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 .
FINAL ACTION
Amendment Entry
1. Applicant’s response to the Non-Final Action dated 3/27/25 is acknowledged (replies filed 5/6/25, 6/26/25, and 8/29/25). In the amendment filed therein claims 1, 4, 9, 10, 12, and 13 were modified. Claims 7 and 14-31 were canceled without prejudice or disclaimer. Currently, claims 1-6 and 8-13 are pending and under consideration.
2. Rejections and/or objections of record not reiterated herein have been withdrawn.
Priority
3. The instant application has a priority date of March 8, 2019. The application is a continuation of International Patent Application No. PCT/US2020/021317, filed March 6, 2020, which claims priority to U.S. Provisional Patent Application Serial No. 62/815,863, filed March 8, 2019.
Information Disclosure Statement
4. The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609 A(1) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the Examiner on form PTO-892 or Applicant on PTO-1449 cited the references they have not been considered.
5. The Information disclosure Statements (IDS) filed on 5/6/25 and 8/29/25 have been considered as to the merits before the Final Action.
NEW GROUNDS OF REJECTIONS NECESSITATED BY AMENDMENTS
Claim Rejections - 35 USC § 103
6. 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.
7. Claims 1, 2, 3, 4, 7, and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wiklander et al. (Frontiers in Immunology, June 2018, Vol.9, Article 1326, pages 1-26) in view of Hiraki et al. (JP 2017120263, published 2017-07-06, IDS filed 5/6/25).
Wilklander et al. disclose that Extracellular vesicles (EVs) can be harvested from cell culture supernatants and from all body fluids. The researchers found that a multiplex bead-based assay was suitable to detect, quantify, and compare EV surface signatures in various sample types, including unprocessed cell culture supernatants, cell culture-derived EVs isolated by different methods, and biological fluids. Furthermore, the use and limitations of the assay to assess heterogeneities in EV surface signatures was explored by combining different sets of detection antibodies in EV samples derived from different cell lines and subsets of rare cells.
Taken together, this validated multiplex bead based flow cytometric assay allowed for robust, sensitive, and reproducible detection of EV surface marker expression in various sample types in a semi-quantitative way and will be highly valuable for many researchers in the EV field in different experimental contexts. See abstract. In figure 1, samples were diluted with MACSPlex buffer (MPB) to, or used undiluted at, a final volume of 120 uL and loaded onto wells of a pre-wet and drained MACSPlex 96-well 0.22 um filter plate before 15 uL of MACSPlex Exosome Capture Beads (containing 39 different antibody-coated bead subsets) were added to each well. In one embodiment the capture antibody includes CD20; see figure 1 c wherein CD3 and CD20 were assessed. Reading on Claim 1 step a
For counterstaining of EVs bound by capture beads with detection antibodies, 135 uL of MPB and 5 uL of each APC-conjugated anti-CD9, anti-CD63, and anti-CD81 detection antibody were added to each well and plates were incubated on an orbital shaker at 450 rom protected from light for 1h at room temperature. Reading on Claim 1 step b. The assay included calibrator — controls wherein the device was analyzed with a medium control containing no EVs and a HEK298T condition medium. See figure 1 panel B and figure 3. Four bead populations, i.e., CD9, CD63, CD81, and CD29, were detected as strongly positive in HEK293T CM, which was confirmed via backgating (Figures 1B,C). Other markers detected at intermediate- to low-positive APC fluorescence intensity (signal) levels comprised mainly CD24, CD41b, CD49e, CD146, and MCSP. Markers such as CD3, CD105, or CD326 were detected at very low levels after background correction (Figure iC).
Wiklander et al. differ from the instant invention in not specifically teaching a comparison of a positive control wherein a signal from the capture antibodies or detection antibodies are measured.
However, Hiraki et al. teach procedures [0001] for predicting and determining the presence or absence of drug sensitivity or the presence or absence of drug resistance by using a protein marker expressed in tumor-derived microvesicles.
[0038]In one example of the invention, "capture antibodies", i.e., anti-protein antibodies, bound to beads, i.e., solid-phase carriers, are brought into contact with a sample containing microvesicles that are positive for CD20, and "labeled antibodies", i.e., antibodies capable of binding to one or more CD20 markers selected from CD20,CD59,CD81 and PD - L1, are also brought into contact, thereby forming sandwich-complexes consisting of capture antibody-microvesicles that are positive for CD20 - labeled antibodies. Subsequently, the labeled antibodies in the complexes are detected and quantified using a flow cytometer, whereby the expression levels of one or more markers selected from CD20 and PD - CD20,CD59,CD81 expressed in L1 + microvesicles can be quantified. The detection of the labeled (i.e. signal) antibody may be performed by detecting the labeled compound attached to the labeled antibody by a method suitable for the detection of the compound, or by labeling a secondary antibody capable of binding to the labeled antibody with the above-described labeled compound and detecting the labeled antibody using the secondary antibody. As the "secondary antibody", an antibody produced by another animal species against the immunoglobulin of the animal species that produced the labeled antibody can be used.
A comparison step is also taught to evaluate the measured parameter. [0039] (Determination Criteria) By comparing the value of the expression level of the protein-marker in the CD20 + microvesicles quantitatively analyzed by the above-described method with the "reference value", it is possible to predict and determine the presence or absence of the susceptibility or the presence or absence of the resistance of patients to the anti- CD20 antibody-based pharmaceutical product.
[0041]In one example of the invention, the "reference value" may be the expression level of a proteinaceous marker in cells known to be sensitive to an anti- CD20 antigen drug, or in cells derived from a human known to be sensitive to an anti- CD20 antigen drug, or in CD20 - positive microvesicles derived from a bodily fluid. The expression level can be a value obtained by using the same quantitative analysis method as that for the expression level of each marker in the patient-derived CD20 + microvesicles to be tested. The reference value can also be an average value, a median value, or a cut-off value obtained by preparing an ROC curve.
[0045]Alternatively, in another example of the invention, the "reference value" may be the expression level of a proteinaceous marker in cells known not to be sensitive to an anti- CD20 antigen drug, or in cells derived from a human known not to be sensitive to an anti- CD20 antigen drug, or in CD20 - positive microvesicles derived from a bodily fluid. The expression level can be a value obtained by using the same quantitative analysis method as that for the expression level of each marker in the patient-derived CD20 + microvesicles to be tested. The reference value can also be an average value, a median value, or a cut-off value obtained by preparing an ROC curve based on the expression level.
[0048] Alternatively, in another example of the invention, the "reference value" can be the expression level of a protein-marker in CD20 (HIV) - positive microvesicles derived from cells or body fluids derived from healthy individuals or patients as a control. The expression level can be a value obtained by using the same quantitative analysis method as that for the expression level of each marker in the patient-derived CD20 + microvesicles to be tested. The reference value can also be an average value, a median value, or a cut-off value obtained by preparing an ROC curve based on the expression level. Alternatively, the reference value can be a value corresponding to the 10th percentile or the 5th percentile, or a value corresponding to the 90th percentile or the 95th percentile in the distribution of the measured value of the expression level of each protein marker.
The method taught by Hiraki et al. [0007] provide a novel method capable of predicting and determining whether or not patients are sensitive or resistant to anti-LA antibodies such as CD20, and capable of selecting patients sensitive or resistant to the anti-LA antibodies.
Therefore it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to assess the signal obtained from the detectable bound complex(s) in extracellular vesicles taught by Wilklander et al. and compare the evaluated signal against a positive control as exemplified by Hiraki et al. because Hiraki et al. taught that this positive control reference allowed for predicting and determining whether or not patients are sensitive or resistant to anti-LA antibodies such as CD20, and was capable of selecting patients sensitive or resistant to the anti-LA antibodies.
One skilled in the art would have been motivated to assess the method against a positive control reference as taught by Hiraki et al. in order to determine drug efficacy in tumor treatments.
8. Claims 5 and 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wiklander et al. (Frontiers in Immunology, June 2018, Vol.9, Article 1326, pages 1-26) in view of Hiraki et al. (JP 2017120263, published 2017-07-06, IDS filed 5/6/25) and further in view of Sorensen et al. (Therapeutics Advances in Neurological Disorders, Vol. 9, Issue 1, 1/2016, pages 44-52).
Please see Wiklander et al. in view of Hiraki et al. as set forth above.
Wiklander et al. in view of Hiraki et al. differ from the instant invention in not specifically teaching capture antibodies or detection antibodies selected from the group consisting of rituximab, ocrelizumab, ofatumumab, obinutuzumab, and combinations thereof.
However, Sorensen et al. demonstrate that CD20 antibodies such as rituximab, ocrelizumab, and ofatumumab are known in the prior art. These reagents are commonly used to bind CD20 and tested for efficacy in disease treatments (i.e. antibody therapy). See abstract, table 1, and conclusion.
Absent evidence to the contrary the use of known CD20 antibody binding reagents is deemed an obvious design choice previously taught by the prior art.
The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945); In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960); Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 8 USPQ2d 1323 (Fed. Cir. 1988).
Therefore it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to select either rituximab, ocrelizumab, and ofatumumab as an antibody to bind CD20 in the assay of Wiklander et al. as a routine design choice/binding reagent taught the prior art.
9. Claims 9-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wiklander et al. (Frontiers in Immunology, June 2018, Vol.9, Article 1326, pages 1-26) in view of Hiraki et al. (JP 2017120263, published 2017-07-06, IDS filed 5/6/25) and further in view of McVey et al. (Oncotarget, 2018 Vol.9, No.98, pages 37229-37251).
Please see Wiklander et al. in view of Hiraki et al. as set forth above.
Wiklander et al. in view of Hiraki et al. differ from the instant invention in not specifically teaching the measurement of circulating proteins.
However, McVey et al. teach that extracellular vesicles (EVs) are generated at increased rates from parenchymal and circulating blood cells during exposure of the circulation to abnormal flow conditions and foreign materials associated with extracorporeal circuits (ExCors). See abstract.
The extracellular release of intracellular mutivesicular bodies express a more concentrated endowment of heat shock proteins, tetraspanins such as CD63 or CD9 and have considerable acetyl-cholinesterase activity. Page 37232. Therefore EVs are rapidly emerging candidates to address the gap of reliable biomarkers for monitoring ExCor/ECLS. page 37230-37231 and figure 2.
Most ExCor/ECLS systems (acute- or prolonged support) lead to transient or permanently increased levels of circulating EVs. This had fueled the idea that they may be exploited as biomarkers for prognosis or indicators of potential ExCor/ECLS-related adverse effects; but recently also generated interest in the role of EVs as propagators of disease processes and mechanisms. page 37245 – Conclusion.
Therefore it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to measure circulating EV proteins as taught by McVey et al. in the EV detection procedures of Wiklander et al. in view of Hiraki et al. because McVey et al. disclosed that “most ExCor/ECLS systems (acute- or prolonged support) lead to transient or permanently increased levels of circulating EVs.
This had fueled the idea that they may be exploited as biomarkers for prognosis or indicators of potential ExCor/ECLS-related adverse effects; but recently also generated interest in the role of EVs as propagators of disease processes and mechanisms”. page 37245 – Conclusion.
One skilled in the art would have been motivated to measure circulating EV biomarkers as a means to monitor and possible treat adverse effects in ExCor/ECLS.
Response to Arguments
10. Applicant's arguments filed 6/26/25 have been fully considered but they are not persuasive. Applicant contends that the cited reference to Wiklander et al. does not teach that “the signal from the detectable bound complex is calibrated against one or more known values detected from extracellular vesicle comprising the protein” as recited in Claim 1 or “comparing the level of the target protein in the extracellular vesicles in the sample with a calibration curve generated using extracellular vesicles comprising the target protein” as recited in claim 9. Instead of calibrating against extracellular vesicles comprising the protein of interest, the passage of Wiklander cited by the Office expressly describes a negative control that allows for background correction.
In order to address this argument it is noted that in response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., positive control evaluations are not expressly recited in the claims) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Additionally, the reference to Hiraki et al. has been added to the rejections to teach positive control signal measurements against a refence value or known calibrators to allow for drug therapy analysis. The reference of Hiraki et al. is deemed to make the claimed invention obvious.
11. For reasons aforementioned, no claims are allowed.
12. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
12. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Lisa Cook whose telephone number is 571-272-0816. The examiner works a flexible schedule but can normally be reached on Monday-Friday from 9am to 5pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Samira Jean-Louis, can be reached at telephone number 571-270-3505. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Lisa V. Cook
Patent Examiner
Art Unit 1642
Remsen
571-272-0816
10/4/25
/LISA V COOK/Primary Examiner, Art Unit 1642