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 .
DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on February 14, 2025 has been entered.
RESPONSE TO AMENDMENT
Status of Application/Amendments/claims
Applicant’s amendment filed February 14, 2025 is acknowledged. Claims 3-11, 18 and 23 are canceled. Claims 12, 14 and 30-31 are amended. Claims 1-2, 12-17, 19-22 and 24-37 are pending in this application. Claims 1-2, 14-15, 19-22, 25-26, 28, 31, 33 and 36-37 are withdrawn without traverse (filed 02/22/2022) from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on February 2, 2022.
Amended claims 14-15, 28, 31, 33 and 36-37 are directed to a method of treating a disease which was originally grouped in Group III and was withdrawn from consideration without traverse as being directed to a non-elected invention in the response filed 02/22/2022. See 37 CFR 1.142(b) and MPEP § 821.03. Accordingly, claims 14-15, 28, 31, 33 and 36-37 directed to a method of treatment are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
Claims 12-13, 24, 27, 29-30, 32 and 34-35 are under examination in this office action.
Applicant’s arguments filed on February 14, 2025 have been fully considered but they are not deemed to be persuasive for the reasons set forth below.
Claim Rejections/Objections Withdrawn
The rejection of claims 14-17, 24, 28-29, 31, 33 and 36-37 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite is withdrawn in response to Applicant’s amendment to the claims; and switching amended claims 14-15, 28, 31, 33 and 36-37 to an invention of method of treatment that was withdrawn from consideration without traverse in the response filed 02/22/2022.
The rejection of claims 15-17, 24, 29, 31 and 33 under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form is withdrawn in response to Applicant’s amendment to the claims, and the rejection of claims 15-17, 31 and 33 is moot because amended claims 14-15, 28, 31, 33 and 36-37 are directed to an invention of method of treatment that was withdrawn from consideration without traverse in the response filed 02/22/2022.
The rejection of claims 14, 16-17, 28, 33 and 36-37 are rejected under 35 U.S.C. 103 as being unpatentable over Xie’2012 in view of Zhang (US2017/0233698) and Funderburgh et al. (2016) and further in view of Deng et al. (US2015/0175965) and Basu et al. (2014) is withdrawn in response to Applicant’s amendment to the claims and the rejection of claims 14, 16-17, 28, 33 and 36-37 is moot because amended claims 14, 16-17, 28, 33 and 36-37 are directed to an invention of method of treatment that was withdrawn from consideration without traverse in the response filed 02/22/2022.
New Grounds of Rejection Necessitated by the Amendment
The following rejections are new grounds of rejections necessitated by the amendment filed on February 14, 2025, the following rejections are maintained.
Claim Rejections - 35 USC § 103
7. 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 12, 32 and 34-35 are rejected under 35 U.S.C. 103 as being unpatentable over Xie’2012 (Invest Ophthalmol. Vis. Sci. 2012; 53:279-286) in view of Xie’2011 (Stem Cell, 2011; 29:1874-1885), Zhang et al. (US2017/0233698) and Funderburgh et al. (The Ocular Surface, 2016; 14:113-120). The reference of Xie’2011 is necessitated by Applicant’s amendment. The rejection is maintained for the reason of record and the reasons set forth below.
Claims 24, 27 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Xie’2012 in view of Xie’2011, Zhang and Funderburgh as applied to claims 12, 32 and 34-35 above, and further in view of Deng (US2015/0175965) and Basu (2014). The reference of Xie’2011 is necessitated by Applicant’s amendment. Amended claims 14, 16-17, 28, 33 and 36-37 are directed to a method of treatment which was withdrawn without traverse from further condition based on election in the response filed 02/22/2022, and thus, claims 14, 16-17, 28, 33 and 36-37 are withdrawn without traverse from further condition. The rejection is maintained for the reasons of record and the reasons set forth below.
Claims 12-13, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Xie’2012 in view of Xie’2011, Zhang, Funderburgh, Deng and Basu, and further in view of Claeyssens (US2015/0118197), Frank (US11129854) and Omoto et al. (2009). The reference of Xie’2011 is necessitated by Applicant’s amendment. Amended claims 14, 16-17, 28, 33 and 36-37 are directed to a method of treatment which was withdrawn without traverse from further condition based on election in the response filed 02/22/2022, and thus, claims 14, 16-17, 28, 33 and 36-37 are withdrawn without traverse from further condition. The rejection is maintained for the reasons of record and the reasons set forth below.
Claims 12, 32 and 34-35 as amended is drawn to a method of preparing a cell composition for use in treating non-healing corneal epithelial defect or persistent corneal epithelial defect, the method comprising: mixing a plurality of limbal derived stromal cells (LSCs) and a plurality of limbal derived epithelial cells (LECs) to produce a mixed population of cells, wherein the LSCs and the LECs are present in the composition at a ratio ranging from 1:5 to 5:1; wherein the LSCs express CK3+12, ABCG2, PAX6 and VIMENTIN; and wherein the composition further comprises thrombin and fibrinogen at a ratio ranging from 1:5 to 5:1.
Response to Arguments
On p. 8-14 of the response, Applicant argues that the combined references do not lead a skilled artisan to arrive at the claimed invention because: i) Xie’2012 does not describe preparing a composition, but Xie’2012 teaches seeding a mixture of pre-labeled P4 cells with epithelial cells in 3D Matrigel containing MESCM and culturing for 10 days. Xie’2012 does not recite that the stromal cells express markers CK3+12, ABCG2,PAX6 and VIMENTIN and the P4 expanded cells are cultured as spheres in MESCM (DMEM/F-12 (1:1) supplemented with 10% knockout serum or SHEM supplemented with 5%FBS whereas the claimed invention teaches obtaining stromal cells by culturing epithelial stem cells in low serum DMEM/F-12 media, and as a monolayer culture to finally obtain cells expressing CK3+12, ABCG2,PAX6 and VIMENTIN; ii) neither Zhang nor Funderburgh teach or suggest admixing limbal derived stromal cells and limbal derived epithelial cells, wherein the limbal derived stromal cells express CK3+12, ABCG2, PAX6 and VIMENTIN because ii)-1 Zhang teaches a method of obtaining limbal stem cells or progenitor (LSC)-like cells from skin epithelial stem cells (SESCs) comprising instroduction of a nucleic acid encoding PAX6 integrated into a chromosome and benefits of treatments with epithelial stem cells; ii)-2 Funderburgh teaches using CSSCs as feeder cells to improve LESC expansion in culture and is silent on using two cell types together; iii) Deng teaches away from the claimed method because Deng teaches a method of preparing a composition in which a second layer of limbal derived epithelial cells is deposited directly onto the first layer of limbal derived stromal cells, which are in direct contact, and a system for culturing human limbal stem cells of corneal epithelium in which human limbal stem/progenitor cells and feeder cells are separately cultured; iv) Basu teaches preparing a culture of only mesenchymal cells and using the homogenous population for treatment; v) Claeyssens, Frank, and Omoto fail to compensate the deficiency of Zhang, Deng, Funderburg and Basu and do not teach specific cell concentration range, the ratio of limbal derived stromal cells to limbal derived epithelial cells, the ratio of thrombin to fibronectin and the markers on the limbal derived stromal cells. Claeyssen describes experiments using either the epithelial cells or the mesenchymal stem cells but not two cell types together in the same composition. Frank teaches the number of ABCB5(+)LSCs which comprises only limbal derived epithelial cells. Omoto is directed to the use of human bone-marrow-derived mesenchymal stem cells as a source of feeder cells and does not suggest limbal derived stromal cells.
Applicant's arguments have been fully considered but they are not found persuasive. Contrary to Applicant's arguments, the examiner asserts that based on MPEP §2141, MPEP2141-I, rationales identified by the Court in KSR (KSR International Co. v. Teleflex Inc. (KSR), 550 U.S. 398, 82 USPQ2d 1385 (2007)), MPEP2141-II, the basic factual inquires of Graham v. John Deere Co.(Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966)),and MPEP §2141.01-2147.03, the cited references do render the claimed invention obvious because:
i. Applicant cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).For the rejection of claims 12, 32 and 34-35, Xie’2011 is cited to support the importance of the close association of limbal epithelial stem cells (LECs) and subjacent mesenchymal cells (LSCs) for promoting epithelial growth, and the motivation and an expectation of success in preparing a cell composition comprising LSCs and LECs. Zhang and Funderburgh are cited to support that LSC express different markers including PAX6, ABCG2, CK3+12 (K3 and K12) and thrombin and fibrinogen encompassed in a composition at a ratio range within the ratio of from 1:5 to 5:1.
In this case, Xie’2012 teaches a method of preparing a cell composition comprising mixing a plurality of human limbal stromal mesenchymal cells (i.e. human limbal derived stromal cells (LSCs)) and a plurality of human limbal epithelial stem/progenitor cells (LECs) at a ratio of 1:4 and culturing the mixed cells at a density of 5x105 cells/cm2 in 3D Matrigel containing MESCM (modified embryonic stem cell medium) for 10 days, which meets the limitations “mixing a plurality of LSCs and a plurality of LECs to produce a mixed population of cells, wherein the LSCs and the LECs are present in the composition at a ratio of 1:4 (within the range of ranging from 1:5 to 5:1)” (see p. 280, 1st col., section: coated, 2D and 3D Matrigel Culture and Treatment; p.280, 1st col., 1st paragraph-2nd paragraph; p. 279, 2st col., Results to p. 285, 2nd col.). The human LSCs disclosed by Xie’2012 express CK12, PAX6 and VIMENTIN (Vim+) and thus are the limbal stromal mesenchymal stem cells or limbal derived stromal cells (LSCs) as instantly claimed (p. 279, abstract; p.281, 1st col-2nd col.; figure 2). The claimed concentration of 4-5x103 cells/ul is equal to 4-5x106 cells/ml, which can be converted to the density of 4.8x105 cells/cm2 in a T25 flask based on the surface area of 25cm2 and volume of 3-5ml, which corresponds to the density of 5x105 cells/cm2 in 3D Matrigel containing MESCM disclosed by Xie’2012.
While Xie’2012 does not explicitly teach that LSCs also express CK3+12 and ABCG2 or the composition further comprising thrombin and fibrinogen at a ratio ranging from 1:5 to 5:1 as in claim 12, Xie’2011, Zhang and Funderburgh teach these limitations and provide motivation of success in using LSC expressing CK3+12, ABCG2, PAX6 and VIMENTIN and thrombin and fibrinogen at a ratio of from 1:5 to 5:1 in the method of Xie’2012 for preparing a cell composition comprising LSCs and LECs at a ratio within the claimed ratio range of 1:5 to 5:1 and thrombin and fibrinogen at a ratio within the claimed ratio range of 1:5 to 5:1 for treatment of non-healing cornel epithelial defect or persistent corneal epithelial defect.
In particular, Xie’2011 teaches that the close association of limbal epithelial stem cells (LECs) and subjacent mesenchymal cells (LSCs) is crucial for promoting epithelial growth (see abstract). Xie’2011 teaches mixing corneolimbal epithelial cells with collagenase digested human limbal cells at a ratio of 1: 2 and seeded at 4x104 cells/cm2 (see p. 1877-1881).
Zhang teaches a method of preparing a cell composition comprising a plurality of limbal stem cells and a plurality of limbal corneal epithelial cells for treating different ocular damage or diseases or ocular surface impairment including corneal ulcers including stromal ulceration, peripheral ulcerative or inflammatory keratitis, comprising obtaining cultured limbal stem cells (LSCs) which comprise limbal stromal stem cells (LSSCs) and limbal epithelial stem cells (LESCs), dissociating to single cells, placing the isolated LCSs in and/or on a matrix or extracellular matrix to form 3D cell culture and culturing LSCs on a tissue base in an enriched medium or in a LSC differentiation medium to differentiate LSCs to corneal epithelial cells (CECs), wherein the matrix or extracellular matrix includes fibrinogen and thrombin and wherein the tissue base includes a fibrin gel comprising corneal stromal fibroblasts, derivatives of mesenchymal tissue, and epithelial cells, such as corneal epithelial cells (see paragraphs [0105]; [0140]; [0144]; [0148]; [0150]-[0153]; [0127]; [0250]-[0253]; [0255]-[0256]; [0162]-[0165]; [0181]-[0187]; [0225]; [0209]-[0237]). Zhang teaches that the LSCs express PAX6, ABCG2, CK3+12 (K3 and K12) (see paragraphs [0105]; [0140]; [0144]; [0148];[0162]). Zhang also teaches 3D differentiation by embedding dissociated single stem cells in Matrigel® at 2x104 cells/50ul gel and that 3-D structures were formed after 14-18 day culture in a differentiation medium CnT-30 (limbal stem cell differentiation) (see paragraph [290]). Zhang also teaches cell transplantation by using 5x105 rabbit GFP-labeled LSCs, PAX6+ SESCs or shPAX6 LSCs cells mixed with fibrin (25 mg/ml) and thrombin (25 U/ml) (i.e. fibrin: thrombin=1:1) and seeded onto the exposed stromal bed of a recipient cornea and limbal area (see paragraph [0311]).
Funderburgh teaches limbal stromal stem cells expressing ABCG2, PAX6 (p. 114, figure 1; p. 115, 1st col. section C. Tissue localization of stromal stem cells). Funderburgh teaches that the proximity of corneal stromal stem cells (CSSCs) and limbal epithelial stem cells (LESCs) in vivo suggests the possibility that each of these populations provides symbiotic support for maintenance of the stem cell phenotype of the other (see p. 117, 1st col., lines 13-16). Funderburgh teaches that in vitro, limbal fibroblasts supported expansion of LESCs better than 3T3 cells or scleral fibroblasts, and this ability was enhanced by expansion of the CSSCs in culture conditions that maintain the stem-like phenotype of the CSSCs. When CSSCs and LESCs were co-isolated in clusters using collagenase digestion, the LESCs expanded more rapidly and formed more holoclones, than without the niche cells (see p. 116, 1st col., D. Function of Corneal stromal stem cells in vivo) and that CSSCs in vitro can produce collective tissue in composition and structure to that of human stroma and can be used for corneal bioengineering applications (p. 118, 1st co., IV. Summary and Conclusions).
A person of ordinary skill in the art would have recognized that selecting and applying the known LSCs expressing CK3+12, ABCG2, PAX6 and VIMENTIN, the known composition comprising LSCs and LECs, the importance of close association of LSCs and LECs for promoting epithelial growth and the known technique of transplanting a composition comprising LSCs and LECs on the corneal or ocular surface of an individual disclosed by Xie’2011, Zhang and Funderburgh to the method of Xie’2012 would have yielded the predictable result of preparing a cell composition for use in treating non-corneal epithelial defect or persistent corneal epithelial defect by mixing a plurality of LSCs and a plurality of LECs at a ratio of 1:4 in the composition to generate a mixed population of cells wherein the LSCs express CK3+12, ABCG2, PAX6 and VIMENTIN and wherein the composition further comprises thrombin and fibrinogen at a ratio of 1:1, and resulted in better production of a cell composition comprising LSCs and LECs for use in treating non-corneal epithelial defect or persistent corneal epithelial defect and better formation of limbal epithelial tissue and integration into the recipient cornea and limbal area.
Using or transplanting the known LSCs expressing CK3+12, ABCG2, PAX6 and VIMENTIN, the known composition comprising LSCs and LECs on the corneal or ocular surface of an individual and the importance of close association of LSCs and LECs for promoting epithelial growth disclosed by Xie’2011, Zhang and Funderburgh in the method of Xie’2012 would expand application of the method of Xie’2011, and produce and integrate limbal epithelial tissue into the recipient cornea and limbal area, and would increase patient’s satisfaction with recommended treatment of limbal epithelial stem cell defect or ocular diseases using a cell composition comprising LSCs and LECs.
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select and apply the known LSCs expressing CK3+12, ABCG2, PAX6 and VIMENTIN, the known composition comprising LSCs and LECs, the importance of close association of LSCs and LECs for promoting epithelial growth and the known technique of transplanting a composition comprising LSCs and LECs on the corneal or ocular surface of an individual disclosed by Xie’2011, Zhang and Funderburgh to the method of Xie’2012 to transplant and layer the composition comprising LSCs and LECs on the corneal or ocular surface of an individual, and yield the predictable result of better generation and integration of limbal epithelial tissue into the recipient cornea and limbal area. See KSR International Co. v. Teleflex Inc. 82 USPQ2d 1385 (2007); In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980); In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960); Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992), Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) and In re Kahn, 441 F.3d 977, 986, 78 USPQ2d 1329, 1335 (Fed. Cir. 2006) and also see MPEP § 2143. 01-I, MPEP § 2144.06 and MPEP §2144.07.
Accordingly, the rejection of claims 12, 32 and 34-35 under 35 U.S.C. 103 as being unpatentable over Xie’2012 in view of Xie’2011, Zhang and Funderburgh is maintained.
ii. Applicant cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). For the rejection of claims 24, 27 and 29, Funderburgh, Deng and Basu are cited to support the limitation the benefits of including LSCs and fibrinogen and thrombin in cell composition to provide rapid expansion and development of LECs and for use in corneal bioengineering applications.
In this case, While Xie’2012, Xie’2011, Zhang and Funderburgh do not teach layering the composition on the corneal or ocular surface of an individual, or steps of removing a portion of the limbal derived epithelial cells and differentiating the portion into limbal derived stromal cells as in claims 27 and 29, Funderburgh, Deng and Basu teach these limitations and provide motivation and an expectation of success because Deng and Basu teach a cell composition comprising two layers: LECs and LSCs and the benefits of including LSCs and fibrinogen and thrombin in cell composition to provide rapid expansion and development of LECs and for use in corneal bioengineering applications.
Funderburgh teaches that the proximity of corneal stromal stem cells (CSSCs) and limbal epithelial stem cells (LESCs) in vivo suggests the possibility that each of these populations provides symbiotic support for maintenance of the stem cell phenotype of the other (see p. 117, 1st col., lines 13-16).
Deng teaches a method of preparing a multilayer cell composition comprising: disposing human limbal stem cells (LSCs) including human limbal epithelial stem cells (LECs) in the first cell culture compartment, disposing human feeder cells including human limbal stromal stem cells (LSCs) in the second cell culture compartment, wherein the human feeder cells include limbal stromal cells (LSCs) including limbal stromal mesenchymal stem cells(LSMSCs) or human limbal fibroblasts (HLFs), wherein the human feeder cells are below the human limbal stem cells (LSCs), which are related to instant claims (see [0016]; [0011]-[0016]; [0032]-[0039]; [0041]; [0077]-[0089]; Examples 1-2). Deng also teaches steps of harvesting the limbal derived epithelial cells; removing a portion of the limbal derived epithelial cells and differentiating the portion into limbal derived stromal cells as in claims 27-28 (see paragraphs [0016]; [0032]-[0034]
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Basu teaches a cell culture of collagenase treated limbal biopsies comprising both epithelial and mesenchymal stem cells (p. 2, figure 1). Basu also teaches human limbal biopsy-derived stromal stem cells (LBSCs) embedded in a fibrin gel to the surface of a healing mouse wound by applying 5x104 LBSCs in a solution of fibrinogen (p. 2, 2nd col. Human LBSCs engraft in murine cornea in vivo to p. 3; p. 1, 2nd col to p. 2, 2nd col. to p. 3; p.5-6, figures 4-6) and also teaches that after wounding, 0.5 ml of thrombin was added to the wound bed, followed immediately by 1 ml of fibrinogen (with or without LBSCs), and after 1 to 2 min, the fibrinogen had gelled, and a second round of thrombin and fibrinogen was added and the corneal epithelium closed the wound in 24-36 hours, which relates to preparing a multilayer composition comprising a uniform first layer: limbal derived stromal cells (LSCs) and thrombin; and a uniform second layer comprising limbal derived epithelial cells (LECs) and fibrinogen (see p. 8, 2nd col., Fibrin gel and LBSC application).
A person of ordinary skill in the art would have recognized that selecting and applying the known technique of preparing a multilayer cell composition comprising a first layer: LSCs and thrombin deposited on the corneal or ocular surface of an individual, and a second layer: LECs and fibrinogen, wherein the second layer is deposited directly over the first layer and the known steps of removing a portion of the limbal derived epithelial cells and differentiating the portion into limbal derived stromal cells as in claims 27 and 28 disclosed by Funderburgh, Deng, and Basu to the method of Xie’2012, Xie’2011, Zhang and Funderburgh would have yielded the predictable result of preparing a multilayer cell composition comprising a first layer: LSSCs and thrombin deposited on the corneal or ocular surface of an individual, and a second layer: LESCs and fibrinogen, wherein the second layer is deposited directly over the first layer, and resulted in an improved method of preparing a multilayer cell composition comprising a first layer: LSCs and thrombin deposited on the corneal or ocular surface of an individual, and a second layer: LECs and fibrinogen, wherein the second layer is deposited directly over the first layer, and wherein the LSCs express CK3+12, ABCG2, PAX6 and VIMENTIN.
Using and layering a cell composition comprising a first layer: LSCs and thrombin deposited on the corneal or ocular surface of an individual, and laying a second layer: LECs and fibrinogen, wherein the second layer is deposited directly over the first layer and wherein the LSCs express CK3+12, ABCG2, PAX6 and VIMENTIN disclosed by Deng and Basu in the method of Xie’2012, Xie’2011, Zhang and Funderburgh would expand application of the method of Xie’2012, Xie’2011, Zhang and Funderburgh, and provide benefits of rapid expansion and development of LECs and for treating non-corneal epithelial defect or persistent corneal epithelial defect and better formation of limbal epithelial tissue and integration into the recipient cornea and limbal area, and would also increase patient’s satisfaction with recommended treatment of using a multi-layer cell composition for producing limbal epithelial tissue and treatment of non-corneal epithelial defect or persistent corneal epithelial defect.
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select and apply the known technique of laying a cell composition comprising a first layer: LSCs and thrombin deposited on the corneal or ocular surface of an individual, and a second layer: LECs and fibrinogen, wherein the second layer is deposited directly over the first layer and the known steps of removing a portion of the limbal derived epithelial cells and differentiating the portion into limbal derived stromal cells as in claims 24, 27 and 28 disclosed by Funderburgh, Deng, and Basu to the method of Xie’2012, Xie’2011, Zhang and Funderburgh to layer and prepare and generate a multiplayer cell composition, and yield the predictable result of layering and preparing a cell composition comprising a first layer: LSCs and thrombin deposited on the corneal or ocular surface of an individual, and a second layer: LECs and fibrinogen, wherein the second layer is deposited directly over the first layer with the claimed ratios, and provide rapid expansion and development of LECs and for treating non-corneal epithelial defect or persistent corneal epithelial defect and better formation of limbal epithelial tissue and integration into the recipient cornea and limbal area. See KSR International Co. v. Teleflex Inc. 82 USPQ2d 1385 (2007); In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980); In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960); Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992), Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) and In re Kahn, 441 F.3d 977, 986, 78 USPQ2d 1329, 1335 (Fed. Cir. 2006) and also see MPEP § 2143. 01-I, MPEP § 2144.06 and MPEP §2144.07.
Accordingly, the rejection of claims 24, 27 and 29 under 35 U.S.C. 103 as being unpatentable over Xie’2012 in view of Xie’2011, Zhang and Funderburgh, and further in view of Deng and Basu is maintained.
iii. Applicant cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). For the rejection of claims 12-13, and 30, Claeyssens, Frank and Omoto are cited to support the claimed range of 4000-5000 cells/ul (=4-5x106/ml) as in claim 13 and 15 or a ratio of cell range of LSCs to LECs or a ratio of thrombin to fibrinogen that is exactly identical to the claimed range of 1:5 to 5:1 as in claim 12 or 100ul of LSCs and 200ul of LECs combined with 50ul thrombin and 50ul fibrinogen as in claim 30.
While Xie’2012, Xie’2011, Zhang, Funderburgh, Deng and Basu do not teach cell ranges that are exactly identical to the claimed ranges, Claeyssens, Frank and Omoto teach these limitations and provide motivation and an expectation of success because Claeyssens, Frank and Omoto teach different cell ranges and ratios that are either within or overlapping the claimed ranges.
Claeyssens teaches an electrospun scaffold comprising limbal stem cells and mesenchymal stem cells for treatment of ocular injury (see paragraphs [0030]-[0033], [0107]-[0108]; claims 29-38), and also teaches that rabbit limbal fibroblasts were seeded on the scaffolds at a concentration of 1x105cells/ring, 8x104 cells/well and 25x104 or 5x104 cells and epithelial cells were seeded at a concentration of 5x104 cells/ring or 5x104 cells (i.e. 2:1 or 1:1 or 5:1 or 1.6:1) (see paragraphs [0168]; [0139]-[0142]) and microfabricated scaffolds treated with 10ul fibrin +10ul thrombin (see paragraph [0170]).
Frank teaches 1-107 cells, 10-107, 10-106, 10-105,10-104, 10-102, 10, 102, 103, 104, 105, 106, 107 or more of ABCB5(+) limbal stem cells (LSCs) including LESCs and LSSCs and ABCB5(+) retinal epithelial stem cells are prepared and administered in a form of preparation or graft for treatment of limbal stem cell deficiency (LSCD) or ocular diseases (col. 9, lines 1-30; 11, lines 1-39).
Omoto teaches the use of a density of 105 cells/well, 2.5x104cells/cm2 and 1000 human limbal epithelial cells (see p. 5, 1st col), and also teaches engineering of human or rabbit epithelial cell sheets by coating cell culture inserts with 300ul fibrin, seeding 5x105 feeder cells at the bottom of well and adding 2x104 cells/cm2 human limbal epithelial cells (i.e. 25:1) for transplantation (see p. 5, 2nd col. 2nd paragraph).
A person of ordinary skill in the art would have recognized that selecting and applying the known cell range (i.e. 4000-5000 cells/ul=4-5x106/ml), the known ratio of LSCs to LECs, the known ratio of thrombin to fibrinogen (i.e. 1:5 to 5:1) for treatment of limbal stem cell deficiency (LSCD) or specific ocular diseases and the known technique disclosed by Claeyssens, Frank and Omoto to the method of Xie’2012, Xie’2011, Zhang, Funderburgh, Deng and Basu would have yielded the predictable result of generation of a multilayer cell composition comprising a first layer: LSCs and thrombin deposited on the corneal or ocular surface of an individual and a second layer: LECs and fibrinogen, wherein the second layer is deposited directly over the first layer with the claimed cell ranges and ratios for thrombin to fibrinogen.
The use of the known cell range of 4000-5000 cells/ul, the known ratio of 1:5 to 5:1 for the LSCs to LECs, the known ratio of 1:5 to 5:1 for the thrombin to fibrinogen for treatment of limbal stem cell deficiency (LSCD) or specific ocular diseases and the known technique disclosed by Claeyssens, Frank and Omoto in the method of Xie’2012, Xie’2011, Zhang, Funderburgh, Deng and Basu would expand application of the method of Xie’2012, Xie’2011, Zhang, Funderburgh, Deng and Basu, and generate a multilayer cell composition comprising a first layer: LSCs and thrombin deposited on the corneal or ocular surface of an individual, and a second layer: LECs and fibrinogen, wherein the second layer is deposited directly over the first layer with the claimed ratios, and provide rapid expansion and development of LECs for treating non-corneal epithelial defect or persistent corneal epithelial defect and better formation of limbal epithelial tissue and integration into the recipient cornea and limbal area, and for treatment of limbal stem cell deficiency (LSCD) or specific ocular diseases.
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select and apply the known cell range of 4000-5000 cells/ul, the known ratio of 1:5 to 5:1 for the LSCs to LECs, the known ratio of 1:5 to 5:1 for the thrombin to fibrinogen for treatment of limbal stem cell deficiency (LSCD) or specific ocular diseases and the known technique disclosed by Claeyssens, Frank and Omoto to the method of Xie’2012, Xie’2011, Zhang, Funderburgh, Deng and Basu to generate a multilayer cell composition comprising a first layer: LSCs and thrombin deposited on the corneal or ocular surface of an individual, and a second layer: LECs and fibrinogen, wherein the second layer is deposited directly over the first layer with the claimed ratios, and yield the predictable result of generating a multilayer cell composition comprising a first layer: LSCs and thrombin deposited on the corneal or ocular surface of an individual, and a second layer: LECs and fibrinogen, wherein the second layer is deposited directly over the first layer with the claimed ratios; and provide rapid expansion and development of LECs for treating non-corneal epithelial defect or persistent corneal epithelial defect and better formation of limbal epithelial tissue and integration into the recipient cornea and limbal area, and for treatment of limbal stem cell deficiency (LSCD) or specific ocular diseases. See KSR International Co. v. Teleflex Inc. 82 USPQ2d 1385 (2007); In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980); In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960); Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992), Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) and In re Kahn, 441 F.3d 977, 986, 78 USPQ2d 1329, 1335 (Fed. Cir. 2006) and also see MPEP § 2143. 01-I, MPEP § 2144.06 and MPEP §2144.07.
Further, routine optimization of cell ranges of LSCs to LECs or ratios of thrombin and fibrinogen disclosed by the method of Xie’2012, Xie’2011, Zhang, Funderburgh, Deng and Basu would have led to the claimed range of 4000-5000 cells/ul=4-5x106/ml or the claimed ratio of cell range of LSCs to LECs at 1:5 to 5:1 or the ratio range of thrombin to fibrinogen at 1:5 to 5:1 for treatment of limbal stem cell deficiency (LSCD) or specific ocular diseases because Claeyssens, Frank and Omoto teach different cell ranges and ratios are either within or overlapping the claimed ranges including 1x105cells/ring, 8x104 cells/well and 25x104 or 5x104 cells and epithelial cells were seeded at a concentration of 5x104 cells/ring or 5x104 cells (i.e. 2:1 or 1:1 or 5:1 or 1.6:1), 1-107 cells, 10-107, 10-106, 10-105,10-104, 10-102, 10, 102, 103, 104, 105, 106, 107 or more of ABCB5(+) limbal stem cells including LECs and LSCs and ABCB5(+) retinal epithelial stem cells are prepared and administered in a form of preparation or graft or engineering of human or rabbit epithelial cell sheets by coating cell culture inserts with 300ul fibrin, seeding 5x105 feeder cells at the bottom of well and adding 2x104 cells/cm2 human limbal epithelial cells (i.e. 25:1), which achieve a multilayer cell composition comprising two layers: LECs and LSCs mixed with fibrinogen and thrombin for treatment of ocular injury or transplantation or ocular disease desired in Xie’2012, Xie’2011, Zhang, Funderburgh, Deng and Basu. The person of ordinary skill in the art would have found it obvious to optimize within the range taught by Claeyssens, Frank and Omoto because Claeyssens, Frank and Omoto teach that this entire range can form the claimed multilayer cell composition for treatment of ocular injury or transplantation or ocular disease, and also teaches how to optimize the multilayer cell composition comprising two layers: LESCs and LSSCs mixed with fibrinogen and thrombin and the cell ranges and ratios for LESCs and LSSCs and the ratios for fibrinogen and thrombin.
Note 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.” See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)”; “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.” see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969); Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert.denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997). See MPEP § 2144.05.
Accordingly, the rejection of claims 12-13, and 30 under 35 U.S.C. 103 as being unpatentable over Xie’2012 in view of Xie’2011, Zhang, Funderburgh, Deng and Basu, and further in view of Claeyssens, Frank and Omoto is maintained.
Conclusion
8. NO CLAIM IS ALLOWED.
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Chang-Yu Wang
December 20, 2025
/CHANG-YU WANG/Primary Examiner, Art Unit 1675
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