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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 8/26/2025 has been entered.
Claims status
Claims 5, 33, 37 are cancelled and claims 47-59 is/are newly added. Claims 1-4,19, 21, 22, 28-32, 36, 39-59 is/are currently pending with claims 1, 3-4, 21, 22, 28-32, 36, 39-43 is/are withdrawn. Claims 2, 19, 44-59 is/are under examination.
Claim Objections
Objection to Claim 2 is withdrawn in light of amendment to the claim.
Claim Suggestions
Claim 48 recites “wherein the increased RYR2 protein function is caused by one or more mutations in RYR2”. Claim depends from claim 2 that now recites “one or more mutations in […] (RYR2) gene”. For the sake of uniformity across the claim set, following language is suggested for claim 48: “wherein the increased RYR2 protein function is caused by one or more mutations in RYR2 gene”.
Claim 49 recites “wherein the mutation in RYR2 causes”. Claim depends from claim 48 which depends from claim 2 that now recites “one or more mutations in […] (RYR2) gene”. For the sake of uniformity across the claim set, following language is suggested for claim 49: “wherein the one or more mutations in RYR2 gene causes”.
Claim Rejections - 35 USC § 112(b)
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.
Rejection of Claims 48 and 49 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 is withdrawn in light of amendment to claim 48.
Claim Rejections - 35 USC § 112(d)
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.
Rejection of Claims 48, 49 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 is withdrawn because claim 2, that these claims depend from, has been broadened to include limitations previously recited in claims 48 and 49. Thus, claims 48 and 49 no longer broaden claim 2.
Claims 50, 51, 53-56 remain 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.
Claims 50, 51, 53-56 broaden the cardiac disorders recited in claim 2. While claim 2 limits the cardiac disorders to disorders associated with one or more mutations in RYR2 gene, claim 50 broadens its to include any arrhythmia, including acquired arrhythmias such as recited in claims 51, 53-55 which may be associated with abnormal RYR2 function but are not known to be associated with RYR2 gene mutation(s). Similarly, claim 56 broadens the cardiac disorder of claim 2 to include heart failure, which is not associated with RYR2 gene mutations. Thus, claims 50, 51, 53-56 broaden the cardiac disorders of claim 2 to include cardiac disorders NOT associated with RYR2 gene mutations.
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 § 112(a)
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.
Written Description
Previous rejection of claims 50, 51, 53-56 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 is withdrawn in favor of the rejection below that includes further teachings from additional prior art (Herttualla) that further support the conclusion that the claims require essential or critical elements which are not conventional in the art before the effective filing date
Claims 50, 51, 53-56 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.
In making a determination of whether the application complies with the written description requirement under 35 U.S.C. 112(a) or 35 U.S.C. 112, first paragraph, it is necessary to understand what Applicant is claiming and what Applicant has possession of.
Claims 50, 51, 53-56 recite methods of treating cardiac disorders associated with mutations in RYR2 gene wherein the cardiac disorder is any arrythmia including acquired arrythmias such as recited in claims 53-55 or heart failure recited in claim 56.
The specification teaches that heart arrythmias could be caused by direct or indirect dysregulation of Ca2+ release and RYR2, a ER Ca2+ channel, is a key regulator of Ca2+ release [Background]. The specification also teaches some forms of arrhythmias such as atrial fibrillation that involve abnormal RYR2 function [Background]. The specification also teaches CPVT, a malignant inherited arrhythmia (page 9, para 1). The specification references – Jiang, Liu or Postma - on page 62, para 2 that each teach CPVT-associated RYR2 mutations. The examples provided use cardiomyocytes from CPVT mouse model (Example 2) and CPVT mouse models with a RYR2 mutation (Example 3). The specification suggests that “Our findings on CPVT serve as a proof-of-concept” since “dysfunction of RYR2 is a final common pathway underlying diverse cardiac arrhythmias” (page 9, para 1).
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.
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When disclosing cardiac disorders, the specification provides the following description repeated through the specification (See image of para 3 on page 62).
Thus, the specification fails to disclose acquired arrythmias or heart failure that are associated with a RYR2 mutation. The mutations disclosed for RYR2 are associated with CPVT, one form of inherited arrhythmia. No other mutation is disclosed or is known in the art such that a skilled artisan could ascertain what are these RYR2-mutation associated acquired arrythmias or heart failure that are embraced by the claims.
Kistamas et al (Front. Pharmacol. 11:72, February 2020; ref of record) provide a recent review of cardiac arrhythmias due to calcium dysregulation, and the role of RYR2 in calcium regulation as well as dysregulation (See section Calcium Pathophysiology, Arrythmia mechanisms; Figure 4 and 5). Although they teach several RYR2 mutations known to be associated with CPVT (Table 1), they do not teach any mutation in RYR2 that is associated with the acquired arrythmias or heart failure (See section: Acquired Syndromes).
Herttualla et al (Molecular Therapy Vol. 25 No 5 May 2017) teach gene therapies for heart failure (Table 2). However the target genes for these therapies (such as SERCA2a, SDF1 or AC6) are primarily to boost contractility in a failing heart but are not known to be mutated in heart failure (page 1101, para 1, 2). Critically, they do not teach RYR2 mutations associated with heart failure.
A skilled artisan cannot envision acquired arrythmias or heart failure embraced by the claims that are associated with RYR2 mutations. The claims require essential or critical elements which are not adequately described in the specification, and are not conventional in the art before the effective filing date. Thus, a skilled artisan cannot reasonably conclude that the inventor or a joint inventor, at the time the application was filed, had possession of the claimed invention.
Enablement/ Scope of Enablement
Claims 50 and 51 remain rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for a method of treating an inherited arrhythmia associated with a RYR2 gene mutation, does not reasonably provide enablement for method of treating any other form of arrhythmia, especially acquired forms of arrhythmia.
The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to use the invention commensurate in scope with these claims.
Claims 53-56 remain rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement.
The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
There are many factors to be considered when determining whether there is sufficient evidence to support a determination that a disclosure does not satisfy the enablement requirement and whether any necessary experimentation is “undue.” See MPEP § 2164. These factors include, but are not limited to: the breadth of the claims, the nature of the invention, the state of the prior art, the level of one of ordinary skill, the level of predictability in the art, the amount of direction provided by the inventor, the existence of working examples, the quantity of experimentation needed to make or use the invention based on the content of the disclosure.
The office has analyzed the specification in direct accordance to the factors outlines in In re Wands. MPEP 2164.04 states: “[W]hile the analysis and conclusion of a lack of enablement are based on factors discussed in MPEP 2164.01(a) and the evidence as whole, it is not necessary to discuss each factor in written enablement rejection.” These factors will be analyzed, in turn, to demonstrate that one of ordinary skill in the art would have had to perform “undue experimentation” to make and/or use the invention and therefore, applicant’s claims are not enabled.
(A) With respect to the breadth of the claims, the specification defines “the terms "treatment" or "to treat" refer to both therapeutic and prophylactic treatments” (page 60, line 5). Treatments provided prophylactically are for prevention purposes. Therefore, claims as currently drafted encompass methods of treating and preventing any form of arrhythmia including methods that treat and prevent acquired forms of arrhythmia such as recited in claims 53-55. Furthermore, claim 56 embraces a method that treats and prevents heart failure.
The broadest reasonable interpretation of the term “preventing” encompasses methods that stop any subject under any condition from ever developing the recited cardiac disorders.
Consequently, the breadth of claims is expansive.
(B), (F), (G) The nature of the invention, the amount of direction and working examples provided by the Applicant: The invention is in the field of treatment as well as prevention of cardiac disorders associated with mutations in RYR2 gene that result in increased RYR2 protein function. The method is a gene therapy method that uses transgene expression of polypeptides comprising C-terminal domain(s) of MYBPC3 protein that inhibit increased RYR2 protein function resulting from the RYR2 mutation.
The applicants have provided working examples directed to treatment of CPVT in a mouse model comprising a mutation in the RYR2 gene (R176Q mutation, example 3). In this example, 3 day old mice were intramuscularly injected with an AAV vector comprising MYBPC3 full length protein or C-terminal fragments operably linked to cTNT promoter (Figure 4A). Injected animals were tested in adulthood to show treatment efficacy (Figure 4E-H, 5B). Applicants also provided working example using hiPSC-derived cardiomyocytes obtained from CPVT patients with a S404 mutation (Example 2, Fig 17) wherein they show the efficacy of MYBPC3 full length protein or C-terminal fragments when delivered using the AAV vector used in the mouse studies.
As noted in the written description rejection above, the specification fails to disclose acquired arrythmias or heart failure that are associated with a RYR2 mutation. The MPEP 2164 guides that “The enablement requirement of 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, is separate and distinct from the written description requirement. Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563, 19 USPQ2d 1111, 1116-17 (Fed. Cir. 1991)”.
For the instant rejection, the specification does not provide working examples for treating any form of acquired arrhythmia, including the forms recited in claims 53-55. The specification does not provide working examples for treating heart failure. Critically, the specification does not provide any working examples to prevent acquired arrhythmias or heart failure.
(C), (D), (E) With respect to the state of the prior art, the level of one of ordinary skill and predictability of the art: Ca2+ dysregulation due to RYR2 dysfunction is known to be associated with cardiac disorders. Inhibiting RYR2 hyperactivity by various means is also known in the art.
Regarding RYR2 function and dysfunction in the heart, Marx et al (Journal of Molecular and Cellular Cardiology, 2013; ref of record) provide a detailed review of RYR2 in normal heart function (Section 1) and the complex mechanism of calcium handling that RYR2 is a part of (Section 2 and Figure 1). RYR2 function is regulated by several upstream molecules including endocrine molecules and receptors, kinases and second messengers expressed in cardiomyocytes (Figure 2). A alteration or disruption in any of these molecules upstream of RYR2 could result in increased RYR2 function, directly or indirectly. Although binding and inhibitory effect of MYBPC3 protein and its C-terminus on RYR2 function was taught by Stanczyk (Journal of Cell Science, 2018; ref of record) (Figure 1 and 5), neither the art nor the instant specification teach the precise mechanism for how MYBPC3 inhibits RYR2 or even where the binding site is on RYR2 channel. Thus, it is unpredictable that MYBPC3 or its C-terminal fragment could inhibit increase in RYR2 function resulting from any means other than the gain-of-function mutations disclosed. For example, it is unpredictable if the MYBPC3 or its C-terminal fragment could inhibit increase in RYR2 function when the increase in function is due to an increase in function of an upstream molecule or alteration of calcium gradient across the ER etc.
Marx further discusses heart failure and the array of molecular dysfunction that emerges affecting a variety of molecules (RYR2, SERCA, Phospholamban, NCX etc) (page 227, last para). When discussing the role of RYR2 in heart failure (Section 3), Marx teaches that heart failure induces RYR2 leakiness due to chronic increase in beta-adrenergic stimulation resulting in depletion of calstabin 2 from the RYR2 channel complex (page 228, left column, para 1). Thus, it is unpredictable that MYBPC3 or its C-terminal fragment could inhibit RYR2 leakiness caused by increased beta-adrenergic stimulation seen in heart failure. Critically, it is unpredictable that RYR2 inhibition could prevent heart failure since RYR2 leakiness emerges as an downstream effect of heart failure. The specification does not teach that MYBPC3 treatment could treat and prevent heart failure, including if MYBPC3 can reduce heart failure induced RYR2 leakiness.
Similarly, Kistamas et al (Front. Pharmacol., February 2020) teaches diverse causal factors the result in acquired arrhythmias (page 15, right column, para 3; page 16, left column, para 2). The specification does not teach that MYBPC3 treatment could treat and prevent acquired arrhythmia and there is no predictability that MYBPC3 treatment could treat and prevent acquired arrhythmia that have varied causal mechanisms.
(H) Undue experimentation would be required to practice the invention as claimed due to the amount of experimentation necessary because of the expansive breadth of the claims that encompass both treatment and prevention of a broad class of cardiac disorders and the limited amount of guidance in the specification that is only directed to cardiac disorders caused by RYR2 mutations that increase RYR2 function.
MPEP §2164.01(a), 4th paragraph, provides that, “A conclusion of lack of enablement means that, based on the evidence regarding each of the above factors, the specification, at the time the application was filed, would not have taught one skilled in the art how to make and/or use the full scope of the claimed invention without undue experimentation. In re Wright, 999 F.2d 1157, 1562; 27 USPQ2d 1510, 1513 (Fed. Cir. 1993).
Genentech Inc. v. Novo Nordisk A/S, 42 USPQ2d 1001, 1005 (CA FC), states that, “[p]atent protection is granted in return for an enabling disclosure of an invention, not for vague intimations of general ideas that may or may not be workable,” citing Brenner v. Manson, 383 U.S. 519, 536 (1966) (stating, in the context of the utility requirement, that “a patent is not a hunting license. It is not a reward for search, but compensation for its successful conclusion”). The Genentech decision continued, “tossing out the mere germ of an idea does not constitute enabling disclosure. While every aspect of a generic claim certainly need not have been carried out by an inventor, or exemplified in the specification, reasonable detail must be provided in order to enable members of the public to understand and carry out the invention.” Id. at p. 1005.
After applying the Wands factors and analysis to claims 50, 51, 53-56, in view of the applicant’s entire disclosure, and considering the In re Wright, In re Fisher and Genentech decisions discussed above, it is concluded that the practice of the invention as claimed would not be enabled for a method of treating and preventing any acquired arrhythmia or heart failure. Therefore, claims 50, 51, 53-56 are rejected under 35 U.S.C. §112(a) for failing to disclose sufficient information to enable a person of skill in the art to practice the claimed invention commensurate with the scope claimed.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Rejection of Claims 2, 19, 48-52 under 35 U.S.C. 103 as being unpatentable over Priori (US 20210030894 A1, effective filing date April 5, 2018; ref of record) in view of Stanczyk et al (Journal of Cell Science, 2018; ref of record) as evidenced by NCBI RNA Fundamentals (ref of record) is withdrawn because claim 2 is amended to recite specific sequences that are not explicitly taught by Priori or Stanczyk.
Claims 2, 19, 48-52, 57-59 are rejected and claims 44-47 remain rejected under 35 U.S.C. 103 as being unpatentable over Priori (US 20210030894 A1, effective filing date April 5, 2018; ref of record) in view of Stanczyk et al (Journal of Cell Science, 2018; ref of record) in view of NP_000247.2, NCBI Reference Sequence of myosin-binding protein C, cardiac-type [Homo sapiens] (available online since June 5, 2007, ref of record) and NP_032679.2, NCBI Reference Sequence of myosin-binding protein C, cardiac-type [Mus musculus] (available online since March 23, 2007, ref of record) as evidenced by NCBI RNA Fundamentals (ref of record).
Regarding claim 2, Priori teaches a method of treating catecholaminergic polymorphic ventricular tachycardia (CPVT), an inherited arrhythmia, in a patient which arises due to gain-of function mutation in RYR2 gene ( = mutation that results in increased protein function as required for claim 2; [0003], lines 1-4, 18-21, Example 1).
Regarding claims 48-52, Priori teaches CPVT which is an inherited arrhythmia caused by gain-of-function mutation (i.e. excessive protein activity) in RYR2 gene and the RYR2 protein functions to release Ca2+ during diastolic phase ([0003], lines 1-4, 18-21). Therefore, Priori teaches a method of treating a cardiac disorder as required for claims 2, 48-52.
Priori’s method comprises delivering to a patient a transgene encoding calsequestrin 2 (CASQ2) gene via viral gene therapy ([0003], lines 4-10). Vector taught include “plasmids, DNA vectors, RNA vectors, virions, or other suitable replicon (e.g., viral vector) ([0088], line 6 and [0110]). In their examples, Priori use recombinant AAV 2/9 vector ([0111], [0143], [0148]). Therefore, Priori teaches a method of treating a cardiac disorder associated with RYR2 gene mutations that increase RYR2 function, the method comprising administering to a subject a viral vector such as rAAV comprising a nucleotide sequence encoding a polypeptide. Priori teaches CASQ2 as the polypeptide.
Regarding claim 19, Priori teaches vectors such as “plasmids, DNA vectors, RNA vectors, virions, or other suitable replicon (e.g., viral vector)” ([0088], line 6). Compared to other types of RNA, such tRNA and rRNA etc, messenger RNAs are translated to form polypeptides therefore RNA vectors (as taught by Priori) that result in expression of a polypeptide are mRNA (See NCBI RNA Fundamentals in PTO-892). Therefore, Priori teaches RNA vectors that comprise mRNA nucleotide sequences.
Regarding claims 57-59, Priori teaches rAAV 2/9 i.e. a recombinant AAV vector with AAV9 serotype capsid (Example 1, [0111], [0143], [0148]).
Priori does not teach a polypeptide comprising C-terminal domain of MYBPC3 and thus does not teach the amino acid sequences of SEQ ID NOs: 3, 5, 11 or 13.
Stanczyk teaches MYBPC3 protein and its C-terminal fragments that interact with RYR2 protein (Figure 1, 2) and that MYBPC3 interaction with RYR2 suppresses RYR2 mediated spontaneous Ca2+ release (Figure 5). Stanczyk also teaches that functional alterations of RYRs are associated with several human diseases, specifically RYR2 mutations have a direct causative role in the heart rhythm disorders such as CPVT (page 1, right column, para 2). Their results show that c-terminal domains of MYBPC3 (domain C5-C10) interact with N-terminal domains of RYR2 and this interaction inhibits RYR2 function (Figure 5) and they suggest that this interaction could be relevant for arrhythmic cardiomyopathies that are known to be caused by leaky RYR2 channel with increased spontaneous Ca2+ release (page 6, right column, para 1, line 1).
Furthermore, Stanczyk specifically teaches the binding between RYR2 and various MYBPC3 C-terminus fragments and, that the fragment containing C6-C8 domains has the strongest binding with RYR2 (Figure 2B). Figure 2A shows the structure of MYBPC3 C-terminus (amino acid 650-1274) and the various domains (C5 to C10 domains), including C6-C8 fragment (C6 domain starts at amino acid 770 and C8 domain ends at amino acid 1065). Table S1 lists primers that were used to extract the various MYBPC3 C-terminus fragments from human MYBPC3 cDNA to generate human MYBPC3 protein and its fragments used. Figure 5 shows that the c-terminal fragment of MYBPC3 (C6-C10) reduces RYR2 mediated spontaneous Ca2+ leak.
Regarding the amino acid sequences recited in claims 2, 44-47, SEQ ID No. 5 and 13 are a 501 amino acid fragment of MYBPC3 C-terminus comprising C6-C10 domains derived from mouse and human respectively. SEQ ID No. 3 and 11 are a 292 amino acid fragment of MYBPC3 C-terminus comprising C6-C8 domains derived from mouse and human respectively.
Although Stanczyk teaches the c-terminal fragment of MYBPC3 including the fragment C6-C8, Stanczyk does not explicitly teach the exact amino acid sequence of a MYBPC3 protein or its fragments.
NP_000247.2 (human) and NP_032679.2 (mouse) teach the sequence of human and mouse MYBPC3 protein. Using the teachings of Stanczyk regarding the structure of MYBPC3 C-terminus (amino acid 650-1274) that comprises the C6-C8 domains (amino acid 770-1065) and, the sequence of human and mouse MYBPC3 protein taught by NP_000247.2 (human) and NP_032679.2 (mouse), an ordinary artisan would derive polypeptide sequences identical to sequences recited in claims 44-47 (see sequence alignments below).
Therefore, it will be obvious to person of ordinary skill in the art before the effective filing date of the claimed invention to utilize the teaching of Stanczyk regarding MYBPC3-inhibition of RYR2 and modify the method of treatment of CPVT, taught by Priori, by substituting CASQ2 of Priori with MYBPC3 or its C-terminal fragments taught by Stanczyk. It would be further obvious to a person of ordinary skill in the art before the effective filing date, when combining Priori with Stanczyk, to use the human and/or mouse MYBPC3 polypeptide sequences taught by NP_000247.2 (human) and NP_032679.2 (mouse) that comprise sequences identical to SEQ ID No. 3, 5, 11 and 13.
Owing to Stanczyk’s teachings, an ordinary artisan would recognize that MYBPC3 and its C-terminal fragments suppress RYR2-mediated spontaneous Ca2+ release and would be motivated to use MYBPC3 and its C-terminal fragments to inhibit excess RYR2 function observed in CPVT which results from gain-of-function mutations in RYR2 (as taught by Priori). Furthermore, an ordinary artisan would be motivated to use sequences taught by NP_000247.2 (human) and NP_032679.2 (mouse) to generate viral vectors encoding human and/or mouse MYBPC3 polypeptide sequences because viral vectors with mouse sequences would be useful for preclinical studies with mouse models while human sequences would be useful for studies with human cells.
An ordinary artisan would reasonably expect to administer MYBPC3 or its C-terminal fragments as taught by Stanczyk to a subject using viral vectors to treat cardiac disorders because Priori teaches the design and delivery of transgenes using viral vectors to an animal subject which result in expression of the transgene in cardiac tissue and alleviation of cardiac dysfunction (Example 1) and Stanczyk teaches binding between RyR2 and MYBPC3 in human cardiac tissue (page 2, left column, para 3), human embryonic kidney cells (Figure 2) and porcine cardiac tissue (Figure 3) as well as inhibitory effect of MYBPC3 on RYR2 spontaneous activity in human embryonic kidney cells (Figure 5F). Thus, an ordinary artisan would reasonably except that using Priori’s viral vector and administration method to deliver c-MYBPC3 fragments would result in expression of c-MYBPC3 fragment in cardiac tissue wherein the fragments would be expected to bind RYR2 and modulate its function, as taught by Stanczyk. An ordinary artisan would reasonably expect to generate viral vectors encoding MYBPC3 or its C-terminal fragments as taught by Stanczyk using standard PCR techniques such as used by Stanczyk (Materials and Methods: Plasmid constructs) and sequences taught by NP_000247.2 (human) and NP_032679.2 (mouse).
Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the effective time of filing of the invention, especially in the absence of evidence to the contrary.
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Response to Arguments
Applicant's arguments filed 8/26/2025 with regards to the U.S.C. 112(d) rejection of claims 50, 51, 53-56 have been fully considered but they are not persuasive.
Applicants argue that “the specification states that "aberrant RYR2 activity that is the root cause of arrhythmias in CPVT," and "dysfunction of RYR2 is a final common pathway underlying diverse cardiac arrhythmias". Application as filed, page 9, lines 6-10. Therefore, arrhythmias were known to be associated with RYR2 mutations at the time of filing, and claims 50, 51, and 53-56 do not broaden the scope of claim 2.” (page 8, para 4).
In response, the issue is not if any “arrhythmias were known to be associated with RYR2 mutations at the time of filing” as argued but if acquired arrhythmias were known to be associated with RYR2 mutations. The statements from the specification referenced in the argument do not support that acquired arrhythmias are “cardiac disorders associated with one or more RYR2 gene mutations” as claimed. The only RYR2 mutations disclosed in the specification are each related to CPVT, an inherited cardiac disorder. See any of the references – Jiang, Liu or Postma - on page 62, para 2 that each teach only CPVT-associated RYR2 mutations. Indeed, RYR2 dysfunction i.e. improper functioning of RYR2 protein are known in most arrhythmias (see teachings from Kistamas in 112a written description rejection). The statement “dysfunction of RYR2 is a final common pathway underlying diverse cardiac arrhythmias" from the specification merely states the same. However, protein dysfunction does not inherently mean mutations in the gene for that protein and thus there is no support that RYR2 dysfunction related to acquired arrhythmias is due to mutations in RYR2 gene. Claims 50, 51, 53-56 broaden claim 2 by expanding the cardiac disorders of claim 2 to cardiac disorders not limited to RYR2 gene mutations.
Applicant's arguments filed 8/26/2025 with regards to the U.S.C. 112(a)-Written Description rejection of claims 50, 51, 53-56 have been fully considered but they are not persuasive.
Applicant argue that “The instant application discloses that "[m]any forms of heart disease and heart arrhythmia are caused directly or indirectly by improper regulation of Ca2+ release in heart muscle cells", "[a] key regulator of Ca2+ release is RYR2", and "[o]ther forms of arrhythmia, such as atrial fibrillation, involve abnormal regulation of CA2+ release from RYR2. Abnormal Ca2+ release from RYR2 can also contribute to contractile dysfunction in inherited and acquired forms of heart failure." Application, background. Kistamas confirms that indeed "intracellular Ca2+ handling maladies in the most prevalent inherited and acquired arrhythmia syndromes, caused by channelopathies and defects in Ca2+ handling genes. Ca2+ handling defects also have an arrhythmogenic role in diseases, such as heart failure and cardiomyopathies." Therefore, the instant application demonstrates that the inventor had possession of the claimed invention.” (page 9, para 1)
In response, herein again similar to the argument above for the 112d rejection, the issue is not if the role of Ca2+ dysregulation was known in development of arrythmia or if the role of RYR2-dysfunction-induced-Ca2+ dysregulation was known in the development of arrythmia, but if acquired arrhythmias were known to be associated with RYR2 gene mutations. The applicant has not provided sufficient disclosure such that an ordinary artisan could envision the RYR2 gene mutation-associated acquired arrythmias or heart failure embraced by the claims. Thus, an artisan cannot envision the cardiac disorders embraced by claims 50, 51 53-56. Applicant has not provided even a single RYR2 gene mutations that was associated with acquired forms of arrhythmias, including the once specifically recited in claims 53-55. Applicant has not provided even a single RYR2 gene mutations that was associated heart failure.
Applicant's arguments filed 8/26/2025 with regards to the U.S.C. 112(a)-Scope of Enablement rejection of claims 50, 51 and with regards to the U.S.C. 112(a)-Enablement rejection of claims 53-56 have been fully considered but they are not persuasive.
Applicant separately present the same argument for both the rejections, which is “The instant claims are enabled because heart arrhythmias are caused directly or indirectly by improper regulation of Ca2+ release. Example 2 shows that peptide fragments C6-C8 and C6-C10 were the most effective at decreasing VT (FIGs. 5B-5C) and did not impair heart contraction (FIGs. 5A-5C). The C6-C10 was also shown to reduce CT using EKG (FIG. 5C) and decrease abnormal calcium signaling (FIGs. 5D-5E). Accordingly, the application shows that the peptide fragments decrease abnormal calcium signaling in vivo.” (page 9, para 5 and page 10, para 2).
In response, indeed Ca2+ dysregulation is a key contributing factor in arrythmias and heart failure. Ca2+ concentration across the plasma membrane and the sarcoplasmic reticular membrane in cardiomyocytes is determined by numerous ion channels, each of which are regulated by various extracellular and intracellular signaling molecules (see Figure 1 in Marx). However, even if increased RYR2 function is common to several arrhythmias, this does not indicate that the increased function of RYR2 in each of these arrythmias resulted due to the same cause such that the same treatment would be applicable across each form of arrythmia.
The examples provided are limited to Ca2+ dysregulation produced by increased RYR2 function due to mutations in RYR2 gene. These mutations directly alter the sensitivity of RYR2 protein to Ca2+ resulting in its increased function (see Kistmas, page 11, col. 1, para 2). The examples show that the aberrant Ca2+ flux produced by increased RYR2 function due to mutations in RYR2 gene can be reduced by treatment with MYBPC3 or its C-terminal fragments which bind RYR2 protein, as noted by the Applicant in the argument. This was known in the art, as taught by Stanczyk. However, these data do not support a method wherein treatment with MYBPC3 or its C-terminal fragments would reduce the increased RYR2 function produced by other means. RYR2 is a SER ion channel that responds to Ca2+ gradient across the SER membrane and its function can be modulated by directly altering its open and/or closed probability or indirectly by changing the upstream signaling molecules that result in opening or closing of the channel such as catecholamines, PKA or CaMKII. See at least teachings in Marx about RYR2 function in section: The role of ryanodine receptors in the heart and also section: Ryanodine receptors: An important target of PKA and CaMKII. Neither the prior art nor the instant specification provide sufficient guidance regarding if MYBPC-3 would reduce an increase in RYR2 function due to, for example, increased catecholaminergic drive, such as seen in heart failure, or the other diverse causal factors that result in acquired arrhythmias (see teachings from Kistamas on page 15, right column, para 3; page 16, left column, para 2).
Furthermore, although the treatment disclosed could prevent inherited arrhythmia, there is no predictability that this treatment could prevent acquired arrythmias.
Critically, the specific applicability of the disclosed method to treating and/or preventing heart failure remains unpredictable. Although Ca2+ dysregulation is known in heart failure but targeting Ca2+-regulated-contractility mechanisms are shown to be not efficacious. See at least Hertualla’s teachings regarding complexity of heart failure in section: Heart Failure and Arrhythmias, and especially the failed CUPID 2 clinical trial discussed therein. See also Marx’s teachings complexity of heart failure in section: Role of ryanodine receptors in heart failure.
Taken together, the examples provided only enable a method for treating and preventing inherited arrhythmia associated with RYR2 gene mutations but not a method for treating and preventing acquired arrhythmias or heart failure.
Applicant’s arguments filed 8/26/2025 with respect to the U.S.C. 103 rejection claim(s) 2, 19, 48-52 have been considered but are moot because the new ground of rejection necessitated by claim amendments. Arguments pertinent to instant rejection are addressed below.
Applicant argue that Priori and Stanczyk do not teach the sequences now recited in the amended claim 2 (page 11, para 3, 4). Regarding Stanczyk, applicant further argue that Stanczyk does not suggest an amino acid sequence of SEQ ID NOs: 3, 5, 11, 13 as claimed (page 11, para 4) and “Stanczyk does not test the effect of sub fragments of the full length cMyBP-C on Ca2+ signaling. Additionally, Stanczyk identified the interaction between RYR2 and MYBPC3 in an artificial, non-cardiomyocyte system. Specifically, this system lacks myosin, which naturally binds MYBPC3 and would be expected to cause MYBPC3 to localize away from RYR2. Therefore, based on Stanczyk's studies and the subcellular location of RYR2 and MYBPC3 in vivo, a person of ordinary skill in the art would not expect binding of RYR2 and MYBPC3 to occur in cardiomyocytes and would not expect MYBPC3 C- terminus fragments to affect RYR2 spontaneous Ca2+ oscillations, nor that MYBPC3 fragments would have a functional effect on cardiac disorders” (page 11, para 4).
In response, in the instant rejection the specifically recited SEQ IDs are taught by NP_000247.2 and NP_032679.2. Furthermore, Stanczyk does suggest the use of the specifically recited SEQ IDs because Stanczyk teaches that the c-terminal domains of MYBPC3 comprises domains C6-C10 (i.e. sequences claimed as SEQ ID NO: 5 and 13) and that the C6-C8 fragment (i.e. sequences claimed as SEQ ID NO: 3 and 11) has the strongest RYR2 binding. Indeed only the C6-C10 fragment was tested by Stanczyk in the experiment shown in Figure 5 but when combined with experiment shown in Figure 2, this strongly suggests that the C6-C8 fragment with the stronger RYR2 binding is expected to inhibit RYR2 to at least the same level as the C6-C10 fragment, if not higher. It is critical to note here that the claims are not limited to a vector encoding only the C-terminus or any specific domains of the C-terminus of MYBPC3. Since a full-length MYBPC3 protein comprises a C-terminus, including C6-C8 domains, the instant method embraces administering any portion of MYBPC3 protein as long as it comprises the full-length C-terminus (Claims 2, 45, 47) and/or at least the C6-C8 domains (claims 2, 44, 46).
Regarding ‘the identification of interaction between RYR2 and MYBPC3 is an artificial, non-cardiomyocyte system which lacks myosin’, this does not teach away from the evidence presented by Stanczyk that c-fragments of MYBPC3 are capable of binding and inhibiting RYR2 and the applicability of these teachings to therapeutic methods. An ordinary artisan recognizes the utility of evidence garnered from in vitro experiments. For example, Handhle et al (Journal of Cell Science (2016) 129, 3983-3988) showed that Casq2 binds and inhibits RyR2 spontaneous activity using the same systems as Stanczyk (Figures 1-3). Subsequently, Priori showed that Casq2 can be used to inhibit increased RyR2 activity in CPVT mouse model (Example 1).
Furthermore, Stanczyk’s study is not limited to only HEK cells. Stanczyk identified the interaction between RYR2 and MYBPC3 using a genome wide screen method wherein they used human RYR2 N-terminal as bait to identify partners in human cardiac cDNA which resulted in identification of MYBPC3 (Results, para 1). The result of this screening was confirmed using coIP assay in HEK cells (Figure 1) and in native pig cardiac tissue (Figure 3A, B, Supplementary figure S3). Therefore, contrary to argument, Stanczyk’s experiments are not limited to artificial, non-cardiomyocyte system since Stanczyk shows binding between RYR2 and MYBPC3 in human and pig cardiac tissue. Stanczyk also teaches the subcellular location of RYR2 and MYBPC3 in healthy and diseased cardiac tissue (Figure 6). In healthy tissue, phosphorylated MYBPC3 and RYR2 localize to different regions in the cardiomyocytes while under pathological conditions, MYBPC3 is known to be dephosphorylated and dissociate from its sarcomeric localization. Stanczyk findings regarding interaction between RYR2 and MYBPC3 thus provides physiological relevance of previously reported findings of MYBPC3 dissociation from the sarcomere under pathological conditions. Thus, a person of ordinary skill in the art would expect binding between RYR2 and the MYBPC3 dissociated from sarcomere under pathological conditions to occur in diseased cardiomyocytes.
Applicant’s arguments filed 8/26/2025 with respect to the U.S.C. 103 rejection claim(s) 44-47 have been considered but are moot because the new ground of rejection necessitated by claim amendments. Arguments pertinent to instant rejection are addressed below.
Regarding Priori, Applicant argue that “Priori does not provide any suggestions for treating CPVT using MYBPC3, let alone an amino acid sequence of any one of SEQ ID NOs: 3, 5, 11, or 13, as recited in claim 2 as amended” (page 12, last para).
In response to applicant's arguments against the references individually, 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). Priori teaches that CPVT caused by RYR2 mutation can be treated by expressing another gene i.e. CASQ2 (“Surprisingly, CASQ2 gene transfer alone, without the need for RYR2 delivery, was found to prevent the physiological sinus rhythm that triggers arrhythmias due to adrenergic activation. CASQ2 gene therapy in murine dominant CPVT models resulted in augmented CASQ2 expression in cardiac myocytes and restored anti-arrhythmic cardiac contractile function” [0153]). Priori teaches a method that allows for expression of transgene in cardiac tissue to treat CPVT. In the instant rejection, MYBPC3 and its interaction as well as inhibitory effect on RYR2 function is taught by Stanczyk while the specifically recited SEQ IDs are taught by NP_000247.2 and NP_032679.2.
Regarding Stanczyk, Applicant argue “Stanczyk states that, "[d]omain C6, which appears to be dispensable since cMyBP-CNT exhibited minimal RyR2NT binding, has lower sequence identity with C7 and C9 (22% and 24%, respectively)." Stanczyk, page 2. Further, Stanczyk does not show that the C6-C8 in Fig. 2A has any effect on calcium. Stanczyk does not disclose or suggest an amino acid sequence of any one of SEQ ID NOs: 3, 5, 11, or 13. Nor would there be a reasonable expectation of success that an amino acid sequence of any one of SEQ ID NOs: 3, 5, 11, or 13 in a method of treating a cardiac disorder associated with one or more mutations in RYR2 gene because Stanczyk does not test the effect of sub fragments of the full length cMyBP-C on Ca2+ signaling. Therefore, based on Stanczyk's studies one of ordinary skill in the art would not expect that MYBPC3 fragments would have a functional effect on cardiac disorders” (page 13, para 1).
In response, the relevance of the text quoted from page 2 of Stanczyk is not established. Stanczyk uses the C6-C10 fragment to show RYR2 inhibition regardless of the apparent ‘dispensability’ noted in the text. Regarding the C6-C8 fragment, the claim is not limited to vectors encoding only the C6-C8 fragment. Critically, Stanczyk shows that it has the strongest RYR2 binding. Indeed only the C6-C10 fragment was tested by Stanczyk in the experiment shown in Figure 5 but when combined with experiment shown in Figure 2, this strongly suggests that the C6-C8 fragment with the stronger RYR2 binding is expected to inhibit RYR2 to at least the same level as the C6-C10 fragment, if not higher. Testing the effect of each sub-fragment is not required to provide reasonable expectation of success. According to MPEP 2143.02, “Where there is a reason to modify or combine the prior art to achieve the claimed invention, the claims may be rejected as prima facie obvious provided there is also a reasonable expectation of success. In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986)” and “Conclusive proof of efficacy is not required to show a reasonable expectation of success. OSI Pharm., LLC v. Apotex Inc., 939 F.3d 1375, 1385, 2019 USPQ2d 379681 (Fed. Cir. 2019).
In the instant case, an ordinary artisan would reasonably expect that Priori’s vector and method when modified to express c-MyBP-C, as taught by Stanczyk, NP_000247.2 and NP_032679.2, would deliver c-MyBP-C to inhibit increased RYR-2 activity, as taught by Stanczyk.
Conclusion
No claim is allowed.
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