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 .
Election/Restrictions
Claim 46 had been amended on 04/29/2024 to remove recitation of the elected c-Fn antibody species P1H11. Thus, claim 46 is withdrawn from consideration as being directed to a non-elected species set forth in the Response to Election/Restriction received 09/13/2022.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 47 and 48 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 47 (which depends on claim 40) recites that the assay includes an incubation protocol that comprise a 1.5-minute incubation of sample with antibody solution, followed by mixing of the immunocomplex with c-Fn biotin coupled streptavidin paramagnetic particles (PMP). It is unclear if the 1.5 minute incubation of sample with antibody solution is part of the mixing step (b) recited in claim 40.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 47 and 48 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 47 (which depends on claim 40) recites that the assay includes an incubation protocol that comprise a 1.5-minute incubation of sample with antibody solution, followed by mixing of the immunocomplex with c-Fn biotin coupled streptavidin paramagnetic particles (PMP). It is unclear if the 1.5 minute incubation of sample with antibody solution is part of the mixing step (b) recited in claim 40. Further, the term “antibody solution” does not appear to be specifically defined in the specification; however, the “antibody solution” used in the competitive assay in Example 1 includes PF46 anti-c-Fn monoclonal antibody with goat anti-mouse IgG (Fab’ specific) ALP in PBS pH 6 with 0.1% prionex and 0.02% Tween 20 whereas the “antibody solution” used in the sandwich assay in Example 2 includes IgG-biotin and RIgG-ALP in Qualigen antibody solution containing PBS with stabilizers and 0.05% Tween 20. As such, claims 47 and 48 appear to broaden the scope of claim 40. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 40, 42, 43 49, 54, and 56 are rejected under 35 U.S.C. 103 as being unpatentable over Davalos et al (US7634360B2, of record), hereinafter Davalos in view of Livant (WO2002057786A2, of record), and Richardson et al (Richardson, J., P. Hawkins, and R. Luxton. "The use of coated paramagnetic particles as a physical label in a magneto-immunoassay." Biosensors and Bioelectronics 16.9-12 (2001): 989-993), hereinafter Richardson, as evidenced by Cox et al (Cox et al. Immunoassay Methods. 2012 May 1 Assay Guidance Manual [Internet]. Bethesda (MD): Eli Lilly & Company and the National Center for Advancing Translational Sciences; 2004), hereinafter Cox.
Davalos discloses methods for the diagnosis and evaluation of stroke or determining the risk of hemorrhagic transformation in stroke patients after thrombolytic therapy using a rapid assay comprising the steps of obtaining a test sample from the subject; forming a complex between an antibody probe to cellular fibronectin (c-Fn) and cFn present in the test sample; measuring the amount of the complex formed, determining the amount of c-Fn in the sample; and determining the presence or future risk of stroke or hemorrhagic transformation in the subject when the level of c-Fn in the test sample is greater than 3.6 ug/mL, which falls within the claimed range of 0-20 mg/mL (Abstract and Claim 1). The rapid assay can determine the level of a marker such as c-Fn in sample in under 30 minutes (or under 15 minutes) (Column 68, Ln. 54-67 to Column 69, Ln. 1-7). The “test sample” can be blood, serum, or plasma (Column 7, Ln. 11-22). In order to form a complex between the antibody probe and c-Fn in the test sample, the test sample would necessarily have to be mixed with the antibody probe. The presence or amount of a marker such as cellular fibronectin in a test sample can be measured via an immunoassay using labeled anti-c-Fn antibodies in a sandwich, competitive, or non-competitive format to generate a signal indicative of the level of c-Fn present in the sample. Any suitable immunoassay can be used such as enzyme linked immunoassay (ELISA), radioimmunoassay, competitive assay or the like (Col. 52, Ln. 21-41). In general, immunoassays involve the steps of mixing, forming, and detecting as evidenced by Cox; so it is understood that the rapid assay that can be performed under 30 minutes (or under 15 minutes) includes the mixing, forming, and detecting steps. Direct labels include fluorescent or luminescent tags, metals, dyes, radionuclides, and the like, attached to the antibody. Indirect labels include various enzymes well known in the art, such as alkaline phosphatase, horseradish peroxidase and the like. Further, one of ordinary skill in the art know several methods and devices for the detection and analysis of the markers of the instant invention Col. 52, Ln. 42-67 to Col. 53, Ln. 1-8). Suitable detection reagents are well known in the art as exemplified by radioactive, enzymatic or otherwise chromogenic ligands, which are typically employed in association with the antigen and/or antibody, or in association with a secondary antibody having specificity for the primary antibody (Col. 54, Ln. 1-14).
Davalos does not teach the that a) the anti-c-Fn antibody used is P1H11, wherein the anti-c-Fn antibody binds to an epitope of c-Fn having the amino acid sequence of SEQ ID NO: 4 with an affinity at least 100-fold greater than it binds to plasma fibronectin or b) the magnetic particles are paramagnetic particles.
However, Livant teaches the use of the monoclonal anti-fibronectin antibody P1H11 to detect fibronectin in plasma samples (see Example 19 on Page 54). Further, as evidenced by the Affidavit/Declaration supplied on 12/16/2020, the anti-cFn antibody P1H11 was commercially available prior to the effective filing date of the instantly claimed invention (see Attachments A and B). Per the instant claims, the anti-cFn antibody P1H11 necessarily has the functional property of binding to c-Fn with an affinity at least 100-fold greater than it binds to plasma fibronectin and binds to a portion of c-Fn having the amino acid sequence of SEQ ID NO: 4. Given that Affinity Life Sciences, Inc. sold P1H11 as a cellular fibronectin antibody (as opposed to a plasma fibronectin antibody or simply a fibronectin antibody) suggests that P1H11 is more specific for cellular fibronectin and thus would have greater binding affinity for cFn compared to plasma fibronectin.
Richardson further teaches that coated paramagnetic particles (e.g. streptavidin coated paramagnetic particles) can be used as physical labels (conjugated to antibody or its antigen) in an immunoassay and detected using a suitable magnetic detector (Abstract; Introduction, last paragraph; Results and Discussion, first paragraph). Paramagnetic particles used as labels in an immunoassay have advantages over traditional labels such as radioisotopes, enzymes, and fluorescent labels. In particular, paramagnetic particles are physical labels of great mass, do not decay or degrade, and cannot be denatured or neutralized. The signal from the label is also rapidly measured (requiring just 10 s) (Page 992, Left Column under Results and Discussion).
It would have been obvious to one of ordinary skill in the art to modify the method of determining the level of human c-Fn in a sample obtained from a human subject disclosed by Davalos such that the c-Fn antibody used is P1H11 and the label is a paramagnetic particle. One of ordinary skill in the art would have been motivated to do so since the commercially available anti-cFn antibody P1H11 of Livant also has the same function and can be used for the same purpose (i.e. binding to cellular fibronectin) as an anti-cFn antibody used in the rapid assay disclosed by Davalos. An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213USPQ 532 (CCPA 1982). Further, paramagnetic particles used as labels in an immunoassay have advantages over traditional labels: they are physical labels of great mass, do not decay or degrade, cannot be denatured or neutralized, and rapidly detected (requiring just 10 s) (Page 992, Left Column under Results and Discussion). ). Lastly, "[w]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). In general, immunoassays involve the steps of mixing, forming, and detecting as evidenced by Cox (see Basic Steps for Developing and Running an Immunoassay); so it is understood that the rapid assay that can be performed under 30 minutes (or under 15 minutes) includes the mixing, forming, and detecting steps. It would have been prima facie obvious to one of ordinary skill in the art to determine by routine experimentation the optimum timing for the obtaining step such that entire method of determining c-Fn in a sample using the rapid assay disclosed by Davalos can be achieved within 60 minutes or 20 minutes. Therefore, artisans would expect that the anti-cFn antibody P1H11 can be used in the method of determining the level of human c-Fn in a sample obtained from a human subject disclosed by Davalos.
2. Claims 41, 53, 55, 57, 58, and 59 are rejected under 35 U.S.C. 103 as being unpatentable over Davalos in view Livant and Richardson as evidenced by Cox, as applied to claims 40, 42, 43 49, 54, and 56, and further in view of Naselli et al (Naselli, Angelo, et al. "Effect of age, family history of prostate cancer, prostate enlargement and seasonality on PSA levels in a contemporary cohort of healthy Italian subjects." The International journal of biological markers 26.2 (2011): 102-107).
The teachings of Davalos in view of Livant and Richardson as evidenced by Cox have been discussed above and differ from the instantly claimed invention in which the following is not specifically taught: a) a rapid assay having a wash step between the forming and detecting steps; b) a rapid assay having the specific timing for mixing, forming, washing, and detecting steps recited in the claims, wherein the immunocomplex is mixed with coated paramagnetic particles in a sandwich assay format ; c) a rapid assay in which the antibody is not required to be fixed to a solid matrix to immunoreact with c-Fn in the test sample; and d) a rapid assay which is a fluid assay having paramagnetic beads free flowing in liquid media.
However, Naselli teaches the use of the FastPack® immunoassay and FastPack® IP System, a custom-designed office analyzer which features one-touch operation to perform complex quantitative immunoassays based on the sandwich principle, to measure a specific antigen (in this case, prostate-cancer antigen, or PSA) (see first paragraph on Page 103). The FastPack® IP System is a fully automated 12- minute quantitative immunoassay analyzer (see FastPack® IP system product specifications, OA. Appendix). The FastPack® IP system is also a fluidic test (there are no physical mediums, e.g. sample pad, conjugate pad, and lateral flow strip) see Pages 11-12 of the Specification); thus all reagents, including the paramagnetic particles/beads are free flowing in liquid media per claim 53. The FastPack® immunoassay of Naselli (see FastPack® Total PSA immunoassay for Basic Test Principle, OA.Appendix) includes the following steps with the approximate timing of each step as described in Table 2 of the Drawings filed 05/18/2020 provided:
1) primary incubation in which the specimen and antibody solution (mixture of biotinylated monoclonal antibody and monoclonal antibody labeled with phosphatase) react to form a sandwich complex (0 to 10 minutes). Thus, the antibody does not have to be fixed to a solid matrix to immunoreact with c-Fn in the sample;
2) secondary incubation in which a streptavidin-coated paramagnetic particle solution is added to the reaction mixture and the sandwich complex is bound to the solid phase via the interaction of biotin and streptavidin (~ 4 minutes);
3) removal of unbound materials in which the paramagnetic particles are washed with wash buffer to remove unbound materials (~2.5 minutes); and
4) substrate addition and detection in which a chemiluminescent substrate is added to the solid-phase bound complex and results in chemiluminescence measured (~ 1 min).
If the FastPack® IP system delivers results in 12 minutes or less, than the first incubation step (mixing sample with antibody) would necessarily have to occur in ~5 minutes or less which would encompass an incubation time of 1.5 minutes set forth in claim 47.
It would have been obvious to one of ordinary skill in the art to modify the method of determining the level of human c-Fn in a sample obtained from a human subject disclosed by Davalos such that the FastPack® immunoassay protocol and FastPack® IP system of Naselli are adapted or modified for use as the rapid assay in Davalos, wherein 1) the steps of mixing, forming, washing, and detecting occurs in the timeframes set forth in the claims. One of ordinary skill in the art would have been motivated to do so since Davalos teaches that any suitable device and immunoassay can be used for detection of analytes in a sample; and the commercially available FastPack® immunoassay protocol and IP system disclosed by Naselli can be adapted or modified for the detection of c-Fn in a sample. Therefore, artisans would expect that the FastPack® immunoassay protocol and FastPack® IP system of Naselli can be adapted or modified for use as the rapid assay in Davalos, wherein the steps of mixing, forming, washing, and detecting occurs in the timeframes set forth in the claims.
3. Claims 47 and 48 are rejected under 35 U.S.C. 103 as being unpatentable over Davalos in view Livant and Richardson as evidenced by Cox, as applied to claims 40, 42, 43 49, 54, and 56, and further in view of Naselli et al (Naselli, Angelo, et al. "Effect of age, family history of prostate cancer, prostate enlargement and seasonality on PSA levels in a contemporary cohort of healthy Italian subjects." The International journal of biological markers 26.2 (2011): 102-107) and Slagle et al (Slagle, Kirby M., and Saad J. Ghosn. "Immunoassays: tools for sensitive, specific, and accurate test results." Laboratory medicine 27.3 (1996): 177-183), hereinafter Slagle.
The teachings of Davalos in view of Livant and Richardson as evidenced by Cox have been discussed above and differ from the instantly claimed invention in that it is not taught the use of a rapid assay having an incubation step in which the sample is mixed with antibody solution followed by mixing of the immunocomplex formed with c-Fn biotin coupled streptavidin paramagnetic particles, wherein the mixing occurs within 5 minutes.
However, Naselli teaches the use of the FastPack® immunoassay and FastPack® IP System to measure a specific antigen (in this case, prostate-cancer antigen, or PSA) (see first paragraph on Page 103). The FastPack® IP System is a fully automated 12- minute quantitative immunoassay analyzer (see FastPack® IP system product specifications, OA. Appendix). The FastPack® immunoassay of Naselli (see FastPack® Total PSA immunoassay for Basic Test Principle, OA.Appendix) includes 1) a primary incubation in which the specimen and antibody solution (mixture of biotinylated monoclonal antibody and monoclonal antibody labeled with phosphatase) react to form a sandwich complex and 2) a secondary incubation in which a streptavidin-coated paramagnetic particle solution is added to the reaction mixture and the sandwich complex is bound to the solid phase via the interaction of biotin and streptavidin. Table 2 of the instant specification further provides the basic FastPack® assay protocol performed using the FastPack® IP tabletop analyzer and the approximate timing for each step, wherein the first incubation lasts 0 to 10 minutes and the second incubation lasts approximately 4 minutes.
Slagle further teaches that a competitive immunoassay relies on the competition between the antigen of interest (the analyte) and a constant amount of a similar but labeled antigen for a limited amount of specific antibody (Page 177, Para 3-4 on left column). Because the two antigens compete for the same antibody, the labeled antigen must react identically to the unlabeled one. Competitive immunoassays are highly sensitive, able to detect small amounts of analyte (3rd paragraph under “Competitive (Type II) Immunoassays”).
It would have been obvious to one of ordinary skill in the art to modify the method of determining the level of human c-Fn in a sample disclosed by Davalos such that the FastPack® immunoassay protocol and FastPack® IP system of Naselli are adapted for use as the rapid assay.
One of ordinary skill in the art would have been motivated to do so since Davalos teaches that any suitable device and immunoassay can be used for detection of analytes in a sample; and the commercially available FastPack® immunoassay and FastPack® IP system disclosed by Naselli can be modified for the detection of c-Fn in a sample. The biotin-labeled antibody can also be replaced with biotin-labeled antigen (c-Fn-biotin which are coupled to the streptavidin paramagnetic particles) in the FastPack® immunoassay to make a competitive assay (rather than a sandwich assay) since competitive assays are able to detect small amounts of analyte as taught by Slagle. While competitive immunoassays typically require a long incubation time (Slagle, last paragraph under “Competitive Type (II) Immunoassays”), the FastPack® IP system is able to deliver results in 12 minutes or less with the second incubation time (in which immunocomplexes are mixed with c-Fn biotin coupled streptavidin paramagnetic particles) lasts about 4 minutes as shown in Table 2 of the instant application’s Drawings. Therefore, artisans would expect that the FastPack® immunoassay protocol and FastPack® IP system of Naselli can be adapted or modified for use as the rapid assay in Davalos, wherein the assay has an incubation step in which the sample is mixed with antibody solution followed by mixing of the immunocomplex formed with c-Fn biotin coupled streptavidin paramagnetic particles within 5 minutes.
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 § 2146 et seq. 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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
4. Claims 40, 42, 43 49, 54, and 56 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 7,634,360 in view of in view of Davalos et al (US7634360B2, of record), hereinafter Davalos, Livant (WO2002057786A2, of record), and Richardson et al (Richardson, J., P. Hawkins, and R. Luxton. "The use of coated paramagnetic particles as a physical label in a magneto-immunoassay." Biosensors and Bioelectronics 16.9-12 (2001): 989-993), hereinafter Richardson.
The issued claims recite a method of determining risk of hemorrhage transformation in a human patient receiving tissue plasminogen activator therapy for ischemic stroke, comprising: identifying a patient suffering from ischemic stroke; providing the patient with tissue plasminogen activator (t-PA) therapy; obtaining a test sample from the patient, wherein the sample is a plasma sample; forming a complex between an antibody probe against cellular fibronectin (c-Fn) and c-Fn present in the test sample; measuring the amount of the complex formed and determining the amount of c-Fn in the sample; and determining the presence of or future risk for hemorrhage transformation in the patient when the level of c-Fn in the test sample is greater than 3.6 μg/mL (issued claims 1 and 8).
The issued claims do not teach a) the use of a rapid assay such as a sandwich assay using labeled antibody to determine the amount of c-Fn within 60 minutes (or within 20 minutes), b) the use of the anti-c-Fn antibody P1H11 as the anti-cFn antibody probe, and c) the use of paramagnetic particles as labels to measure/detect c-Fn in the sample.
However, Davalos discloses methods for the diagnosis and evaluation of stroke or determining the risk of hemorrhagic transformation in stroke patients after thrombolytic therapy using a rapid assay that can determine in under 30 minutes (or in under 15 minutes) The presence of or future risk for hemorrhage in the patient can be determined when the level of c-Fn in the test sample measured is greater than 3.6 μg/mL (Claims 1 and 8). The value of 3.6 μg/mL falls within the claimed range of 0-20 mg/mL.. The presence or amount cellular fibronectin in a test sample can be measured via an immunoassay using labeled anti-c-Fn antibodies in a sandwich, competitive, or non-competitive format to generate a signal indicative of the level of c-Fn present in the sample. The immunoassay can be any suitable immunoassay such as enzyme linked immunoassay (ELISA), radioimmunoassay, competitive assay or the like. Direct labels include fluorescent or luminescent tags, metals, dyes, radionuclides, and the like, attached to the antibody. Indirect labels include various enzymes well known in the art, such as alkaline phosphatase, horseradish peroxidase and the like. Further, one of ordinary skill in the art know several methods and devices for the detection and analysis of the markers of the instant invention. (Col. 52, Ln. 21-67 to Col. 53, Ln. 1-8). Suitable detection reagents are well known in the art as exemplified by radioactive, enzymatic or otherwise chromogenic ligands, which are typically employed in association with the antigen and/or antibody, or in association with a secondary antibody having specificity for the primary antibody (Col. 54, Ln. 1-14).
Livant further teaches the use of the monoclonal anti-fibronectin antibody P1H11 to detect fibronectin in plasma samples (see Example 19 on Page 54). Further, as evidenced by the Affidavit/Declaration supplied on 12/16/2020), the anti-cFn antibody P1H11 was commercially available prior to the effective filing date of the instantly claimed invention (see Attachments A and B). Per the instant claims, the anti-cFn antibody P1H11 necessarily has the functional property of binding to c-Fn with an affinity at least 100-fold greater than it binds to plasma fibronectin and binds to a portion of c-Fn having the amino acid sequence of SEQ ID NO: 4. Given that Affinity Life Sciences, Inc. sold P1H11 as a cellular fibronectin antibody (as opposed to a plasma fibronectin antibody or simply a fibronectin antibody) suggests that P1H11 is more specific for cellular fibronectin and thus would have greater binding affinity for cFn compared to plasma fibronectin.
Richardson further teaches that coated paramagnetic particles can be used as physical labels (conjugated to antibody or its antigen) in an immunoassay and detected using suitable magnetic detector (Abstract; Introduction, last paragraph; Results and Discussion, first paragraph). Paramagnetic particles used as labels in an immunoassay have advantages over traditional labels such as radioisotopes, enzymes, and fluorescent labels. In particular, paramagnetic particles are physical labels of great mass, do not decay or degrade, and cannot be denatured or neutralized. The signal from the label is also rapidly measured (requiring just 10 s) (Page 992, Left Column under Results and Discussion).
It would have been obvious to one of ordinary skill in the art to modify the method of the issued claims such that a) the rapid assay of Davalos such as a sandwich assay using labeled antibody is used to determine the presence of c-Fn within 60 minutes (or within 20 minutes), b) the anti-c-Fn antibody P1H11 is used as the anti-cFn antibody probe, and c) paramagnetic particles are used as labels to facilitate detection of c-Fn in the sample. One of ordinary skill in the art would have been motivated to do so since the rapid assay of Davalos, for example a sandwich assay using labeled antibody, can determine the presence or amount of c-Fn in a sample. The courts of have held that "[w]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). In general, immunoassays involve the steps of mixing, forming, and detecting as evidenced by Cox (see Basic Steps for Developing and Running an Immunoassay); so it is understood that the rapid assay that can be performed under 30 minutes (or under 15 minutes) includes the mixing, forming, and detecting steps. It would have been prima facie obvious to one of ordinary skill in the art to determine by routine experimentation the optimum timing for the obtaining step such that entire method of determining c-Fn in a sample using the rapid assay disclosed by Davalos can be achieved within 60 minutes or 20 minutes as claimed. In addition, the commercially available anti-cFn antibody P1H11 of Livant also has the same function and can be used for the same purpose (i.e. binding to cellular fibronectin) as an anti-cFn antibody used in the rapid assay disclosed by Davalos. An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213USPQ 532 (CCPA 1982). Lastly, paramagnetic particles used as labels in an immunoassay have advantages over traditional labels: they are physical labels of great mass, do not decay or degrade, cannot be denatured or neutralized, and rapidly detected (requiring just 10 s) (Page 992, Left Column under Results and Discussion). Therefore, artisans would expect that the method of the issued claims can be modified such that a) the rapid assay of Davalos such as a sandwich assay using labeled antibody is used to determine the presence of c-Fn within 60 minutes (or within 20 minutes), b) the anti-c-Fn antibody P1H11 is used as the anti-cFn antibody probe, and c) paramagnetic particles are used as labels to facilitate detection of c-Fn in the sample.
5. Claims 41, 53, 55, 57, 58, and 59 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 7,634,360 in view of Davalos, Livant and Richardson as evidenced by Cox, as applied to claims 40, 42, 43 49, 54, and 56, and further in view of Naselli et al (Naselli, Angelo, et al. "Effect of age, family history of prostate cancer, prostate enlargement and seasonality on PSA levels in a contemporary cohort of healthy Italian subjects." The International journal of biological markers 26.2 (2011): 102-107).
The teachings of issued claims in view of Davalos, Livant and Richardson as evidenced by Cox have been discussed above and differ from the instantly claimed invention in which the following is not specifically taught: a) a rapid assay having a wash step between the forming and detecting steps; b) a rapid assay having the specific timing for mixing, forming, washing, and detecting steps recited in the claims; c) a rapid assay in which the antibody is not required to be fixed to a solid matrix to immunoreact with c-Fn in the test sample; and d) a rapid assay which is a fluid assay having paramagnetic beads free flowing in liquid media.
However, Naselli teaches the use of the FastPack® immunoassay and FastPack® IP System, a custom-designed office analyzer which features one-touch operation to perform complex quantitative immunoassays based on the sandwich principle, to measure a specific antigen (in this case, prostate-cancer antigen, or PSA) (see first paragraph on Page 103). The FastPack® IP System is a fully automated 12- minute quantitative immunoassay analyzer (see FastPack® IP system product specifications, OA. Appendix). The FastPack® IP system is also a fluidic test (there are no physical mediums, e.g. sample pad, conjugate pad, and lateral flow strip) see Pages 11-12 of the Specification); thus all reagents, including the paramagnetic particles/beads are free flowing in liquid media per claim 53. The FastPack® immunoassay includes the following steps with the approximate timing of each step as described in Table 2 of the Drawings filed 05/18/2020 provided:
1) primary incubation in which the specimen and antibody solution (mixture of biotinylated monoclonal antibody and monoclonal antibody labeled with phosphatase) react to form a sandwich complex (0 to 10 minutes);
2) secondary incubation in which a streptavidin-coated paramagnetic particle solution is added to the reaction mixture and the sandwich complex is bound to the solid phase via the interaction of biotin and streptavidin (~ 4 minutes);
3) removal of unbound materials in which the paramagnetic particles are washed with wash buffer to remove unbound materials (~2.5 minutes); and
4) substrate addition and detection in which a chemiluminescent substrate is added to the solid-phase bound complex and results in chemiluminescence measured (~ 1 min) (see FastPack® Total PSA immunoassay product specification for basic Test Principle, OA.Appendix, of record).
If the FastPack® IP system delivers results in 12 minutes or less, than the first incubation step (mixing sample with antibody) would necessarily have to occur in ~5 minutes or less which would encompass an incubation time of 1.5 minutes set forth in claim 47.
It would have been obvious to one of ordinary skill in the art to modify the method of determining the level of human c-Fn in a sample obtained from a human subject disclosed by issued claims in view of Davalos, Livant, and Richardson such that the FastPack® immunoassay protocol and FastPack® IP system of Naselli are adapted or modified for use as the rapid assay in Davalos, wherein 1) the steps of mixing, forming, washing, and detecting occurs in the timeframes set forth in the claims. One of ordinary skill in the art would have been motivated to do so since Davalos teaches that any suitable device and immunoassay can be used for detection of analytes in a sample; and the commercially available FastPack® immunoassay protocol and IP system disclosed by Naselli can be adapted or modified for the detection of c-Fn in a sample. Therefore, artisans would expect that the FastPack® immunoassay protocol and FastPack® IP system of Naselli can be adapted or modified for determining the c-Fn in a sample in the method of the issued claims in view of Davalos, Livant, and Richardson, wherein the steps of mixing, forming, washing, and detecting occurs in the timeframes set forth in the claims.
6. Claims 47 and 48 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 7,634,360 in view of Davalos, Livant and Richardson as evidenced by Cox, as applied to claims 40, 42, 43 49, 54, and 56, and further in view of Naselli et al (Naselli, Angelo, et al. "Effect of age, family history of prostate cancer, prostate enlargement and seasonality on PSA levels in a contemporary cohort of healthy Italian subjects." The International journal of biological markers 26.2 (2011): 102-107) and Slagle et al (Slagle, Kirby M., and Saad J. Ghosn. "Immunoassays: tools for sensitive, specific, and accurate test results." Laboratory medicine 27.3 (1996): 177-183), hereinafter Slagle.
The teachings of the issued claims in view of Davalos, Livant and Richardson as evidenced by Cox have been discussed above and differ from the instantly claimed invention in that it is not taught the use of rapid assay having an incubation step in which the sample is mixed with antibody solution followed by mixing of the immunocomplex formed with c-Fn biotin coupled streptavidin paramagnetic particles, wherein the mixing occurs within 5 minutes.
However, Naselli teaches the use of the FastPack® immunoassay and FastPack® IP System to measure a specific antigen (in this case, prostate-cancer antigen, or PSA) (see first paragraph on Page 103). The FastPack® IP System is a fully automated 12- minute quantitative immunoassay analyzer (see FastPack® IP system product specifications, OA. Appendix). The FastPack® immunoassay of Naselli (see FastPack® Total PSA immunoassay for Basic Test Principle, OA.Appendix) includes 1) a primary incubation in which the specimen and antibody solution (mixture of biotinylated monoclonal antibody and monoclonal antibody labeled with phosphatase) react to form a sandwich complex and 2) a secondary incubation in which a streptavidin-coated paramagnetic particle solution is added to the reaction mixture and the sandwich complex is bound to the solid phase via the interaction of biotin and streptavidin. Table 2 of the instant specification further provides the basic FastPack® assay protocol performed using the FastPack® IP tabletop analyzer and the approximate timing for each step, wherein the first incubation lasts 0 to 10 minutes and the second incubation lasts approximately 4 minutes.
Slagle further teaches that a competitive immunoassay relies on the competition between the antigen of interest (the analyte) and a constant amount of a similar but labeled antigen for a limited amount of specific antibody (Page 177, Para 3-4 on left column). Because the two antigens compete for the same antibody, the labeled antigen must react identically to the unlabeled one. Competitive immunoassays are highly sensitive, able to detect small amounts of analyte (3rd paragraph under “Competitive (Type II) Immunoassays”).
It would have been obvious to one of ordinary skill in the art to modify the method of determining the level of human c-Fn in a sample obtained from a human subject disclosed by the issued claims in view of Davalos, Livant, and Richardson such that the FastPack® immunoassay protocol and FastPack® IP system of Naselli are adapted for use as the rapid assay. One of ordinary skill in the art would have been motivated to do so since Davalos teaches that any suitable device and immunoassay can be used for detection of analytes in a sample; and the commercially available FastPack® immunoassay and FastPack® IP system disclosed by Naselli can be modified for the detection of c-Fn in a sample. The biotin-labeled antibody can also be replaced with biotin-labeled antigen (c-Fn-biotin which are coupled to the streptavidin paramagnetic particles) in the FastPack® immunoassay to make a competitive assay (rather than a sandwich assay) since competitive assays are able to detect small amounts of analyte as taught by Slagle. While competitive immunoassays typically require a long incubation time (Slagle, last paragraph under “Competitive Type (II) Immunoassays”), the FastPack® IP system is able to deliver results in 12 minutes or less with the second incubation time (in which immunocomplexes are mixed with c-Fn biotin coupled streptavidin paramagnetic particles) lasting about 4 minutes as shown in Table 2 of the instant application’s Drawings. Therefore, artisans would expect that the FastPack® immunoassay protocol and FastPack® IP system of Naselli can be adapted to detect c-Fn in the method of the issued claims in view of Davalos, Livant, and Richardson, wherein the assay has an incubation step in which the sample is mixed with antibody solution followed by mixing of the immunocomplex formed with c-Fn biotin coupled streptavidin paramagnetic particles within 5 minutes.
7. Claims 40, 42, 43 49, 54, and 56 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 7,392,140 in view of in view of in view of Davalos et al (US7634360B2, of record), hereinafter Davalos, Livant (WO2002057786A2, of record), and Richardson et al (Richardson, J., P. Hawkins, and R. Luxton. "The use of coated paramagnetic particles as a physical label in a magneto-immunoassay." Biosensors and Bioelectronics 16.9-12 (2001): 989-993), hereinafter Richardson
The issued claims recite a method of determining presence or risk of cerebral injury in a human subject, the method comprising: obtaining a test sample from a human subject; analyzing the obtained test sample for presence or amount or both presence and amount of (1) cellular fibronectin and (2) one or more additional markers both proteomic and non-proteomic for, or mass spectrometry peak levels from, any of categories of apoptosis, cellular adhesion, cellular injury, coagulation, glial activation, inflammatory mediation, myelin breakdown, thrombosis, and vascular damage; and then correlating (1) the presence or amount of said cellular fibronectin and said one or more additional markers or peak levels, with (2) clinical patient information, other than the cellular fibronectin and said one or more makers or peak levels for cerebral injury, in order to deduce a probability of present or future risk or present and future risk of a cerebral injury for the subject; and then providing the deduced probability to a clinician who treats the cerebral injury in the human subject in accordance with the deduced probability (issued claim 1), wherein the cerebral injury is secondary brain edema or early growth of intracerebral hemorrhage (issued claim 2). The term “test sample” as used in this specification refers to a sample of bodily fluid obtained for the purpose of diagnosis, prognosis, or evaluation of a subject of interest, such as a patient.
The issued claims do not teach that a) the use of a rapid assay such as a sandwich assay using labeled antibody to analyze the presence or amount of c-Fn within 60 minutes (or within 20 minutes), b) the use of the anti-c-Fn antibody P1H11 as the anti-cFn antibody probe, and c) the use of paramagnetic particles as labels to measure/detect c-Fn in the sample.
However, Davalos discloses methods for the diagnosis and evaluation of stroke or determining the risk of hemorrhagic transformation in stroke patients after thrombolytic therapy using a rapid assay comprising the steps of obtaining a test sample from the subject; forming a complex between an antibody probe to cellular fibronectin (c-Fn) and cFn present in the test sample; measuring the amount of the complex formed, determining the amount of c-Fn in the sample; and determining the presence or future risk of stroke or hemorrhagic transformation in the subject when the level of c-Fn in the test sample is greater than 3.6 ug/mL, which falls within the claimed range of 0-20 mg/mL (Abstract and Claim 1). The rapid assay can determine the level of a marker such as c-Fn in sample in under 30 minutes (or under 15 minutes) (Column 68, Ln. 54-67 to Column 69, Ln. 1-7). The presence or amount of a marker such as cellular fibronectin in a test sample can be measured via an immunoassay using labeled anti-c-Fn antibodies in a sandwich, competitive, or non-competitive format to generate a signal indicative of the level of c-Fn present in the sample (Col. 52, Ln. 21-41). In general, immunoassays involve the steps of mixing, forming, and detecting as evidenced by Cox; so it is understood that the rapid assay that can be performed under 30 minutes (or under 15 minutes) includes the mixing, forming, and detecting steps. Direct labels include fluorescent or luminescent tags, metals, dyes, radionuclides, and the like, attached to the antibody. Indirect labels include various enzymes well known in the art, such as alkaline phosphatase, horseradish peroxidase and the like. Further, one of ordinary skill in the art know several methods and devices for the detection and analysis of the markers of the instant invention Col. 52, Ln. 42-67 to Col. 53, Ln. 1-8).
Livant further teaches the use of the monoclonal anti-fibronectin antibody P1H11 to detect fibronectin in plasma samples (see Example 19 on Page 54). Further, as evidenced by the Affidavit/Declaration supplied on 12/16/2020), the anti-cFn antibody P1H11 was commercially available prior to the effective filing date of the instantly claimed invention (see Attachments A and B). Per the instant claims, the anti-cFn antibody P1H11 necessarily has the functional property of binding to c-Fn with an affinity at least 100-fold greater than it binds to plasma fibronectin and binds to a portion of c-Fn having the amino acid sequence of SEQ ID NO: 4. Given that Affinity Life Sciences, Inc. sold P1H11 as a cellular fibronectin antibody (as opposed to a plasma fibronectin antibody or simply a fibronectin antibody) suggests that P1H11 is more specific for cellular fibronectin and thus would have greater binding affinity for cFn compared to plasma fibronectin.
Richardson further teaches that coated paramagnetic particles can be used as physical labels (conjugated to antibody or its antigen) in an immunoassay and detected using suitable magnetic detector (Abstract; Introduction, last paragraph; Results and Discussion, first paragraph). Paramagnetic particles used as labels in an immunoassay have advantages over traditional labels such as radioisotopes, enzymes, and fluorescent labels. In particular, paramagnetic particles are physical labels of great mass, do not decay or degrade, and cannot be denatured or neutralized. The signal from the label is also rapidly measured (requiring just 10 s) (Page 992, Left Column under Results and Discussion).
It would have been obvious to one of ordinary skill in the art to modify the method of the issued claims such that a) the rapid assay of Davalos such as a sandwich assay using labeled antibody is used to determine the presence of c-Fn within 60 minutes (or within 20 minutes), b) the anti-c-Fn antibody P1H11 is used as the anti-cFn antibody probe, and c) paramagnetic particles are used as labels to facilitate detection of c-Fn in the sample. One of ordinary skill in the art would have been motivated to do so since the rapid assay of Davalos, for example a sandwich assay using labeled antibody, can determine the presence or amount of c-Fn in a sample. The courts of have held that "[w]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). In general, immunoassays involve the steps of mixing, forming, and detecting as evidenced by Cox (see Basic Steps for Developing and Running an Immunoassay); so it is understood that the rapid assay that can be performed under 30 minutes (or under 15 minutes) includes the mixing, forming, and detecting steps. It would have been prima facie obvious to one of ordinary skill in the art to determine by routine experimentation the optimum timing for the obtaining step such that entire method of determining c-Fn in a sample using the rapid assay disclosed by Davalos can be achieved within 60 minutes or 20 minutes as claimed. In addition, the commercially available anti-cFn antibody P1H11 of Livant also has the same function and can be used for the same purpose (i.e. binding to cellular fibronectin) as an anti-cFn antibody used in the rapid assay disclosed by Davalos. An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213USPQ 532 (CCPA 1982). Lastly, paramagnetic particles used as labels in an immunoassay have advantages over traditional labels: they are physical labels of great mass, do not decay or degrade, cannot be denatured or neutralized, and rapidly detected (requiring just 10 s) (Page 992, Left Column under Results and Discussion). Therefore, artisans would expect that the method of the issued claims can be modified such that a) the rapid assay of Davalos such as a sandwich assay using labeled antibody is used to determine the presence of c-Fn within 60 minutes (or within 20 minutes), b) the anti-c-Fn antibody P1H11 is used as the anti-cFn antibody probe, and c) paramagnetic particles are used as labels to facilitate detection of c-Fn in the sample.
8. Claims 41, 47, 48, 53, 55, 57, 58, and 59 are rejected are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 7,392,140 in view of Davalos, Livant and Richardson as evidenced by Cox, as applied to claims 40, 42, 43 49, 54, and 56, and further in view of Naselli et al (Naselli, Angelo, et al. "Effect of age, family history of prostate cancer, prostate enlargement and seasonality on PSA levels in a contemporary cohort of healthy Italian subjects." The International journal of biological markers 26.2 (2011): 102-107).
The teachings of issued claims in view of Davalos, Livant and Richardson as evidenced by Cox have been discussed above and differ from the instantly claimed invention in which the following is not specifically taught: a) a rapid assay having a wash step between the forming and detecting steps; b) a rapid assay having the specific timing for mixing, forming, washing, and detecting steps recited in the claims; c) a rapid assay in which the antibody is not required to be fixed to a solid matrix to immunoreact with c-Fn in the test sample; and d) a rapid assay which is a fluid assay having paramagnetic beads free flowing in liquid media.
However, Naselli teaches the use of the FastPack® immunoassay and FastPack® IP System, a custom-designed office analyzer which features one-touch operation to perform complex quantitative immunoassays based on the sandwich principle, to measure a specific antigen (in this case, prostate-cancer antigen, or PSA) (see first paragraph on Page 103). The FastPack® IP System is a fully automated 12- minute quantitative immunoassay analyzer (see FastPack® IP system product specifications, OA. Appendix). The FastPack® IP system is also a fluidic test (there are no physical mediums, e.g. sample pad, conjugate pad, and lateral flow strip) see Pages 11-12 of the Specification); thus all reagents, including the paramagnetic particles/beads are free flowing in liquid media per claim 53. The FastPack® immunoassay includes the following steps with the approximate timing of each step as described in Table 2 of the Drawings filed 05/18/2020 provided:
1) primary incubation in which the specimen and antibody solution (mixture of biotinylated monoclonal antibody and monoclonal antibody labeled with phosphatase) react to form a sandwich complex (0 to 10 minutes);
2) secondary incubation in which a streptavidin-coated paramagnetic particle solution is added to the reaction mixture and the sandwich complex is bound to the solid phase via the interaction of biotin and streptavidin (~ 4 minutes);
3) removal of unbound materials in which the paramagnetic particles are washed with wash buffer to remove unbound materials (~2.5 minutes); and
4) substrate addition and detection in which a chemiluminescent substrate is added to the solid-phase bound complex and results in chemiluminescence measured (~ 1 min) (see FastPack® Total PSA immunoassay product specification for basic Test Principle, OA.Appendix, of record).
If the FastPack® IP system delivers results in 12 minutes or less, than the first incubation step (mixing sample with antibody) would necessarily have to occur in ~5 minutes or less which would encompass an incubation time of 1.5 minutes set forth in claim 47.
It would have been obvious to one of ordinary skill in the art to modify the method of determining the level of human c-Fn in a sample obtained from a human subject disclosed by issued claims in view of Davalos, Livant, and Richardson such that the FastPack® immunoassay protocol and FastPack® IP system of Naselli are adapted or modified for use as the rapid assay in Davalos, wherein 1) the steps of mixing, forming, washing, and detecting occurs in the timeframes set forth in the claims. One of ordinary skill in the art would have been motivated to do so since Davalos teaches that any suitable device and immunoassay can be used for detection of analytes in a sample; and the commercially available FastPack® immunoassay protocol and IP system disclosed by Naselli can be adapted or modified for the detection of c-Fn in a sample. Therefore, artisans would expect that the FastPack® immunoassay protocol and FastPack® IP system of Naselli can be adapted or modified for determining the c-Fn in a sample in the method of the issued claims in view of Davalos, Livant, and Richardson, wherein the steps of mixing, forming, washing, and detecting occurs in the timeframes set forth in the claims.
6. Claims 47 and 48 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 7,392,140 in view of Davalos, Livant and Richardson as evidenced by Cox, as applied to claims 40, 42, 43 49, 54, and 56, and further in view of Naselli et al (Naselli, Angelo, et al. "Effect of age, family history of prostate cancer, prostate enlargement and seasonality on PSA levels in a contemporary cohort of healthy Italian subjects." The International journal of biological markers 26.2 (2011): 102-107) and Slagle et al (Slagle, Kirby M., and Saad J. Ghosn. "Immunoassays: tools for sensitive, specific, and accurate test results." Laboratory medicine 27.3 (1996): 177-183), hereinafter Slagle.
The teachings of the issued claims in view of Davalos, Livant and Richardson as evidenced by Cox have been discussed above and differ from the instantly claimed invention in that it is not taught the use of rapid assay having an incubation step in which the sample is mixed with antibody solution followed by mixing of the immunocomplex formed with c-Fn biotin coupled streptavidin paramagnetic particles, wherein the mixing occurs within 5 minutes.
However, Naselli teaches the use of the FastPack® immunoassay and FastPack® IP System to measure a specific antigen (in this case, prostate-cancer antigen, or PSA) (see first paragraph on Page 103). The FastPack® IP System is a fully automated 12- minute quantitative immunoassay analyzer (see FastPack® IP system product specifications, OA. Appendix). The FastPack® immunoassay of Naselli (see FastPack® Total PSA immunoassay for Basic Test Principle, OA.Appendix) includes 1) a primary incubation in which the specimen and antibody solution (mixture of biotinylated monoclonal antibody and monoclonal antibody labeled with phosphatase) react to form a sandwich complex and 2) a secondary incubation in which a streptavidin-coated paramagnetic particle solution is added to the reaction mixture and the sandwich complex is bound to the solid phase via the interaction of biotin and streptavidin. Table 2 of the instant specification further provides the basic FastPack® assay protocol performed using the FastPack® IP tabletop analyzer and the approximate timing for each step, wherein the first incubation lasts 0 to 10 minutes and the second incubation lasts approximately 4 minutes.
Slagle further teaches that a competitive immunoassay relies on the competition between the antigen of interest (the analyte) and a constant amount of a similar but labeled antigen for a limited amount of specific antibody (Page 177, Para 3-4 on left column). Because the two antigens compete for the same antibody, the labeled antigen must react identically to the unlabeled one. Competitive immunoassays are highly sensitive, able to detect small amounts of analyte (3rd paragraph under “Competitive (Type II) Immunoassays”).
It would have been obvious to one of ordinary skill in the art to modify the method of determining the level of human c-Fn in a sample obtained from a human subject disclosed by the issued claims in view of Davalos, Livant, and Richardson such that the FastPack® immunoassay protocol and FastPack® IP system of Naselli are adapted for use as the rapid assay. One of ordinary skill in the art would have been motivated to do so since Davalos teaches that any suitable device and immunoassay can be used for detection of analytes in a sample; and the commercially available FastPack® immunoassay and FastPack® IP system disclosed by Naselli can be modified for the detection of c-Fn in a sample. The biotin-labeled antibody can also be replaced with biotin-labeled antigen (c-Fn-biotin which are coupled to the streptavidin paramagnetic particles) in the FastPack® immunoassay to make a competitive assay (rather than a sandwich assay) since competitive assays are able to detect small amounts of analyte as taught by Slagle. While competitive immunoassays typically require a long incubation time (Slagle, last paragraph under “Competitive Type (II) Immunoassays”), the FastPack® IP system is able to deliver results in 12 minutes or less with the second incubation time (in which immunocomplexes are mixed with c-Fn biotin coupled streptavidin paramagnetic particles) lasting about 4 minutes as shown in Table 2 of the instant application’s Drawings. Therefore, artisans would expect that the FastPack® immunoassay protocol and FastPack® IP system of Naselli can be adapted to detect c-Fn in the method of the issued claims in view of Davalos, Livant, and Richardson, wherein the assay has an incubation step in which the sample is mixed with antibody solution followed by mixing of the immunocomplex formed with c-Fn biotin coupled streptavidin paramagnetic particles within 5 minutes.
Response to Arguments
Applicant's arguments filed in the Appeal Brief of 10/23/2024 have been fully considered but they are not persuasive.
35 U.S.C. 103
With respect to the rejections under 35 U.S.C. 103, Applicant has argued -in consideration of routine optimization-that one of ordinary skill in the art would not have been aware that 1) the anti-cFn clone P1H11 is capable of binding to cellular fibronectin at an increased rate such that the rapid assay of Davalos can be achieved in less than 30 minutes; and 2) the plasma fibronectin must first be removed from the sample in a wash step [as recited in claims 57 and 58] so as not to mask the signal made by cellular fibronectin and prevent the assay from being completed in the 30 minute window.
Further, Applicant argues that the choice of antibody- the results effective variable- only matters in the context of achieving the “optimized result" of the under 30-minute feature of the claims if plasma fibronectin is also removed, a step which is allegedly not suggested in the prior art.
Lastly, Applicant argues that there is clearly no reason to optimize the teachings of the cited prior art to arrive at the claims when there is a complete lack of awareness in the prior art that the plasma fibronectin needs to be removed to even make it possible that the correct selection of antibody will allow for the under 30-minute feature of the claims to be achieved. Applicant also states that assay developers, versed in the state of the art, when faced with the problem of having to detect c-Fn in a rapid manner, would likely rather attempt to develop a competition assay rather than a highly tailored version of a rapid ELISA assay since it is cheaper and does not require a step for the removal of plasma fibronectin (i.e. via a wash step). However, the Applicant tried and failed to do so using different available platforms (Magna and LumiraDx).
In response to Applicant’s arguments, the Examiner notes that arguments presented by applicant cannot take the place of evidence in the record. See In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984); In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965); In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997) (“An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness.”) (MPEP 2145).
There is no evidence provided that the antibody clone P1H11 binds to cellular fibronectin at an increased rate than it binds to plasma fibronectin such that the assay time can be reduced to under 30 minutes as applicant has asserted. Per the instant claims, clone P1H11 binds to cellular fibronectin at 100-fold greater affinity than it binds to plasma fibronectin. Binding affinity indicates the strength of binding of a single molecule to its ligand (not the rate of the binding reaction, or how quickly in this case the antibody binds to its target antigen). Rather, the rate of the binding reaction is proportional to the concentrations of the reactants(see Abcam. KD value: a quantitative measurement of antibody affinity, specifically the section titled “What is the relationship between KD and antibody affinity?”).
Moreover, the FastPack® basic assay protocol does include a wash step prior to the detection step contrary to Applicant’s assertions (see Table 2 of the instant application as well as the FastPack® total PSA immunoassay protocol). Given that clone P1H11 binds to cellular fibronectin with 100-fold greater affinity than it binds to plasma fibronectin, the unbound immunocomplexes removed during the wash would necessarily be plasma fibronectin. As stated in the rejection above, the FastPack® immunoassay protocol and FastPack® IP system of Naselli can be adapted or modified for use as the rapid assay in Davalos for determining the level human c-Fn in a sample.
Livant teaches that P1H11 binds to plasma fibronectin, the P1H11 antibody was commercially available and marketed as an anti-cFn antibody at least in 2012 prior to the effective filing date of the instantly claimed invention (see Attachments A and B from Affidavit/Declaration dated 12/16/2020 including a purchase of P1H11 described as an anti-cFn antibody from Affinity Life Sciences, Inc. ). Therefore, prior to the effective filing date of the instantly claimed invention, one of ordinary skill in the art would have been aware that P1H11 disclosed by Livant as an anti-fibronectin antibody (not as an anti-plasma fibronectin antibody) was capable of targeting cellular fibronectin contrary to Applicant’s assertion and thus can be used in the methods of Davalos. Given that Affinity Life Sciences, Inc. sold P1H11 as a cellular fibronectin antibody (as opposed to a plasma fibronectin antibody or simply a fibronectin antibody) suggests that P1H11 is more specific for cellular fibronectin and thus would have greater binding affinity for cFn compared to plasma fibronectin.
Lastly, there is no evidence that artisans would opt for a different type of assay to measure cellular fibronectin given a rapid ELISA assay was obvious in view of the cited prior art.
With respect to the teachings of Davalos, Applicant argues the following points:
The incubation step of the claimed invention is much shorter due to the combination of at least:
1) the innovation of the correct antibody binding to the correct sequence for cellular fibronectin;
2) the innovation to use paramagnetic particles in a fluid medium; and
3) the innovative use of an in-assay wash step to get rid of plasma fibronectin (the main one in blood) & other fibronectins using a polyclonal.
Applicant further states that the idea that any system can be run in 60 minutes or less is based solely and entirely upon original claim 22 of Davalos. The specification of Davalos fails to mention any system being run in 60 minutes or less. Claim 22 which states, "The kit according to claim 19 wherein the device is capable of determining the levels of cellular fibronectin and said additional markers within 20 minutes."
Claim 22 is understood to further limit claim 19 as it depends from this claim. Claim 19 includes "a device having reagents at each of a plurality of discrete locations, each reagent and corresponding location configured and arranged to immobilize for detection one of said plurality of subject-derived markers, the device supporting the analysis of cellular fibronectin and additional markers."
Claim 22's limitation of claim 19 indicates that not all of the devices of claim 19 are "capable of determining the levels of cellular fibronectin and said additional markers within 20 minutes." Therefore, the rejection in the current Office Action as constructed requires that one skilled in the art select the device which is capable of determining the levels of cellular fibronectin and said additional markers within 20 minutes and avoid those which are not a capable of this.
Further, Applicant states that there is no basis to assume that the device of claim 22 is equivalent to the rapid assay of the claims. The claims clearly explain what is included in the "rapid assay" which includes obtaining, mixing, forming and detecting steps all of which occur (in total) in 60 minutes or less. The claims of the current application are explicit in this requirement stating, "obtaining, mixing, forming and detecting steps occur in 60 minutes or less."
Applicant points to the declaration which states that "The step of determining the levels of cellular fibronectin and said additional markers which Davalos states can be achieved within 20 minutes only refers to the "analysis" step in Davalos which is taught to include "identifying one or more markers the presence or amount of which is associated with the diagnosis" as stated in column 4 lines 57-58."
Therefore, Applicant states that there is no basis in the teachings of Davalos that "determining the levels of cellular fibronectin and said additional markers within 20 minutes" is the same as the specifically claimed "obtaining, mixing, forming and detecting steps."
Applicant also notes that the assays used in the examples of Davalos are only generically described as "commercially available quantitative sandwich enzyme-linked immunoabsorbent assay kit[s] obtained from Biotrack, Amersham Pharmacia UK, and Adeza Biomedical, respectively." One skilled in the art would at least find it difficult to clearly identify such a specific assay embodiment and determine if the specific assay chosen was one which met the specific requirements of claim 22. Therefore, when selecting a specific test from the "commercially available quantitative sandwich enzyme-linked immunoabsorbent assay kit[s] obtained from Biotrack, Amersham Pharmacia UK, and Adeza Biomedical, respectively" for Plasma MMP-9 and c-Fn levels, one skilled in the art could not know whether the selected embodiment was one that met the requirements of claim 22 and would have no reasonable expectation of incorporating that specific embodiment with the other teachings of the prior art in a finished assay which includes the claimed "obtaining, mixing, forming and detecting steps" in 60 minutes or less (claim 40) and especially not 20 minutes or less (claim 57).
In response to Applicant’s arguments against Davalos, the Examiner notes that Applicant is making reference to the teachings of US 2005/0130230. The rejection of record has never relied upon the teachings of US 2005/0130230; and thus arguments regarding claims 19 and 22 of the ‘230 publication are moot. There are no claims 19 and 22 in the cited art US7634360B2 (Davalos, of record). Nevertheless, while Applicant states that the step of determining the levels of cellular fibronectin and said additional markers which Davalos states can be achieved within 20 minutes only refers to the “analysis” step in Davalos in the attached Declaration, the Examiner points out that the rapid assays assessed in the working examples only include the steps of mixing, incubating, and detecting as outline in the basic protocol of the FastPack® immunoassay (Table 2). The step of obtaining a test sample (e.g. whole blood, serum, or plasma) from a human subject is omitted. In fact, the assays of the working examples used cellular fibronectin obtained (i.e. purchased) ready-made from Sigma (see Figure 2). Thus, the “obtaining” step of the claimed rapid assay itself does not appear to take into account time required to collect a test sample from a human subject to be prepare it for analysis of cellular fibronectin.
The Examiner further reiterates that Davalos (US7634360B2) teaches immunoassays to detect c-Fn in a test sample from a human subject wherein the immunoassays can be performed in a rapid fashion defined to be in under 30 minutes. The teachings of Davalos are not limited to the sandwich ELISA kits of Biotrack, Amersham Pharmacia UK, and Adeza Biomedical used in the example of Davalos. Indeed, a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art, including nonpreferred embodiments; and disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (see MPEP 2123). Davalos, in particular, states the following:
One of ordinary skill in the art know several methods and devices for the detection and analysis of the markers of the instant invention. With regard to polypeptides or proteins in patient test samples, immunoassay devices and methods are often used. These devices and methods can utilize labeled molecules in various sandwich, competitive, or non-competitive assay formats, to generate a signal that is related to the presence or amount of an analyte of interest. Additionally, certain methods and devices, such as biosensors and optical immunoassays, may be employed to determine the presence or amount of analytes without the need for a labeled molecule. Preferably the markers are analyzed using an immunoassay, although other methods are well known to those skilled in the art (for example, the measurement of marker RNA levels). The presence or amount of a marker is generally determined using antibodies specific for each marker and detecting specific binding. Any suitable immunoassay may be utilized, for example, enzyme-linked immunoassays (ELISA), radioimmunoassay (RIAs), competitive binding assays, and the like. (Emphasis Added) (Column 52, Ln. 21-41).
Notably, at the time that the instant application was filed, the FastPack® IP system was commercially available from Qualigen and used by Applicant to demonstrate the instant invention:
[W]e chose Qualigen, Inc.'s FASTPACK®IP System as a platform upon which to demonstrate the instant invention.
Both "competitive" and "sandwich" type chemiluminescence assays may be run on the FASTPACK® IP System, which has six separate chambers in a flat package attached to an injection port in which the blood/sera/blood plasma sample is inserted in Chamber 1. In a sandwich assay, a sample with an unknown concentration of the analyte is mixed with excess amounts of capture antibody and labeled antibody. The mixture is incubated for a specified time to allow both antibodies to bind to the analyte in a sandwich format (in Chamber 2). The mixture is then brought into contact with coated paramagnetic particles, which bind to the capture antibody (and thus the analyte). The analyzer uses a small magnet to hold the paramagnetic particles with their attached sandwiched analyte while they are washed repeatedly (from Chamber 4). The wash removes any unbound antibody (all done in Chamber 3) to the waste chamber (Chamber 5). Finally, a substrate solution (from Chamber 6) is added, which reacts with the labeled antibody and emits light, which is directly proportional to the concentration of the analyte in the sample (all in Chamber 3).
Because the FASTPACK® IP System is a fluidic test, there were no physical mediums (i.e. sample pad, conjugate pad, and lateral flow strip) to test with our antibody other than the plastic pouch, and chemiluminescence reagents. (Emphasis Added, see Pages 11-12 of the Specification).
The FastPack® IP System is a fully automated 12- minute quantitative immunoassay analyzer specifically designed to be used in the practice laboratory and allows patient results be available before the patient leaves their exam (see product specifications of the FastPack IP System, OA.Appendix). Given that the FastPack ® IP system and FastPack ™ immunoassay were commercially available prior to the filing of the instantly claimed invention and “any suitable immunoassay” could be utilized to carry out the methods of Davalos, the rapid assay of the instant claims is not innovative as Applicant has alleged and artisans would have reasonably been able to adapt the FastPack ™ immunoassay protocol for the measurement of c-Fn in human sera or plasma samples using the anti-cFn antibody clone P1H11 disclosed by Livant.
With respect to the teachings of Livant, Applicant has argued that the following points:
Livant describes a great number of sequences which do not match that of the claims of the current application, and when considered as whole, it is not even Livant is directed to the same fibronectin molecule.
Livant teaches that all peptide sequences have 'PHSRN' which is not present in SEQ ID NOs: 1-4 of the instant claims.
Livant teaches a cell-culture based screening assay, which is not rapid and of no relevance to the current application.
Livant teaches other fibronectin antibodies, such as Chemicon #MAB 1926 monoclonal antibody (page 54, 4th paragraph). In addition, Livant teaches that P1H11 binds to plasma fibronectin. However, it was not known before the current application that P1H11 has a stronger binding to c-FN than to plasma fibronectin. Therefore, artisans would not have been motivated to select P1H11 for the detection of c-Fn in a sample.
For the above reasons, Applicant asserts that Livant teaches away from the claimed invention. Further, Applicant states that while P1H1 possess increased binding affinity for c-Fn on, artisans were not aware of this property at the time the instant application was file and thus this property cannot be used as a basis for selection of P1H11.
In response to Applicant’s arguments against Livant, the Examiner notes that artisans would have also been motivated to use the commercially available anti-cFn antibody P1H11 disclosed by Livant because it has the same function and can be used for the same purpose as a cellular fibronectin specific antibody in the rapid assay disclosed by Davalos. It is noted here that Livant is not relied upon for the type of assay it teaches but the type of antibody used to detect fibronectin (i.e. P1H11). Per the instant claims, the anti-cFn antibody P1H11 necessarily has the functional property of binding to c-Fn with an affinity at least 100-fold greater than it binds to plasma fibronectin and binds to a portion of c-Fn having the amino acid sequence of SEQ ID NO: 4. Moreover, the courts have held that “[t]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). As such, while Livant does not disclose the c-Fn peptide of SEQ ID NO: 4 the anti-c-Fn antibody clone P1H11 has the inherent property of binding to an epitope of c-Fn having the amino acid sequence of SEQ ID NO: 4 as evidenced by the instant claims. Additionally, although Livant teaches that P1H11 binds to plasma fibronectin, the P1H11 antibody was commercially available and marketed as an anti-cFn antibody at least in 2012 prior to the effective filing date of the instantly claimed invention (see Attachments A and B from Affidavit/Declaration dated 12/16/2020 ). Therefore, prior to the effective filing date of the instantly claimed invention, one of ordinary skill in the art would have been aware that P1H11 disclosed by Livant as an anti-fibronectin antibody (not as an anti-plasma fibronectin antibody) was capable of targeting cellular fibronectin contrary to Applicant’s assertion and thus can be used in the methods of Davalos. Given that Affinity Life Sciences, Inc. sold P1H11 as a cellular fibronectin antibody (as opposed to a plasma fibronectin antibody or simply a fibronectin antibody) suggests that P1H11 is more specific for cellular fibronectin and thus would have greater binding affinity for cFn compared to plasma fibronectin. Lastly, although two other anti-human fibronectin antibodies are disclosed by Livant, as stated above, the P1H11 clone was on the market as an anti-cFn antibody prior to the effective filing date of the instant application; thus skilled artisans would have been motivated to select the P1H11 clone in Livant to detect c-Fn in a sample.
With respect to newly added claims 57-59, Applicant argues that the claims require a wash step which eliminates plasma fibronectin from the sample once the capture antibody for cellular fibronectin is used, which is attached to a paramagnetic bead, and before detection. Applicant also notes that the Office Action is looking at a different assay from FastPack IP, Total PSA assay which does use Immunoglow. However, contrary to the assumption of the Office Action, this is not the assay of the current application.
If one skilled in the art looking at prior Qualigen IP, e.g. Wilkinson et al., Naselli et al., and/or Anderson et al. combined with Davalos, said person would get an assay that would only detect plasma fibronectin. This is because there is no wash step in these teachings and since plasma fibronectin is 600x more prevalent in plasma than cellular fibronectin, any signal from cellular fibronectin would be overwhelmed by the plasma fibronectin.
In response to Applicant’s arguments over claims 57-59, the Examiner notes that, as stated in the rejection, Table 2 of the instant specification further provides the basic FastPack® assay protocol performed using the FastPack® IP tabletop analyzer and the approximate timing for each step, including the first incubation of sample with antibody solution (ALP conjugate comprising antigen, peptide, or antibody in buffer solution) lasting 0 to 10 minutes, the second incubation of the PMP-streptavidin/biotin solution with the immunocomplex lasting approximately 4 minutes, and the wash step that occurs prior to the detection step and lasts about 2.5 minutes. Thus, the FastPack® basic assay protocol a does include a wash step prior to the detection step contrary to Applicant’s assertions. The FastPack® immunoassay protocol and FastPack® IP system of Naselli known or publicly available prior to the filing of the instant application can be adapted or modified for use as the rapid assay in Davalos for determining the level human c-Fn in a sample.
Non-Statutory Double Patenting
With respect to the Double Patenting rejections, Applicant argues that the double patenting rejections also rely on the combined teachings of the above cited prior art and thus should be withdrawn. As such, the double patenting rejections are maintained over the issued patents for the reasons discussed above.
35 U.S.C. 112(a) enablement
Applicant’s arguments, see Appeal Brief, filed 10/08/2024 with respect to rejection of claims 40, 42, 46, 47-49, and 53-58, have been fully considered and are persuasive. The 35 U.S.C. 112(a) enablement set forth in the Final Rejection of 07/09/2024 has been withdrawn.
Conclusion
No claims are allowable.
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/LIA E TAYLOR/Examiner, Art Unit 1641
/Zachariah Lucas/Supervisory Patent Examiner, Art Unit 1600