MSCs significantly increased torque and torsional stiffness, as shown in figure 7, which is replicated below for convenience. It is noted that Ho does not provide comparative data for scaffolds with BMP-2 without MSCs and; therefore, it cannot be determined whether or not the results provided demonstrate synergy.
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While Ho teaches the use of MSCs, not EVs, a person of ordinary skill in the art would expect similar, or better, results based on the teachings of the other applied references, for instance Malda and Sun, which teach that non-cell based transplantation of exosomes derived from MSCs have more potential protective and reparative effects than MSCs and suggests the use of exosomes in place of whole MSC.
Additionally, Malda directly suggests a combination of EVs derived from cultured MSCs or iPSCs in combination with therapeutics including BMP-2 in scaffolds for the treatment of tissue repair. Malda teaches that such therapeutics would have controlled kinetics for EV release and degradation, promoting cell proliferation and ECM production, promoting chondrogenesis, and regulation of immunogenic processes in and around the scaffold (Fig. 2C).
Applicant does not provide a comparison to the scaffolds of Ho or Malda in order to demonstrate that the synergistic effect observed, with regards to the claimed composition and torque during bone repair, are unexpected properties of the claimed composition compared to those of the prior art. As such, the results are not effective to rebut the prima facie case of obviousness set forth in the instant office action per MPEP 716.02 (e).
Additionally, the results are not commensurate in scope with the instant claims.
Deluca used alginate hydrogel implanted with EVs and BMP-2 at amounts of 2x109 and 1.5μg, respectively. Deluca is not clear regarding the crosslinking method that was used to form the hydrogel scaffold; however, the instant specification suggests that the scaffold is crosslinked using CaCl2 (pages 62-63, 2.11. Implant preparation).
Applicant has previously asserted that the alginate hydrogel is inert and acts as a carrier only without altering biological properties; however, the art suggests that the type of scaffold could impact release of the therapeutics, which would, in turn, be expected to result in varying therapeutic outcomes. For instance, Ho studied photocrosslinked alginate hydrogel PAH scaffolds for delivery of BMP-2 and MSCs for the treatment of bone defects. Ho teaches that alginate hydrogels were under examination for many tissue engineering applications due to their biocompatibility, tailorable mechanical properties, and tunable degradation rate. Furthermore, alginate had been successfully used as a delivery vehicle for BMP-2 to promote healing of large bone defects similar to the defect used in the disclosed studies. A host of chemistries are available to crosslink alginate hydrogels, with photocrosslinking of the natural polymer offering improved control over degradation by eliminating the material dependence on diffusion of crosslinking cations and the ionic composition of the surrounding microenvironment (paragraph bridging pages 5-6). These teachings suggest that, even if the scaffold is inert, the rate of degradation of the scaffold in the microenvironment plays a role in the release of the therapeutics which would in turn effect the therapeutic outcome. In the response, applicant states that the scaffold serves as a carrier for localized delivery and potentially a more sustained release, however, applicant does not discuss the impact that differences in sustained release would have on the torque, which is the outcome alleged to be unexpected.
The results provided by applicant in the instant disclosure, and the reference Deluca, demonstrate that the claimed composition results in synergistic outcomes when an alginate hydrogel is used, applicant provides no results or evidence that such synergistic outcomes would be achieved if a different scaffold were used where the rate of degradation is different resulting in changes in the rate of therapeutic release. As applicant does not provide evidence to support the entire scope of the claimed composition, which does not limit the scaffold to any specific material, the results are not commensurate with the full scope with the claimed composition.
MPEP 716.02(d) states “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range.”
Allowable Subject Matter
Claims 154 and 155 are allowed.
Claims 72, 73, and 75 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: The instant claims encompass a pharmaceutical compositions comprising extracellular vesicles derived from umbilical cord mesenchymal stromal cells (MSCs) where the EVs are at least about 80%, 85%, 90%, 94.4% 95%, 99%, or 99.5% of extracellular vesicles derived from the MSCs and are at a dose of 1x107 to 1x1012 particles, where the EVs are essentially free of heparin, the composition and/or EVs are in a scaffold, the composition further comprises BMP2 at a dose from 375 ug to 900 ug, wherein the EVs comprise the recited miRNAs and recited miRNA levels. Claims 72-73, 75, 154, and 155 further limit the EVs to comprising, or not comprising, particular miRNAs and miRNA concentrations.
The closest prior art is Ho, which is discussed in detail above. To summarize, Ho studied the combination of MSCs with BPM2 in photocrosslinked alginate hydrogels and demonstrates that transplantation of the gels achieves robust bone healing providing a promising platform for bone repair (abstract). Ho teaches that the combination resulted in decreased fracture healing time and improved tissue mineralization while defects treated with MSCs alone did not fully bridge and yielded less tissue repair over 12 weeks.
While Ho does not teach EVs derived from UC-MSCs, references such as Sun and Marda demonstrate that the prior art had considered UC-MSCs and that EVs are likely to be the main effectors in MSC-driven regeneration pathways. The art also teaches that miRNA and miRNA laden EVs from MSCs in culture could lead to genetic reprogramming and cell differentiation instructing cell cycle reboot and starting the regeneration process. Sun also teaches the use of UC-MSCs and the extraction of hucMSC exosomes in exosome free FBS/L-DMEM media.
The combination of these references; however, do not teach the claimed composition with the claimed miRNAs or miRNA concentrations.
In the prior office action, of 08/01/2025, it was considered that the miRNAs comprised in the extracellular vesicles would flow naturally from culturing the umbilical cord MSCs taught by Sun. Specifically, Sun teaches methods in which umbilical cord MSCs were isolated and cultured in exosome free media. Upon further consideration; however, it is concluded that the claimed miRNA and amounts would not necessarily arise from the method disclosed in the references as the prior art suggests that the miRNAs and levels are impacted by the additional factors, for instance the donor of the UC-MSCs, not only the culturing method.
For instance, Zaunschirm-Strutz, J., et al (2025) MicroRNA profiling in umbilical cord plasma: links to maternal metabolism and neonatal metabolic and inflammatory traits J. Physiol 603.6; 1663-1680 presents a study exploring the relationship between circulating micro RNAs (miRNAs) in umbilical cord plasma, analyzed via next-generation sequencing, and maternal metabolic traits, in addition to neonatal anthropometric, metabolic and inflammatory traits. Correlation analysis identified maternal body mass index and gestational weight as the strongest influencing factors among maternal characteristics. For neonatal characteristics, placental weight, neonatal glucose metabolism, and UPC leptin levels showed the most significant effects (abstract).
Wang, X., et al (2026) Investigating the therapeutic efficacy of quality-controlled, miR-146a-5p-enriched small extracellular vesicles derived from MSCs against Idiopathic pulmonary fibrosis Stem cell reviews and reports 22; 523-544 studied a good manufacturing practice grade process for isolating UC-sEvs, and RNA-seq was performed to screen for potential therapeutic cargo in the product to confirm therapeutic effects (abstract). Wang studied miRNA expression patterns in three UV-sEv batches. Overall, over 2300 miRNAs were detected in the samples and, among them, 155 miRNAs were differentially expressed between Ev2 and Ev3. Wang predominantly focused on the most predominant miRNAs with high abundance and no differences and teaches that even the top 40 miRNAs enriched in the three samples were different.
It is not apparent from the art that the claimed miRNA and concentrations would necessarily flow from the method disclosed by the closest prior art, and prior art was not identified that would have reasonably lead an ordinary skilled artisan to the claimed compositions with the claimed miRNA types and levels for use in the claimed pharmaceutical compositions. As such, the claims were found to be novel and non-obvious.
Conclusion
THIS ACTION IS MADE FINAL. 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 extension fee 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 AUDREY L BUTTICE whose telephone number is (571)270-5049. The examiner can normally be reached M-Th 8:00-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joanne Hama can be reached on 571-272-2911. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/AUDREY L BUTTICE/Examiner, Art Unit 1647
/SCARLETT Y GOON/Supervisory Patent Examiner
Art Unit 1693