DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 09-17-2025 has been entered.
Applicant's amendments to the claims and arguments filed on 08-25-2025 have been received and entered. Claims 74, 102, 103, have been amended. Claims 1-73, 76-82, 85, 88, 92, 98, 100, 104-147 have been canceled. Claims 74-75, 83-84, 86-87, 89-91, 93-97, 99, 101-103, 148-149 are pending in the instant application.
Election/Restrictions
Applicant’s election without traverse of Group IV (claims 74-75, 83-84, 86-87, 89-91, 93-97, 99, and 101-103) in the reply filed on 05-28-2024 is acknowledged.
Claim 1-73, 76-82, 85, 88, 98, 100, 104-147 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected subject matter, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 05-28-2024. It is noted that claims 1-73, 76-82, 85, 88, 98, 100, 104-147 have been canceled.
Claims 74-75, 83-84, 86-87, 89-91, 93-97, 99, 101-103, 148-149 are under consideration.
Priority
This application is a 371 of PCT/US2020/013315 filed on 01/13/2020 that claims priority from US provisional application 62/791,207 filed on 01/11/2019.
Claim Objections
Claim 84 is objected to because of the following informalities:
Claims 84 recite improper Markush language. When materials recited in a claim are so related as to constitute a proper Markush groups, they may be recited in the conventional manner, or alternatively. For example, either of the below is proper
“wherein the bioactive compound is selected from the group consisting of a growth factor, a cytokine, an antibody, an antibody fragment, and an organic molecule of a mass of less than 5000 daltons.”
“wherein the bioactive compound is a growth factor, a cytokine, an antibody, an antibody fragment, or an organic molecule of a mass of less than 5000 daltons.”
Appropriate correction is required.
Specification
The disclosure is objected to because of the following informalities:
The instant specification is objected to because the paragraph numbering is not consecutive throughout the specification, making the specification somewhat confusing to read. For example, at page 47-48 of the specification filed on 07-09-2021, paragraph [0157] is followed by paragraph [0001] and [0003]. It appears that this is a typographical error that results in the instant specification, making it somewhat confusing as to what content is referred to by those paragraph numbers. It would be remedial for Applicant to amend the specification to correct this misnumbering of the paragraphs in the instant specification.
Specification - The misnumbering of the paragraphs in the instant specification is illustrated as follows at page 47 and page 48 of the specification filed on 07-09-2021:
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Appropriate correction is required.
New-Claim Rejections - 35 USC § 112
Claim 84 is rejected on the basis that it contains an improper Markush grouping of alternatives. See In re Harnisch, 631 F.2d 716, 721-22 (CCPA 1980) and Ex parte Hozumi, 3 USPQ2d 1059, 1060 (Bd. Pat. App. & Int. 1984). A Markush grouping is proper if the alternatives defined by the Markush group (i.e., alternatives from which a selection is to be made in the context of a combination or process, or alternative chemical compounds as a whole) share a “single structural similarity” and a common use. A Markush grouping meets these requirements in two situations. First, a Markush grouping is proper if the alternatives are all members of the same recognized physical or chemical class or the same art-recognized class, and are disclosed in the specification or known in the art to be functionally equivalent and have a common use. Second, where a Markush grouping describes alternative chemical compounds, whether by words or chemical formulas, and the alternatives do not belong to a recognized class as set forth above, the members of the Markush grouping may be considered to share a “single structural similarity” and common use where the alternatives share both a substantial structural feature and a common use that flows from the substantial structural feature. See MPEP § 2117.
The Markush grouping of claim 84 is improper because the alternatives defined by the Markush grouping do not share both a single structural similarity and a common use for the following reasons:
Claim 84 recites “the bioactive compound is a growth factor, a cytokine, an antibody, an antibody fragment, an organic molecule of a mass of less than 5000 Daltons”. The Markush grouping do not share both a single structural similarity because a growth factor, a cytokine, an antibody, an antibody fragment and an organic molecule of a mass of less than 5000 Daltons are functionally and structurally different
To overcome this rejection, Applicant may set forth each alternative (or grouping of patentably indistinct alternatives) within an improper Markush grouping in a series of independent or dependent claims and/or present convincing arguments that the group members recited in the alternative within a single claim in fact share a single structural similarity as well as a common use.
New-Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 74-75, 83-84, 86-87, 89-91, 93-97, 99, 101-103, 148-149 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Base claim 1 is directed to a composition comprising an isolated fibroblast cell, a population thereof, a conditioned medium thereof wherein the fibroblast cell has an increased regenerative activity compared to a control fibroblast cell, wherein the isolated fibroblast regenerative cell or population thereof expresses CD 105 marker and/or CD117 marker, and wherein the isolated fibroblast regenerative cell or population thereof comprises an introduced vector comprising a cell-specific promoter coupled to at least one selectable marker gene. Base claim 102 is directed to an in vitro isolated fibroblast regenerative cell or population thereof capable of proliferating and differentiating into ectoderm, mesoderm, or endoderm, wherein the isolated fibroblast regenerative cell expresses CD105 marker, and does not express at least one of MHC class I, MHC class II, CD45, CD13, CD49c, CD66b, CD73, or CD90 cell surface proteins, and wherein the isolated fibroblast regenerative cell or population thereof comprises an introduced vector comprising a cell-specific promoter coupled to at least one selectable marker gene. Base claim 103 is directed to a master cell bank comprising a plurality of packaged population of regenerative fibroblast cells, capable of proliferating and differentiating into ectoderm, mesoderm, or endoderm, wherein the isolated fibroblast regenerative cell expresses CD105 marker and does not express at least one of MHC class I, MHC class II, CD45, CD13, CD49c, CD66b, CD73, or CD90 cell surface proteins, and wherein the population of regenerative fibroblast cells comprises an introduced vector comprising a cell specific promoter coupled to at least one selectable marker gene.
The specification of the claimed invention only provides example for expressing factors OCT-4, NANOG, KLF-4, CYTOKINE IL-10 in CD105 fibroblasts. Example 1 teaches enhanced expression of OCT-4 in cd105 purified fibroblasts: Fibroblasts derived from foreskin were obtained from ATCC, and Isolation of CD105 positive and negative cells was performed using magnetic activated cell sorting (MACS). Expression of OCT-4, a marker of stem cell potency, was assessed using flow cytometry for assessment of the intracellular OCT-4 protein, and in FIG.1, expression of OCT-4 was enhanced in cells that have been selected for expression of CD105 ([0143]-[0146], page 44-45). Example 2 teaches enhanced expression of NANOG in cd105 purified fibroblasts: Fibroblasts derived from foreskin were obtained from ATCC and Isolation of CD105 positive and negative cells was performed using magnetic activated cell sorting (MACS). Expression of Nanog, a marker of potency, was assessed using flow cytometry mouse polyclonal antibody against human Nanog purchased from Abcam, and in FIG. 2, expression of NANOG was enhanced in cells that have been selected for expression of CD105 ([0147]-[0150], page 45). Example 3 teaches enhanced expression of klf-4 in cd105 purified fibroblasts: Fibroblasts derived from foreskin were obtained from ATCC and isolation of CD105 positive and negative cells was performed using magnetic activated cell sorting (MACS). Expression of Nanog, a marker of potency, was assessed using flow cytometry mouse polyclonal antibody against human KLF-4 purchased from Abcam, and in FIG. 3, expression of KLF-4 was enhanced in cells which have been selected for expression of CD105 ([0151]-[0154], page 46). Example 4 teaches enhanced expression of immune modulatory cytokine il-10 by cd105 selected fibroblasts: Fibroblasts derived from foreskin were obtained from ATCC and isolation of CD105 positive and negative cells was performed using magnetic activated cell sorting (MACS). Cells were cultured with allogeneic lymphocytes at a 1: 1 ratio for 72 hours and production of IL-10 was assessed by ELISA (R&D Systems), and in FIG. 4, an increased production of IL-10 was observed in the CD105 selected fibroblasts ([0155]-[0157], page 46-47). Thus, it appears the instant disclosure teaches simply selecting foreskin fibroblast obtained from ATCC with CD105 expression would enhance expression of OCT-4 or NANOG or KLF-4 or IL-10 to make fibroblast regenerative. However, there is no definition of “regenerative cells” other than having enhanced expression of stem cell factor or cytokine: OCT-4 or NANOG or KLF-4 or IL-10. There is no further guidance for how these stem cell factor (OCT-4 or NANOG or KLF-4 or IL-10) maintain Fibroblast identity/cell fate not being reprogramed into stem cells while being “regenerative”.
The instant specification teaches that the current disclosure overcomes limitations of stem cells by providing a novel regenerative cell, a fibroblast regenerative cell, which possesses superior activity to stem cells ([0003], page 1). In some embodiments, fibroblast regenerative cells possessing CD 105 and/or CD117 markers are further enriched for the property of rhodamine 123 efflux. In some embodiments, the fibroblast regenerative cells do not express at least one or more of MHC class I, MHC class II, CD45, CD13, CD49c, CD66b, CD73, CD105 or CD90 cell surface proteins ([0004], page 1-2). The isolated fibroblast regenerative cells express or are selected because they express CD105 marker and/or CD117 marker. In some embodiments, the cells also express Oct-4, CD-34, KLF-4, Nanog, Sox-2, Rex-1, GDF-3, IL-10, Stella and/or any combination thereof. In some aspects fibroblast regenerative cells also comprise a rhodamine 123 efflux activity. In some aspects, the cells comprise enhanced expression of GDF-11 as compared to a control cell ([0006], page 2). It is noted that it is well-known in the art that CD105 (also known as Endoglin) is a surface marker used to help identify and isolate mesenchymal stem cells (MSCs), and CD117 (also known as c-KIT receptor) is a receptor tyrosine kinase found on the surface of various stem cells, including hematopoietic stem cells (HSCs) and mast cells. Oct-4, Nanog, Sox-2, KLF4, c-Myc, Rex-1, GDF-3, Stella markers (also known as PGC7 or Nanos3) are all key transcription factors and genetic markers associated with maintaining pluripotency and the self-renewal capacity of embryonic stem cells and induced pluripotent stem cells (iPSCs). They are also often found in cancer stem cell populations. LIF receptor is the receptor for leukemia inhibitory factor (LIF) that is important for maintaining murine (mouse) embryonic stem cell pluripotency in cell culture. IL-10 (Interleukin-10) is a well-known anti-inflammatory cytokine, a type of signaling molecule used in the immune system. Thus, the instant specification lacks of description of how Fibroblast identity/cell fate maintenance while these CD105 and/or CD117 positive Fibroblasts are expressing stem cell markers Oct-4, CD-34, KLF-4, Nanog, Sox-2, Rex-1, GDF-3, Stella or cytokine IL-10 and, at the same time, these Fibroblasts would not be reprogramed into stem cells such as Pluripotent stem cell. Below are references discussing Fibroblasts are being reprogramed into pluripotent stem cell when expressing pluripotent factors such as Oct-4, KLF-4, Nanog etc. :
Liu et al (Stem Cell Reviews and Reports (2020) 16:3–32, doi:10.1007/s12015-019-09935-x) teaches that only four of the twenty-four previously used pluripotency transcription factors are necessary to reprogram mature mouse fibroblasts into an embryonic stem cell-like state, creating iPSCs (Fig. 1 and 2). These four so-called Yamanaka factors are Oct4, Sox2, Klf4, and c-Myc (abbreviated in a group as OSKM). Several years later, Yamanaka’s OSKM formula was used to generate iPSCs from human fibroblasts as well. These factors show a remarkable ability to induce pluripotency, enabling cells to develop into any of 220 cell types, at least in theory, by way of reversible epigenetic changes (Page 11, left column, 2nd para), and a modified four-factor induction protocol employing Oct4, Sox2, Nanog, and Lin28, which exhibit reprogramming with an efficiency similar to that obtained with the Yamanaka factors (Page 11, right column, 2nd para). Furthermore, Liu et al teach that the International Society for Cellular Therapy recommends identifying hMSCs with immunopositivity for CD105, CD73, and CD90 surface antigens (Page 9, right column, 3rd para.), and Urine-derived iPSCs with a subpopulation of cells isolated from urine had progenitor cell features, including cell-surface expression of cKit (CD117), SSEA4, CD105, CD73, CD91, CD133, and CD44, markers (Page 8, right column, 1st para). Thus, the expression of Oct4, Klf4, and Nanog has been used to reprogram fibroblast into Pluripotent stem cells which also express CD105 and cKit (CD117). The instant specification lacks of description of how Fibroblast expressing stem cell markers CD105, CD117, Oct-4, CD-34, KLF-4, Nanog, Sox-2, Rex-1, GDF-3, Stella or cytokine IL-10 would not be reprogramed into stem cells such as Pluripotent stem cell and still maintained fibroblast identity
Further, the instant disclosure teaches “the regenerative fibroblast cells are capable of proliferating and differentiating into at least two of ectoderm, mesoderm, or endoderm.” ([0007], page 2). The base claim 102 and 103 require “regenerative fibroblast cells, capable of proliferating and differentiating into ectoderm, mesoderm, or endoderm”. It is noted that proliferating and differentiating into ectoderm, mesoderm, or endoderm are well-known in the art that are characteristics of stem cells: the above cited reference Liu et al teach pluripotent stem cells are characterized by the properties of self-renewal and potency, wherein the former refers to the cell’s ability to proliferate and the latter refers to the cell’s ability to differentiate into specialized cell types derived from one of three primary germ layers: ectoderm, endoderm, or mesoderm (Page 6, right column, last para.). Thus, the instant specification lacks of description of how the claimed regenerative Fibroblasts can differentiate into ectoderm, mesoderm, or endoderm and can still be distinguished from stem cells.
Additionally, in analyzing whether the written description requirement is met for the genus claim, it is determined whether a representative number of species have been sufficiently described by other relevant identifying characteristics, specific features and functional attributes that would distinguish different members of the claimed genus. To satisfy the written description requirement, a patent specification must describe the claimed invention in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention. See, e.g., Moba, B. V. v. Diamond Automation, Inc., 325 F.3d 1306, 1319, 66 USPQ2d 1429, 1438 (Fed. Cir. 2003); Vas-Cath, Inc. v. Mahurkar, 935 F.2d at 1563, 19 USPQ2d at 1116. An applicant shows possession of the claimed invention by describing the claimed invention with all of its limitations using such descriptive means as words, structures, figures, diagrams, and formulas that fully set forth the claimed invention. Lockwood v. Amer. Airlines, Inc., 107 F.3d 1565, 1572, 41 USPQ2d 1961, 1966 (Fed. Cir. 1997). Possession may be shown in a variety of ways including description of an actual reduction to practice, or by showing that the invention was "ready for patenting" such as by the disclosure of drawings or structural chemical formulas that show that the invention was complete, or by describing distinguishing identifying characteristics sufficient to show that the applicant was in possession of the claimed invention. See, e.g., Pfaffv. Wells Elecs., Inc., 525 U.S. 55, 68, 119 S.Ct. 304,312, 48 USPQ2d 1641, 1647 (1998); Eli Lilly, 119 F.3d at 1568, 43). USPQ2d at 1406; Amgen, Inc. v. Chugai Pharm., 927 F.2d 1200, 1206, 18 USPQ2d 1016, 1021 (Fed. Cir. 1991).
The base claim 74 encompasses a genus of any “conditioned medium thereof”. Claim 83 encompass a genus of any bioactive compound. Claim 84 encompasses genus of bioactive compound is any growth factor, any cytokine, any antibody, any antibody fragment, any organic molecule of a mass of less than 5000 daltons. Claim 90 encompasses genus of any agents to facilitate the incorporation of the mitochondria into the fibroblast cell. The instant specification lacks of description of various different medium composition and conditions for generating “conditioned medium” using any bioactive compound. The specification teaches that the term “conditioned medium of fibroblast regenerative cells” refers to a liquid media which has been in contact with cells, wherein said cells produce factors which enter the media, thus bestowing upon the media therapeutic activity ([0079], page 21). The specification teaches general concept: “The term "biologically active" or "bioactive compound" refers to any molecule having structural, regulatory or biochemical functions.” ([0075], page 20). However, there is no guidance for what medium composition can sustain the growth and viability of the fibroblast regenerative cells. There is no guidance to say any components of medium composition/culture conditions could be used to culture fibroblast regenerative cells. There is no guidance for any molecule having structural, regulatory or biochemical functions of "biologically active" or "bioactive compound". There is no guidance for any agents to facilitate the incorporation of the mitochondria into the fibroblast cell. As evidenced by applicant own disclosure, the instant specification teaches “Culture conditions may vary widely for each cell type though, and variation of conditions for a particular cell type can result in different phenotypes being expressed. The most commonly varied factor in culture systems is the growth medium. Growth media can vary in concentration of nutrients, growth factors, and the presence of other components. The growth factors used to supplement media are often derived from animal blood, such as calf serum.” (See the specification, [0076], page 20). Thus, the instant specification lacks of description of various different medium composition and conditions for generating “conditioned medium” for regenerative fibroblast cells to be regenerative or viable.
The base claims 74, 102 and 103 also encompass a genus of isolated fibroblast regenerative cell comprises any introduced vector comprising a cell-specific promoter coupled to at least one any selectable marker gene. Introducing any vector carrying any factors would lead the cell to be less regenerative: Missinato et al (Nature Communications | (2023) 14:1709, Doi: 10.1038/s41467-023-37256-8) teach conserved transcription factors promote cell fate stability and restrict reprogramming
potential in differentiated cells (Title) and “using a genome-wide transcription factor screen followed by validation steps in a variety of reprogramming assays (cardiac, neural and iPSC in fibroblasts and endothelial cells), we identified a set of four transcription factors (ATF7IP, JUNB, SP7, and ZNF207 [AJSZ]) that robustly opposes cell fate reprogramming in both lineage and cell type independent manners. Mechanistically, our integrated multiomics approach (ChIP, ATAC and RNA-seq) revealed that AJSZ oppose cell fate reprogramming by 1) - maintaining chromatin enriched for reprogramming TF motifs in a closed state and 2) - downregulating genes required for reprogramming” (Abstract).
The base claims 74, 102 and 103 also encompass a genus of any cell-specific promoter and a genus of any selectable marker gene. The instant disclosure only provides limited guidance for cell-specific promoter: “the fibroblast cell-specific promoter is an Oct-4 promoter, a Nanog promoter, a Sox-2 promoter, a Rex-1 promoter, a GDF-3 promoter, a Stella promoter, a FoxD3 promoter, a Polycomb Repressor Complex 2 promoter, an IL-10 promoter, or a CTCF promoter. In some embodiments, the fibroblast cell-specific promoter is flanked by loxP sites.” ([0032], page 13), and “the selectable marker gene encodes a fluorescent protein, such as but limited to Green Fluorescent Protein (GFP). In some embodiments, the vector comprises two selectable marker genes, the two selectable marker genes comprise a fluorescent protein, a protein sensitive to drug selection, a cell surface protein or any combination thereof.” ([0034], page 13-14). The FANTOM Consortium (Nature 507, 462–470 (2014). Doi:10.1038/nature13182) teaches a promoter-level mammalian expression atlas: “Regulated transcription controls the diversity, developmental pathways and spatial organization of the hundreds of cell types that make up a mammal. Using single-molecule cDNA sequencing, we mapped transcription start sites (TSSs) and their usage in human and mouse primary cells, cell lines and tissues …. We find that few genes are truly ‘housekeeping’, whereas many mammalian promoters are composite entities composed of several closely separated TSSs, with independent cell-type-specific expression profiles. TSSs specific to different cell types evolve at different rates, whereas promoters of broadly expressed genes are the most conserved. Promoter-based expression analysis reveals key transcription factors defining cell states and links them to binding-site motifs”(Abstract), and “Identities of cell types are determined by transcriptional cascades that start initially in the fertilized egg. In each cell lineage, specific sets of transcription factors are induced or repressed. These factors together provide proximal and distal regulatory inputs that are integrated at transcription start sites (TSSs) to control the transcription of target genes. Most genes have more than one TSS, and the regulatory inputs that determine TSS choice and activity are diverse and complex” (Page 462, left column, 2nd para.). Guo et al (J. Biol. Chem. (2021) 297(1) 100838, Doi: 10.1016/j.jbc.2021.100838) teach choice of selectable marker affects recombinant protein expression in cells and exosomes (title): “the choice of selectable marker gene has a significant impact on both the level of recombinant protein expression and the cell-to-cell variability in recombinant protein expression. Specifically, we observed that cell lines generated with the NeoR or BsdR selectable markers and selected in the antibiotics G418 or blasticidin, respectively, displayed the lowest level of recombinant protein expression as well as the greatest cell-tocell variability in transgene expression. In contrast, cell lines generated with the BleoR marker and selected in zeocin yielded cell lines that expressed the highest levels of linked recombinant protein, approximately 10-fold higher than those selected using the NeoR or BsdR markers, as well as the lowest cell-tocell variability in recombinant protein expression. Intermediate yet still-high levels of expression were observed in cells generated with the PuroR- or HygR-based vectors and that were selected in puromycin or hygromycin, respectively. Similar results were observed in the African green monkey cell line COS7. These data indicate that each combination of selectable marker and antibiotic establishes a threshold below which no cell can survive and that these thresholds vary significantly between different selectable markers. Moreover, we show that choice of selectable marker also affects recombinant protein expression in cell-derived exosomes, consistent with the hypothesis that exosome protein budding is a stochastic rather than determinative process” (Abstract).
The specification lacks sufficient variety of species to reflect this variance in the genus showing contemplated biological activity of fibroblast with increased regenerative activity expressing CD 105 marker and/or CD117 comprising an introduced vector comprising a cell-specific promoter coupled to at least one selectable marker gene using various conditioned media, bioactive compounds, agents to facilitate the incorporation of the mitochondria into the fibroblast cells. The specification does not provide sufficient descriptive support for the myriad of variant embraced by the claims.
Overall, what these statements indicate is that the Applicant must provide adequate description of such core structure and function related to that core structure such that the Artisan of skill could determine the desired effect. Hence, the analysis above demonstrates that Applicant has not determined the core structure for full scope of the claimed genus for contemplated fibroblast with increased regenerative activity expressing CD 105 marker and/or CD117 comprising an introduced vector comprising a cell-specific promoter coupled to at least one selectable marker gene using various conditioned media, bioactive compounds, agents to facilitate the incorporation of the mitochondria into the fibroblast cells.
The skilled artisan cannot envision the detailed functions and structure of the encompassed any fibroblast expressing CD 105 marker and/or CD117 to have regenerative activity using any conditioned media, bioactive compounds, agents to facilitate the incorporation of the mitochondria into the fibroblast cells other than those described in the specification, and therefore conception is not achieved until reduction to practice has occurred, regardless of the complexity or simplicity of the method of isolation. Adequate written description requires more than a mere statement that it is part of the invention and reference to a potential method of isolating it. See Fiers v. Revel, 25 USPQ2d 1601, 1606 (Fed. Cir. 1993) and Amgen lnc. v.Chugai Pharmaceutical Co. Ltd., 18 USPQ2d 1016 (Fed. Cir. 1991). Thus, it is concluded that the written description requirement is not satisfied for the claimed genus.
Withdrawn-Claim Rejections - 35 USC § 103
Claims 74-75, 83-84, 86, 94, 96-97, 99, 101, 148-149 were rejected under 35 U.S.C. 103 as being unpatentable over Kishore et al (herein Kishore, Pub. No.: US 2010/0135970 A1, Pub. Date: Jun. 3, 2010) in view of Ionas et al (herein Ionas, Pub. No.: US 2015/0023934 A1, Pub. Date: Jan. 22, 2015). In view of Applicants' amendment of base claim 74 and arguments, the previous rejections of claims are hereby withdrawn. Applicants' arguments with respect to the withdrawn rejections are thereby rendered moot. The claims are however subject to new rejections over the prior art of record, as set forth below
Claims 74, 87, 89-91, 93 were rejected under 35 U.S.C. 103 as being unpatentable over Kishore et al (herein Kishore, Pub. No.: US 2010/0135970 A1, Pub. Date: Jun. 3, 2010) in view of Ionas et al (herein Ionas, Pub. No.: US 2015/0023934 A1, Pub. Date: Jan. 22, 2015) as applied to claims Claims 74-75, 83-84, 86, 94, 96-97, 99, 101, 148-149 above, and further in view of Paliwal et al (herein Paliwal, Journal of Biomedical Science (2018) 25:31, Doi: /10.1186/s12929-018-0429-1). The rejection is withdrawn for the reasons discussed above.
Claims 74, 94, 95 were rejected under 35 U.S.C. 103 as being unpatentable over Kishore et al (herein Kishore, Pub. No.: US 2010/0135970 A1, Pub. Date: Jun. 3, 2010) in view of Ionas et al (herein Ionas, Pub. No.: US 2015/0023934 A1, Pub. Date: Jan. 22, 2015) as applied to claims 74-75, 83-84, 86, 94, 96-97, 99, 101, 148-149 above, and further in view of Martin-Rendon et al (herein Martin-Rendon, Pub. No.: US 2013/0108594 A1, Pub. Date: May 2, 2013). The rejection is withdrawn for the reasons discussed above.
Claims 102-103 were rejected under 35 U.S.C. 103 as being unpatentable over Kishore et al (herein Kishore, Pub. No.: US 2010/0135970 A1, Pub. Date: Jun. 3, 2010) in view of Ionas et al (herein Ionas, Pub. No.: US 2015/0023934 A1, Pub. Date: Jan. 22, 2015) and Reus et al (herein Reus, International Journal of Cardiology 221 (2016) 396–403, Doi: 10.1016/j.ijcard.2016.06.199). The rejection is withdrawn for the reasons discussed above.
New-Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 74-75, 83-84, 102-103, 148-149 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al (Cell Biol Int 40 (2016) 1008–1016, doi: 10.1002/cbin.10623, published 11 July 2016) in view of Ionas et al (Pub. No.: US 2015/0023934 A1, Pub. Date: Jan. 22, 2015).
Claim interpretation:
The specification of the claimed invention teaches that the isolated fibroblast regenerative cells express or are selected because they express CD105 marker and/or CD117 marker ([0006], page 2). Thus, fibroblast regenerative cells are interpreted as isolated fibroblast cells that express CD105 marker and/or CD117 marker.
The specification of the claimed invention teaches that Example 1 teaches enhanced expression of OCT-4 in cd105 purified fibroblasts: Fibroblasts derived from foreskin were obtained from ATCC, and Isolation of CD105 positive and negative cells was performed using magnetic activated cell sorting (MACS). Expression of OCT-4, a marker of stem cell potency, was assessed using flow cytometry for assessment of the intracellular OCT-4 protein, and in FIG.1, expression of OCT-4 was enhanced in cells that have been selected for expression of CD105 ([0143]-[0146], page 44-45). Example 2 teaches enhanced expression of NANOG in cd105 purified fibroblasts: Fibroblasts derived from foreskin were obtained from ATCC and Isolation of CD105 positive and negative cells was performed using magnetic activated cell sorting (MACS). Expression of Nanog, a marker of potency, was assessed using flow cytometry mouse polyclonal antibody against human Nanog purchased from Abcam, and in FIG. 2, expression of NANOG was enhanced in cells that have been selected for expression of CD105 ([0147]-[0150], page 45). Example 3 teaches enhanced expression of klf-4 in cd105 purified fibroblasts: Fibroblasts derived from foreskin were obtained from ATCC and isolation of CD105 positive and negative cells was performed using magnetic activated cell sorting (MACS). Expression of Nanog, a marker of potency, was assessed using flow cytometry mouse polyclonal antibody against human KLF-4 purchased from Abcam, and in FIG. 3, expression of KLF-4 was enhanced in cells which have been selected for expression of CD105 ([0151]-[0154], page 46). Example 4 teaches enhanced expression of immune modulatory cytokine il-10 by cd105 selected fibroblasts: Fibroblasts derived from foreskin were obtained from ATCC and isolation of CD105 positive and negative cells was performed using magnetic activated cell sorting (MACS). Cells were cultured with allogeneic lymphocytes at a 1: 1 ratio for 72 hours and production of IL-10 was assessed by ELISA (R&D Systems), and in FIG. 4, an increased production of IL-10 was observed in the CD105 selected fibroblasts ([0155]-[0157], page 46-47). Thus, fibroblast regenerative cells are interpreted as having enhanced expression of OCT-4, Nanog KLF-4 and IL-10.
Regarding to claims 74, 102, 103, Lee et al teach identification of a distinct subpopulation of fibroblasts from murine dermis: CD73-CD105+ as potential marker of dermal fibroblasts subset with multipotency (Title): “Isolated murine dermal cells exhibited a fibroblast phenotype as judged by accepted criteria including a lack of MSC-related antigens and the differentiation potential of MSCs, and the positive expression of fibroblast markers. A comparative analysis demonstrated that CD73-CD105+ but not CD73-CD105- dermal fibroblasts exhibited some of the functional properties of MSCs …... Overall, these results suggest that CD73-CD105+ cells are a distinct subset of dermal fibroblasts with multipotency and that their surface antigens could help to classify this subpopulation. These cells may contribute to the regeneration of damaged tissue” (Abstract). Lee et al teach Figure 2 Passage-dependent expression of CD105 and differentiation capacity of isolated murine dermal fibroblasts (Figure 2, Page 1012)
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Lee et al do not teach vector comprising a cell-specific promoter coupled to at least one selectable marker gene. Ionas et al cure the deficiency. Ionas et al teach methods for isolating or purifying fibroblast cells using markers such as CD105 and c-kit (CD117) ([0063]-[ 0064], page 7). A gene that encodes a selectable marker (for example, resistance to antibiotics or drugs, such as amplicillin, G418, and hygromycin) can be introduced into host cells along with the gene of interest and the gene encoding a selectable marker can be introduced into a host cell on the same plasmid as the gene of interest or can be introduces on a separate plasmid ([0129], page 34). Mouse embryonic fibroblasts (MEFs) containing the Nanog-CreER transgene carrying Nanog promoter can be used to perform lineage-marking of cells that express Nanog during direct conversion ([0242], page 46).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art before the effective filing date of the rejected claims to combine the teachings of prior art to modify the CD73-CD105+ dermal fibroblasts of Lee et al by using plasmid carrying cell-specific promoter such as Nanog promoter and a selectable marker as taught by Ionas et al as instantly claimed, with a reasonable expectation of success. Said modification amounting to combining prior art elements according to known methods to yield predictable results. One of ordinary skill in the art would have been motivated to do so because Ionas et al teach that it is essential to use an inducible Cre driver under the control of the Nanog promoter, since a constitutively active Cre would promote Cre-reporter expression in pluripotent epiblast cells ([0242], page 46) that can be used to generate mouse embryonic fibroblasts (MEFs) containing the Nanog-CreER ([0243], page 46). Additionally, Ionas et al teach cells (such as embryonic fibroblasts, mouse dermal fibroblasts, or BJ normal human foreskin fibroblasts) can harbor an expression vector (for example, one that contains a gene encoding Oct4. SoX2, Klf4, or c-Myc) via introducing the expression vector into an appropriate host cell via methods known in the art ([0131], page 34). A gene that encodes a selectable marker so that cells containing the gene of interest can be identified by drug selection wherein cells that have incorporated the selectable marker gene will survive in the presence of the drug ([0129], page 34). Moreover, Ionas et al provide explicit advantage of using conversion protocol of reprogrammed fibroblasts that was highly efficient ([0216]-[0217], page 44). One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Ionas et al was successful in reprogramming mouse and human fibroblast cells in culture ([0231], page 45) with detailed instructions, working examples and data.
Regarding to claims 102, 103, Lee et al teach CD73-CD105+ dermal fibroblasts (Abstract). Thus, CD73-CD105+ dermal fibroblasts do not express CD73. Lee et al also teach “subpopulations of fibroblasts in murine dermal cells isolated from neonatal mice: …. FACS analysis showed that these cells were negative for CD45 and CD11b, which are hematopoietic and immune cell markers, respectively. In contrast, these cells were positive for the mouse MSC markers Sca1, CD106, CD105, CD90, CD44, and CD29 (Figure 1A). However, even using antibodies from two different companies, the cells were negative for CD73, another MSC marker” (Page 1010, right column, 3rd para.).
Regarding claim 103, the claimed “A master cell bank comprising a plurality of packaged population”, Lee et al teach “CD105-based MACS sorted cells, we demonstrate that CD73-CD105+cells are a distinct subpopulation of fibroblasts in murine dermis” (Page 1015, right column, 2nd para.). Thus, a person of ordinary skill in the art would keep this subpopulation separately as a cell bank in different packages for future use.
Regarding to claim 75, as evidenced by applicant own disclosure showing enhanced expression of OCT-4 in isolated CD105 fibroblasts: Example 1: Fibroblasts derived from foreskin were obtained from ATCC, and Isolation of CD105 positive and negative cells was performed using magnetic activated cell sorting (MACS). Expression of OCT-4, a marker of stem cell potency, was assessed using flow cytometry for assessment of the intracellular OCT-4 protein, and in FIG.1, expression of OCT-4 was enhanced in cells that have been selected for expression of CD105 ([0143]-[0146], page 44-45).
Regarding to claims 83, 84, Ionas et al teach “the medium also can be supplemented electively with one or more components from any of the following categories: (1) salts, for example, magnesium, calcium, and phosphate; (2) hormones and other growth factors such as, serum, insulin, transferrin, epidermal growth factor and fibro blast growth factor; ….” ([0141], page 35).
Regarding to claim 148, Ionas et al teach mouse embryonic fibroblasts (MEFs) containing the Nanog-CreER transgene carrying Nanog promoter can be used to perform lineage-marking of cells that express Nanog during direct conversion ([0242], page 46).
Regarding to claim 149, Ionas et al teach TALEN technology can undoubtedly lead to its application for chromosomal engineering, as is now commonly performed using Cre-loxP technology ([0268], page 49), and Cre-loxP recombination can be used to remove inserted drug-selection cassettes ([0266], page 48). Thus, Cre-loxP technology is recognized in the art to be commonly used in genetic engineering, thereby a person of ordinary skill would be able to use loxP sites for constructing vector with loxP sites flanking a cell-specific promoter.
Claims 86, 94, 96-97, 99, 101 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al (Cell Biol Int 40 (2016) 1008–1016, doi: 10.1002/cbin.10623, published 11 July 2016) in view of Ionas et al (Pub. No.: US 2015/0023934 A1, Pub. Date: Jan. 22, 2015) as applied to claims 74-75, 83-84, 102-103, 148-149 above and further in view of Kishore et al (Pub. No.: US 2010/0135970 A1, Pub. Date: Jun. 3, 2010).
The teachings of Lee et al and Ionas et al above are incorporated herein in their entirety.
Lee et al and Ionas et al do not teach NaCl solution, angiogenesis further comprises stimulation of human umbilical vein endothelial cell (HUVEC) proliferation, production of collateral blood vessels, collateral blood vessels are in an ischemic cardiac tissue or an ischemic limb tissue. Kishore et al cure the deficiency. Kishore et al teach methods method involves contacting a somatic cell (e.g., fibroblast) containing a permeable cell membrane with an embryonic stem cell extract, thereby generating a de-differentiated cell. The de-differentiated cell expresses an embryonic stem cell marker not expressed in the somatic cell such as Nanog, SCF, SSEA1, Oct-4, and c-Kit (c-Kit is CD117). ([0004] - [0005], page 1).
Regarding to claim 86, Kishore et al teach the compositions can be isotonic……. The desired isotonicity of the compositions of this invention may be accomplished using sodium chloride…… ([0074], page 8). Since the dilution of sodium chloride is routinely performed in the art, one of ordinary skill would know how to prepare 0.8%-1% NaCl solution.
Regarding to claims 94 and 96, Kishore et al teach therapeutic and prophylactic Applications: In one embodiment, transplanted cells of the invention function in blood vessel formation to increase perfusion in a damaged tissue or organ, improving organ biological function, reducing apoptosis, and/or reducing fibrosis ([0064], page 6), and “angiogenesis” is meant the growth of new blood vessels originating from existing blood vessels ([0017], page 3). The method increases blood vessel formation in the tissue or organ by at least about 5%, 10%, 25%, 50%, 75% or more compared to a corresponding untreated control tissue or organ ([0013], page 2). Methods for evaluating angiogenesis and vasculogenesis are standard in the art and are described herein ([0069], page 7).
Regarding to claim 97, Kishore et al teach that in still other embodiments, the method repairs post-infarct ischemic damage in a cardiac tissue. In still other embodiments, the method repairs hind limb ischemia in a skeletal muscle tissue ([0013], page 2).
Regarding to claim 99, Kishore et al teach the invention provides a method of treating a subject suffering from or susceptible to a disease characterized by a deficiency in cell number or excess cell death…… autologous cells could be generated for use in any tissue repair or regeneration indication, including but not limited to, myocardial infarction, congestive heart failure, stroke, ischemia, peripheral vascular diseases, …... ([0065], page 7).
Regarding to claim 101, Kishore et al teach compositions of the invention include pharmaceutical compositions comprising reprogrammed cells or their progenitors and a pharmaceutically acceptable carrier ([0070], page 7-8).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art before the effective filing date of the rejected claims to combine the teachings of prior art to modify the CD105+ fibroblasts of the above references by using teachings as taught by Kishore et al as instantly claimed, with a reasonable expectation of success. Said modification amounting to combining prior art elements according to known methods to yield predictable results. One of ordinary skill in the art would have been motivated to do so because Kishore et al teach that transplantation of reprogrammed NIH3T3 cells (fibroblast cells) significantly improved post-MI left ventricular function, decreased fibrosis, enhanced capillary density and the transplanted cells trans-differentiated into cardiomyocytes and endothelial cells ([0060], page 6). Additionally, 3T3/D3 transplanted ischemic limbs displayed a significantly higher number of capillaries, suggesting enhanced neo-vascularization as well a higher proliferation of transplanted 3T3/D3 cells, in vivo (FIGS. 12C, 12D) ([0130], page 17).One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Kishore et al were successful in generation of fibroblast cells that can be used for improving ventricular function, decreased fibrosis, enhanced capillary density and for transplanting ischemic limbs with a significantly higher number of capillaries and enhanced neo-vascularization with detailed instructions, working examples and data.
Claims 87, 89-91, 93 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al (Cell Biol Int 40 (2016) 1008–1016, doi: 10.1002/cbin.10623, published 11 July 2016) in view of Ionas et al (Pub. No.: US 2015/0023934 A1, Pub. Date: Jan. 22, 2015) as applied to claims 74-75, 83-84, 102-103, 148-149 above, and further in view of Paliwal et al (Journal of Biomedical Science (2018) 25:31, Doi: /10.1186/s12929-018-0429-1).
The teachings of Lee et al and Ionas et al above are incorporated herein in their entirety. The above references do not teach exogenous mitochondria. Paliwal et al cure the deficiency.
Regarding to claim 87, 93, Paliwal et al teach regenerative abilities of mesenchymal stem cells through mitochondrial transfer (Title) and cells such as fibroblast and somatic cells have also shown the ability to transfer mitochondria (Page 2, left column, 1st para.). Also, uptake of mitochondria isolated from stem cells has also been observed (Page 6, right column, 1st para.)
Regarding to claim 89, Paliwal et al teach Mitochondrial transfer has been found to be mediated by different modes that include tunnel tube formation, gap junctions, micro vesicles, cell fusion and transfer of isolated mitochondria (Page 4, right column, last para). Paliwal et al teach “confirmed formation of intercellular F-actin connections showing mitochondrial transfer and partial cell fusion as mechanism of cell repair” (Page 7, right column, 2nd para.).
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Regarding to claim 90, Paliwal et al teach several studies have shown that various mechanisms are involved in mitochondrial transfer that includes tunnel tube formation, microvesicle formation, gap junctions, cell fusion and others modes of transfer (Abstract).
Regarding to claim 91, Paliwal et al teach cytosolic calcium ions and cellular bioenergetics levels of ATP and glucose are also considered as major players in regulating movement of mitochondria (Page 7, left column, 1st para.). Since Kishore et al teach NIH3T3 Swiss-Albino fibroblasts (ATCC) were cultured in DMEM (Sigma-Aldrich) with……. Sodium pyruvate ([0134], page 18). Since the calcium and level of ATP are important of mitochondria movement, it is obvious for one of the ordinary skill in the art to add calcium and/or Sodium pyruvate to regulate ATP production level to optimize for the mitochondria transfer.
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art before the effective filing date of the rejected claims to combine the teachings of prior art to modify the fibroblast regenerative cell composition of the above references by administering mitochondria to the fibroblast regenerative cell before being used in treatment of degenerative diseases as taught by Paliwal et al, as instantly claimed, with a reasonable expectation of success. Said modification amounting to combining prior art elements according to known methods to yield predictable results. One of ordinary skill in the art would have been motivated to do so because Paliwal et al teach mitochondrial dysfunction is associated with a majority of degenerative diseases like ischemic heart diseases, lung disorders, stroke, etc (Page 1, right column, 1st para.), and mitochondrial transfer from stem cells can prove to be an effective therapeutic strategy to treat several cardiomyopathies (Page 8, left column, 1st para.). One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Paliwal et al teach mitochondrial transfer have been successfully performed from different tissue specific MSCs to recipient cells of different origins (Page 3, table 1).
Claims 95 is rejected under 35 U.S.C. 103 as being unpatentable over Lee et al (Cell Biol Int 40 (2016) 1008–1016, doi: 10.1002/cbin.10623, published 11 July 2016) in view of Ionas et al (Pub. No.: US 2015/0023934 A1, Pub. Date: Jan. 22, 2015) and Kishore et al (Pub. No.: US 2010/0135970 A1, Pub. Date: Jun. 3, 2010) as applied to claims 74-75, 83-84, 86, 94, 96-97, 99, 101, 102, 103, 148-149 above, and further in view of Martin-Rendon et al (Pub. No.: US 2013/0108594 A1, Pub. Date: May 2, 2013).
The teachings of Lee et al and Ionas et al and Kishore et al above are incorporated herein in their entirety. The above references do not teach stimulation of human umbilical vein endothelial cell (HUVEC) proliferation. Martin-Rendon et al cure the deficiency.
Regarding to claim 95 Martin-Rendon et al teach method for evaluating angiogenic potential (Title). The sample is obtained from the subject’s heart or vascular tissue comprising cardiomyocytes or associated cardiac fibroblasts or vascular cells (e.g., claims 50, 51). Therapeutic angiogenesis can promote the development of collateral blood vessels in ischemic tissues, (e.g., in coronary arterial disease (CAD), peripheral arterial disease (PAD), cerebral ischemia) ([0011], page 2). Martin-Rendon et al teach FIG. 12: Enhancement of endothelial cell proliferation. HUVEC were incubated with conditioned media …… ([0106], page 9). Since Martin-Rendon et al teach there is a correlation between cell proliferation and pro-angiogenic ability ([0116], page 11), and Kishore et al teach angiogenesis with increasing blood vessel formation in the tissue or organ ([0013], page 2), a person of ordinary skill in the art would expect enhancement of endothelial cell proliferation such as HUVEC with increasing blood vessel formation.
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art before the effective filing date of the rejected claims to combine the teachings of prior arts of the above references with Martin-Rendon et al to evaluate angiogenic potential by studying enhancement of proliferation endothelial cell such as HUVEC as instantly claimed, with a reasonable expectation of success. Said modification amounting to combining prior art elements according to known methods to yield predictable results. One of ordinary skill in the art would have been motivated to do so because Martin-Rendon et al teach a correlation between cell proliferation and pro-angiogenic ability has been observed ([0026], page 3), and provide methods for predicting efficacy of angiogenic therapy, for preparing a predictive model for predicting angiogenic potential (Abstract). Also, therapeutic angiogenesis can promote the development of collateral blood vessels in ischemic tissues, (e.g., in coronary arterial disease (CAD), peripheral arterial disease (PAD), cerebral ischemia) and delayed wound healing ([0011], page 2). One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Martin-Rendon et al were successful in enhancement of proliferation of endothelial cell such as HUVEC ([0106], page 9, Figure 12), with working examples and data.
Conclusion
No claim is allowed.
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/KHOA NHAT TRAN/Examiner, Art Unit 1632
/PETER PARAS JR/Supervisory Patent Examiner, Art Unit 1632