DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This Office Action is in response to the paper filed 22 September 2025. Claims 1 and 21 have been amended. Claims 8 and 9 remain withdrawn. Claims 1, 2, 5-7, 10-14, and 18-23 are currently pending and under examination.
This Application is a Continuation Application of U.S. Application No. 15/568838, now U.S. Patent No. 10,980,839, filed October 24, 2017, which is a national phase Application under 35 U.S.C. §371 of International Application No. PCT/FR2016/050958, filed April 22, 2016, and claims priority to French Application No. FR1553716, filed April 24, 2015.
Withdrawal of Rejections:
The rejection of claim 21 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite, is withdrawn.
Claim Objections
Claim 21 is objected to because of the following informalities: “mLratio” should have a space between “mL” and “ratio.” Additionally, “comprised between” should instead read “comprising between.” Appropriate correction is required.
Claims 14 and 21 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Maintenance/Modification of Rejections Necessitated by Amendment:
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 1, 2, 5, 7, 12, 18-20, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Blaser et al. (IDS; US 2015/0037285, Published Feb. 5, 2015), and further in view of Fu et al. (CN 102559539B; Published 2012 – Previously Presented).
With regard to claims 1, 5, and 12, Blaser et al. teach a method of preparing a faecal microbiota sample from a donor patient, comprising: a) collecting a faecal microbiota sample from the donor patient; b) placing the sample obtained in a) in an oxygen-tight collection device; c) mixing the sample obtained in b) with a saline aqueous solution; d) removing the solids, which is filtering the mixture obtained from c); and e) storing the mixture obtained in d) by freezing at -80°C, wherein steps b) to e) are being carried out under anaerobic conditions (Abs.; Fig. 1; Para. 48, 64-67, claims 1-3, 10, 28).
While Blaser et al. teach cryopreservation of the sample, the inclusion of cryoprotectants with the sample in the saline solution of step c), including: glycerol, mannitol, sorbitol, DMSO, propylene glycol, ethylene glycol, trehalose, saccharose, galactose-lactose, or mixtures thereof in an amount of 5% w/v; and maltodextrin in an amount of 15% w/v, is not specifically taught.
Fu et al. teach preparing a Lactobacillus acidophilus-containing broth composition for freeze-drying, including adding lyophilization protective agents, including 5% trehalose and 15% maltodextrin (p. 7, (5), para. 1-2).
It would have been obvious to one of ordinary skill in the art to combine the teachings of Blaser et al. and Fu et al., because both teach methods of preparing a microbial composition that includes collecting the microorganism, mixing the microbial composition with components, and freezing the composition. The mixing of a microbial composition for lyophilization with lyophilization protective agents including 5% w/v trehalose and 15% w/v maltodextrin, is known in the art as taught by Fu et al. The inclusion of lyophilization protective agents including 5% w/v trehalose and 15% w/v maltodextrin in the saline solution with the microbiota sample, would have been expected to predictably and successfully provide a microbial composition ready for cryopreservation as desired by Blaser et al., as inclusion of lyophilization protective agents including 5% w/v trehalose and 15% v/w maltodextrin with a microbial composition prior to freezing, is known from Fu et al.
Taken together, Blaser et al. and Fu et al. render obvious the method as claimed, including the components as claimed. As these components cannot be separated from their properties, performance of the combined method of Blaser et al. and Fu et al. would necessarily provide the result of preserving the faecal microbiota viability.
With regard to claim 2, Blaser et al. teach that it is optional to freeze the sample after step b) and prior to step c) (Fig. 1, step 1), wherein performance of this step requires that the sample placed in the collection device of step b) be transported to the freezer for freezing prior to performance of step c).
With regard to claims 7, Blaser et al. teach that the method further comprising step f), thawing the frozen sample obtained in e) under anaerobiosis up to ambient temperature (Para. 68, 70).
With regard to claims 18-20, taken together Blaser et al. and Fu et al. render obvious the method as claimed, including the components as claimed. As these components cannot be separated from their properties, performance of the combined method of Blaser et al. and Fu et al. would necessarily provide the results of: the aqueous saline solution promoting colonization by Faecalibacterium to the detriment of Bacteroides; the aqueous saline solution enabling effective recolonization of the intestine without alteration of the faecal microbiota; and preserving the metabolomic profile of the faecal microbiota.
With regard to claim 23, Blaser et al. teach that the donor of the faecal microbiota sample is healthy, having microbiota that is capable of restoring pathogen barrier function and ameliorating conditions including C. difficile associated diarrhea (Para. 4), which indicates that the donor patient is not suffering from an imbalance in the intestinal microbiota or having a diagnosed/recognized pathology (see Spec. definition of “healthy,” p. 4, line 28-30).
Claims 1 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Blaser et al. and Fu et al., as applied to claim 1 above, and further in view of Sadowsky et al. (IDS; WO 2014/152484, Published Sept. 25, 2014; hereafter Sadowsky 2014).
The teachings of Blaser et al. and Fu et al. as applied to claim 1 have been set forth above. While Blaser et al. teach that the sample is mixed with a saline solution, it is not taught that the saline solution comprises one of sodium chloride, calcium chloride, magnesium chloride, potassium chloride, sodium gluconate, or sodium acetate.
Sadowsky 2014 teach a method of preparing a faecal microbiota sample from a donor patient, comprising: collecting a faecal microbiota sample from the donor patient; mixing the sample with sterile saline solution, the saline solution including sodium chloride; storing the sample mixed with the saline solution by freezing at -80°C; and then thawing the frozen sample for use (Abs.; p. 25, Line 18-30; P. 26, Line 24-26).
It would have been obvious to one of ordinary skill in the art to combine the teachings of Blaser et al. and Fu et al. with Sadowsky 2014, because Blaser et al. and Sadowsky 2014 teach collecting a microbial sample; mixing the sample with components; freezing the sample for storage; and then thawing the frozen sample for use. While Blaser et al. teach the use of saline solution in the method, the salt present in the saline solution is not specifically taught. The use of sodium chloride as the salt in a sodium solution for mixing with a faecal microbiota sample prior to freezing is known in the art as taught by Sadowsky 2014. The use of a saline solution comprising sodium chloride as the salt would be expected to predictably and successfully provide a saline solution for performance of the combined method of Blaser et al. and Fu et al.
Therefore, it would have been obvious to one of ordinary skill in the art to combine the teachings of Blaser et al., Fu et al., and Sadowsky 2014, wherein the saline solution comprises sodium chloride (Claim 6).
Claims 1, 6, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Blaser et al., Fu et al., and Sadowsky 2014, as applied to claims 1 and 6 above, and further in view of Yde et al. (IDS; WO 2014/029758; Published Feb. 27, 2014).
The teachings of Blaser et al., Fu et al., and Sandowsky 2014, as applied to claims 1 and 6 have been set forth above. Blaser et al., Fu et al., and Sandowsky 2014 do not specifically teach that the saline aqueous solution further comprises an antioxidant including sodium L-ascorbate, tocopherols, L-cysteine hydrochloride monohydrate, or mixtures thereof.
Yde et al. teach cryopreservation of probiotic bacteria, where cryoprotectants are used to protect bacterial cells from damage during freezing, freeze-drying, thawing, and during storage, and where cryoprotectants include sugars such as trehalose, polysaccharides such as maltodextrin, and antioxidants such as vitamin E (tocopherols) (Abs.; p. 11, Line 22-29).
It would have been obvious to one of ordinary skill in the art to combine the teachings of Blaser et al., Fu et al., Sandowsky 2014, and Yde et al., because Blaser et al., Sandowsky 2014, and Yde et al. teach methods of preparing a microbial sample that includes: collecting the microbial sample; mixing the sample with components; freezing the sample for storage; and then thawing the frozen sample for use. The mixing of a microbial sample with cryoprotectants including trehalose, maltodextrin, and antioxidants such as tocopherols is known in the art as taught by Yde et al. The inclusion of an additional cryoprotectant, including an antioxidant such as tocopherols, in the saline aqueous solution with the microbial sample would be expected to predictably improve the combined method of Blaser et al., Fu et al., and Sandowsky 2014, as inclusion of an additional cryoprotectant with the microbial sample prior to freezing would have been expected to further desirably maintain the microbes when frozen for downstream uses.
Therefore, it would have been obvious to one of ordinary skill in the art to combine the teachings of Blaser et al., Fu et al., Sandowsky 2014, and Yde et al., where the saline aqueous solution further comprises an antioxidant including tocopherols (Claim 13).
Claims 1, 10, and 11, are rejected under 35 U.S.C. 103 as being unpatentable over Blaser et al. and Fu et al., as applied to claim 1 above, and further in view of Cho et al. (IDS; US 2012/0064606; Published March 15, 2012).
The teachings of Blaser et al. and Fu et al. as applied to claim 1 have been set forth above. Blaser et al. teach step d) removing the solids, which is filtering the mixture obtained in c) (Abs.; Fig. 1; Para. 48, 64-67, claims 1-3, 10, 28). However, Blaser et al. and Fu et al. do not teach a pore size of a filter used for removing the solids.
Cho et al. teach the preparation of a probiotic bacterial sample for freeze-drying (Abs.; Para. 1-2), wherein a membrane (filter) is used for filtering the probiotic bacteria, where the pore diameter is 0.1 to 4 µm (Para. 16; claim 3), which is fully encompassed within less than or equal to 0.7 mm, or 0.5 mm.
It would have been obvious to one of ordinary skill in the art to combine the teachings of Blaser et al. and Fu et al. with Cho et al., because Blaser et al. and Cho et al. teach methods of preparing a microbial sample that includes: collecting the microbial sample; filtering solids; mixing the sample with components; freezing the sample for storage; and then thawing the frozen sample for use. Filtering the probiotic bacteria where the filter includes a pore size of 0.1 to 4 µm, is known in the art as taught by Cho et al. The use of a filter that includes a pore size of 0.1 to 4 µm would be expected to predictably and successfully provide a filtered faecal microbiota sample as desired in the method of Blaser et al. and Fu et al.
Therefore, it would have been obvious to one of ordinary skill in the art to combine the teachings of Blaser et al., Fu et al., and Cho et al., wherein the filter used in step d) comprises pores having a diameter less than or equal to 0.7 mm, or less than or equal to 0.5 mm (Claim 10, 11).
Claims 1 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Blaser et al. and Fu et al., as applied to claim 1 above, and further in view of Muto (US 2011/0104746; Published 2011 – Previously Presented).
The teachings of Blaser et al. and Fu et al. as applied to claim 1 have been set forth above. While Blaser et al. teach that the sample is mixed with a saline solution, it is not taught that the saline solution further comprises sodium L-ascorbate and L-cysteine hydrochloride monohydrate.
Muto teach a solution for suspension of viable microorganisms (Abs.), the solution comprising components including sodium L-ascorbate and L-cysteine hydrochloride monohydrate (Para. 44).
It would have been obvious to one of ordinary skill in the art to combine the teachings of Blaser et al. and Fu et al. with Muto, because Blaser et al. and Muto teach mixing a viable microbial sample with a solution. The use of a solution for viable microbes that includes sodium L-ascorbate and L-cysteine hydrochloride is known in the art as taught by Muto. The use of a saline solution as taught by Blaser et al. and Fu et al. that further comprises known components including sodium L-ascorbate and L-cysteine hydrochloride as taught by Muto, would have been expected to predictably and successfully provide a saline solution for performance of the combined method of Blaser et al. and Fu et al., while further enhancing the maintenance of viability.
Therefore, it would have been obvious to one of ordinary skill in the art to combine the teachings of Blaser et al., Fu et al., and Muto, wherein the saline solution further comprises sodium L-ascorbate and L-cysteine hydrochloride (Claim 22).
Response to Arguments
With regard to Blaser, Applicant urges that Blaser does not teach or suggest the use of cryoprotectant or maltodextrin before freezing as claimed. As Blaser teach that viability and bioactivity of the microbiota are preserved by using an airtight collection container, a skilled person would never have been incited to searched for another way to preserve the sample.
With regard to Fu, Applicant urges that Fu is not directed to a method of preparing a faecal microbiota sample, but instead to preservation of only a single strain, where the crude faecal microbiota sample as claimed comprises a huge number of bacterial species with complex interactions, thus Fu is not applicable to the current claims (or Blaser). Further, lyophilization and freezing are fundamentally different preservation processes, and there is no teaching in Fu that the lyophilization protective composition used for L. acidophilus would preserve the complex faecal microbiota upon freezing. Additionally, the protective agent of Fu includes a complex mixture of skim milk and other components in addition to the maltodextrin and trehalose, whereas the current claims are directed to a very specific formulation with only 5% cryoprotectant and 15% maltodextrin with no further additives. Also regarding Fu, Applicant urges that the percentages disclosed in Fu are expressed relative to the freeze-drying protective agent which is added to the bacterial sludge in an amount of 15-20% volume, therefore the percentages are not calculated relative to the total volume of the saline aqueous solution as require in the claims.
Applicant additionally urges that the unexpected results of retaining the biological diversity of the microbiota as shown in the examples of the present specification rebut any prima facie case of obviousness.
Applicant further urges that Sadowsky 2014, Yde et al., Cho et al., and Muto fail to overcome the noted deficiencies of Blaser and Fu.
Applicant’s arguments have been fully considered, but have not been found persuasive.
In response to applicant's arguments against the references individually, including that Blaser does not teach or suggest the use of cryoprotectant or maltodextrin before freezing as claimed, it is noted that one 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). Fu is cited for the teaching of specific cryoprotectants and maltodextrin before freezing.
With regard to Applicant’s argument that as Blaser teach that viability and bioactivity of the microbiota are preserved by using an airtight collection container, a skilled person would never have been incited to search for another way to preserve the sample; Blaser specifically teaches:
2. Specimen Preparation
[0067] Prepare the sample in an anaerobic environment (typically composed of 90% nitrogen, 5% hydrogen, and 5% carbon dioxide, or alternately 95% nitrogen, 5% hydrogen, or 100% nitrogen). It is essential that the environment excludes oxygen. Add pre-reduced anaerobically sterilized saline or other diluent (such as, e.g., water or milk), homogenize using a Vortex, remove solids, and transfer to an airtight container with a Hungate cap (plastic cap with an airtight rubber septum). If administering to the microbiota recipient on another day, it is possible to freeze and save at this point (e.g., at -80° C.) for years (Emphasis added).
Given that Blaser explicitly teaches that the sample can be frozen and saved for even years if being administered in the future, an ordinary artisan clearly would have understood that freezing in addition to using an airtight container are suggested for preservation.
With regard to Applicant’s argument that Fu is not directed to a method of preparing a faecal microbiota sample, but instead to preservation of only a single strain, where the crude faecal microbiota sample as claimed comprises a huge number of bacterial species with complex interactions, thus Fu is not applicable to the current claims (or Blaser); in response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the faecal microbiota sample comprises a huge number of bacterial species with complex interactions) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). There is no requirement in the claims that the faecal microbiota from the donor subject contain any specific microbial strains, or any specific number of different strains. Additionally, the further use in Fu of the cryopreserved species in an animal feed does not negate the teaching of cryopreservation.
With regard to Applicant’s argument that lyophilization and freezing are fundamentally different preservation processes, and there is no teaching in Fu that the lyophilization protective composition used for L. acidophilus would preserve the complex faecal microbiota upon freezing; as discussed above, there is no requirement in the claims regarding the complexity of the faecal microbiota. Further, it is noted that lyophilization, which is freeze-drying, is still a type of preservation that utilizes freezing, and there is nothing in Blaser that limits “freezing” to any specific technique.
With regard to Applicant’s argument that the protective agent of Fu includes a complex mixture of skim milk and other components in addition to the maltodextrin and trehalose, whereas the current claims are directed to a very specific formulation with only 5% cryoprotectant and 15% maltodextrin with no further additives; it is noted that the transitional phrase utilized by Applicant in the claims is “comprising.” The transitional phrase "comprising" is inclusive or open-ended and does not exclude additional, unrecited elements or method steps (see MPEP 2111.03). As such, the additional additives, such as those recited by Fu, may be present in addition to the 5% cryoprotectant and 15% maltodextrins.
With regard to Applicant’s argument that the percentages disclosed in Fu are expressed relative to the freeze-drying protective agent which is added to the bacterial sludge in an amount of 15-20% volume, therefore the percentages are not calculated relative to the total volume of the saline aqueous solution as require in the claims; Fu teaches:
After the lyophilized protective agent is added to the Lactobacillus acidophilus fermentation broth, the proportion of the lyophilized protective agent is 43.1%, wherein the proportion of each component in the protective agent is: skim milk 15%, maltodextrin 15%, trehalose 5%, vitamin C 0.5%, sodium glutamate 4%, manganese sulfate 0.6%, glycerol 3% (p. 7, (5), para. 1-2) (Emphasis added).
As seen in this passage, the taught concentrations of each component in the protective agent are relative to the total amount of protective agent, and not relative to the total amount of the protective agent and the fermentation broth. As such, an ordinary artisan would utilize 15% maltodextrin and 5% trehalose relative to the total volume of solution (i.e. the saline aqueous solution) in the combination of Blaser and Fu.
With regard to Applicant’s argument that the unexpected results of retaining the biological diversity of the microbiota, as shown in the examples of the present specification rebut any prima facie case of obviousness; as discussed previously, there is no claimed requirement as to any specific biological diversity of the microbiota. Further, it is noted that the examples in the Specification utilize method steps and components not present in the current claims. For example, MDX15 as described in examples 1 and 2 include 15% maltodextrins and 5% trehalose, while the current claims include a variety of cryoprotective agents and mixtures in addition to trehalose. Further, in example 1, it is noted that the 15% maltodextrins and 5% trehalose are present with specifically 9 g/L saline solution, and the MDX15 preparations made under anaerobic atmosphere further include sodium L-ascorbate and L-cysteine hydrocholoride monohydrate to a final concentration of 0.5% w/v and 0.1% w/v, respectively (see p. 13, line 19-20, 21-25). Given these differences, the noted examples in the specification cannot be said to provide evidence of unexpected results for the currently claimed method.
With regard to Applicant’s argument that Sadowsky 2014, Yde et al., Cho et al., and Muto fail to overcome the deficiencies of Blaser and Fu; the cited deficiencies have been discussed above.
Conclusion
No claims are allowable. However, claims 14 and 21 appear to be free of the art.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/JENNIFER M.H. TICHY/Primary Examiner, Art Unit 1653