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 .
Claims 1, 3-8, 10-24, 26-28, and 36-38, of record 8/21/2025, are pending and subject to prosecution. Claims 1, 5-6, 8, 10-12, 16, and 27-28 are amended. Claims 2, 9, 25, and 29-35 are cancelled Claims 36-38 are newly added.
Status of Prior Rejections/Response to Arguments
RE: Objection to claims 8, 11-12, 16, and 34:
The cancellation of claim 34 renders the objection thereto moot.
The amendment to claims 8, 11-12, and 16 are effective to obviate the objection. The objection is withdrawn.
RE: Rejection of claims 16-25, 27, and 34 under 35 U.S.C. 112(b):
The cancellation of claims 25 and 34 renders the rejection thereto moot.
The amendment to claim 16 is effective to obviate the rejection. The rejection is withdrawn.
RE: Rejection of claims 6, 8-10, and 14 under 35 U.S.C. 102(a)(1) over Clarke et al. (Blood, 2018), evidenced by De Rosa et al. (Cytometry Part A, 2012):
RE: Rejection of claims 6-8 and 10-15 under 35 U.S.C. 102(a)(1) over Magalhaes et al. (Journal of Immunotherapy, 2018):
The cancellation of claim 9 renders the rejection thereto moot.
The amendment of claim 6 to depend from claim 1 is effective to obviate the rejections. The rejections are withdrawn.
RE: Rejection of claims 29-35 under 35 U.S.C. 102(a)(1) and 102(a)(2) over Van Dongen et al. (US 20120165213 A1):
The cancellation of claims 29-35 renders the rejection thereto moot.
RE: Rejection of claims 1-5, 26, and 28 under 35 U.S.C. 103 over Gschweng et al. (WO 2019161271 A1) in view of Kaufmann (Proceedings of the National Academy of Sciences, 1996):
RE: Rejection of claims 1-5, 16-19, and 21-28 under 35 U.S.C. 103 over Gschweng et al. (WO 2019161271 A1) in view of Kaufmann (Proceedings of the National Academy of Sciences, 1996), further in view of Magalhaes et al. (Journal of Immunotherapy, 2018):
RE: Rejection of claims 1-5 and 16-28 under 35 U.S.C. 103 over Gschweng et al. (WO 2019161271 A1) in view of Kaufmann (Proceedings of the National Academy of Sciences, 1996), further in view of Magalhaes et al. (Journal of Immunotherapy, 2018), further in view of Fraietta et al. (Nature Medicine, 2018):
The cancellation of claims 2 and 25 renders the rejections thereto moot.
The applicant asserts that Gschweng et al. do not teach analysis of TCRαβ expression in T cells with a disrupted TCRα or TCRβ gene and that the invention as a whole is not obvious (Applicant Remarks, page 9). The applicant asserts unexpected results in the inability of a TCRαβ or CD3 antibody to measure the percentage of TCRαβ+ or CD3+ cells, respectively, in a population that has undergone TCR disruption (Applicant Remarks, page 10). The applicant asserts invention of the use of surface CD5 as a surrogate for surface CD3, which remains intracellularly retained in TCR-disrupted cells (Applicant Remarks, page 10-11).
The applicant’s arguments have been fully considered but are not found persuasive. The unexpected results shown in table 4 of the instant specification appear to have been achieved using only a single antibody against TCRαβ and a single antibody against TCRγδ, according to table 1. Given the plethora of antibodies available to target the individual epitopes on the α and β chains, not to mention pan-αβ antibodies, the amount of testing performed appears to be insufficient for a conclusion that the use of a TCRαβ antibody for measuring the number of TCRαβ+ cells in a population is “very inaccurate”.
Regarding the expression of CD3 and CD5 in TCR-disrupted CAR-T cells, Chang et al. teach anti-CD19 CAR-T cells wherein the TCR has been knocked out via insertion of the CAR transgene into the TRAC locus (See page 1, ¶1). Chang et al. report high (>95%) expression of T lymphocyte markers including intracellular CD3, as well as at least a five-fold increase in CD5 expression (See page 2, full ¶1). The teachings of Chang et al., which pre-date the instant application, suggest that a relationship between intracellular CD3 and surface CD5 in TCR-disrupted T cells was already apparent.`
However, in view of the amendments which alter the scope of the instant claims, the rejections are withdrawn in favor of new rejections.
New Rejections
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.
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.
Claims 1, 3-5, 16,22-24, 26, 28, and 36-38 are rejected under 35 U.S.C. 103 as being unpatentable over Graham et al. (Blood, 2019) in view of Mfarrej et al. (Cytotherapy, 2021), Chang et al. (Blood, 3019), and Themali et al. (Nature Biotechnology, 2013).
Regarding claims 1, 3-5, 16, 22-24, 26, 28: Graham et al. teach the production of allogeneic anti-CD19 CD8+ and CD4+ CAR-T cells (See page 1, ¶1). The cells were obtained from healthy or patient donors and edited using TALEN to mediate CD52 and TRAC gene knockout (which reads on “engineered to introduce one or more genetic modifications at the TCRα… locus to reduce or impair TCRαβ surface expression”) (See page 1, ¶1-2). Residual TCRαβ+ cells were removed by magnetic bead selection (See page 2, ¶1). CAR expression levels were measured by flow cytometry (See page 2, ¶1). Graham et al. do not teach staining for CD45 and CD5 or determining the amount of TCRαβ+ cells by measuring the amount of TCRγδ+ cells.
Mfarrej et al. teach flow cytometry-based methods for quantifying lymphocyte subsets in blood-derived cellular products (See Abstract). Mfarrej et al. teach a gating strategy wherein viable lymphocytes are sorted on the basis of CD45 expression, then the CD45+ cells are sorted on the basis of CD3 expression (See fig. 1).
Chang et al. teach a TCR-disrupted CAR-T cell (See page 1, ¶1). Targeted integration of an anti-CD19 CAR transgene into the TRAC locus eliminated TCR expression (See page 1, ¶1-2). Chang et al. teach that the CAR-T cells expressed greater than 95% of lymphocyte markers such as intracellular CD3, and expression of markers including CD5 (which reads on “cell-surface CD5”) increased by approximately 5- to 20-fold (See page 2, full ¶1).
Themali et al. teach the isolation of TCRαβ+ T cells from peripheral blood lymphocytes (See Methods, Isolation and retroviral transduction of γδ and αβ- T cells). The TCRαβ+ fraction was obtained via negative immunomagnetic selection with a TCRγδ+ T cell isolation kit (which reads on “Measuring or determining a percentage or amount of… TCRγδ- cells… wherein the percentage or amount of… TCRγδ- cells indicates a percentage or amount of TCRαβ+ T cells present in the population of immune cells” and “subtracting the percentage or amount of… TCRγδ+ cells”) (See Methods, Isolation and retroviral transduction of γδ and αβ- T cells).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the method of Graham et al. to comprise sorting of the CAR-T cells by CD45 and CD3 expression, such as is taught by Mfarrej et al. One would be motivated to make this modification because Mfarrej et al. teach that these initial steps form part of a strategy that enables accurate quantification of viable lymphocyte products (See Abstract and fig. 1). There would be a reasonable expectation of success in doing so because the CAR-T cells of Graham et al. could be readily assessed by flow cytometry.
It would have been obvious to one of ordinary skill in the art to modify the method of Graham et al. to comprise integration of the anti-CD19 CAR gene at the TRAC locus, as taught by Chang et al., which enables enhanced efficacy and temporally-regulated CAR expression (See page 1, ¶1) and would obviate the need for a separate editing step at the TRAC locus. It also would have been obvious to include gating for CD5 because Chang et al. teach that its expression was increased by at least five-fold in the edited cells (See page 2, full ¶2), which suggests that it could serve as an additional marker for the CAR-T cells. Both modifications could be readily performed.
It would further have been obvious to modify the method of Graham et al. to substitute negative selection on the basis of TCRγδ expression, as taught by Themali et al. as an equivalent means for analyzing TCRαβ+ cell numbers (See Methods, Isolation and retroviral transduction of γδ and αβ- T cells). Substitution of one known element for another known element is considered to be prima facie obvious, absent a showing that the substitution yields more than predictable results. See MPEP 2143(I)(B).
Claims 1, 3-8, 10-19, 21-24, 26-28, and 36-38 are rejected under 35 U.S.C. 103 as being unpatentable over Graham et al. (Blood, 2019) in view of Mfarrej et al. (Cytotherapy, 2021), Chang et al. (Blood, 3019), and Themali et al. (Nature Biotechnology, 2013), further in view of Magalhaes et al. (Journal of Immunotherapy, 2018), of record.
The teachings of Graham et al., Mfarrej et al., Chang et al., and Themali et al. are set forth in the rejection above and are incorporated herein in their entirety.
Regarding claims 6-8, 10-15, 17-19, and 21: Following the discussion of claims 1, 3-5, 16, 22-24, 26, 28, and 36-38, Graham et al., modified by Mfarrej et al., Chang et al., and Themali et al., render obvious a method of analyzing an anti-CD19 CAR-T cell population for TCRαβ expression using negative selection for TCRγδ+ cells but do not teach measuring CD107 expression after antigen stimulation.
Magalhaes et al. teach a degranulation assay wherein anti-CD19 CAR-T cells were co-cultured with CD19+ L562 CML or CLL B cells (which read on “tumor cells”) for 6 h in the presence of an anti-CD107a antibody as an indication of polyfunctionality (which reads on “wherein an increased level of surface CD107 as compared to a level before antigen stimulation indicates polyfunctional CAR T cells”) (See page 74, col. 2, full ¶2 and page 78, col. 1, ¶1). Expression of CD107a, IL-2, IL-17, IFNγ, and TNF (which reads on “TNFα”) was analyzed by flow cytometry (which reads on “an increased mean/medium fluorescence intensities of surface CD107”) (See page 74, col. 2, full ¶1-2).
It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to modify the method of Graham et al., modified by Mfarrej et al., Chang et al., and Themali et al., to comprise measurement of CD107a, as taught by Magalhaes et al., for profiling cell functionality. One would be motivated to make this modification because Magalhaes et al. teach that CD107a expression is indicative of cytotoxic capacity (See page 81, col. 1, full ¶1 and col. 2, full ¶1). There would be a reasonable expectation of success in making this modification because such an assay could be readily performed with the cells of Graham et al., modified by Mfarrej et al., Chang et al., and Themali et al.
Regarding claim 27: Following the discussion of claims 1, 3-8, 10-19, 21-24, 26, 28, and 36-38, Graham et al., modified by Mfarrej et al., Chang et al., Themali et al., and Magalhaes et al., do not expressly teach the filling of the CAR-T cells into containers. However, such a step would have been obvious and simple to perform after ensuring that no untransduced T cells (i.e., TCRαβ+) remained because Graham et al. teach that the cells were intended as an off-the-shelf product for treatment of patients with B cell malignancies (See page 1, ¶1).
Claims 1, 3-8, 10-24, 26-28, and 36-38 are rejected under 35 U.S.C. 103 as being unpatentable over Graham et al. (Blood, 2019) in view of Mfarrej et al. (Cytotherapy, 2021), Chang et al. (Blood, 3019), and Themali et al. (Nature Biotechnology, 2013), further in view of Magalhaes et al. (Journal of Immunotherapy, 2018), of record, further in view of Fraietta et al. (Nature Medicine, 2018), of record.
The teachings of Graham et al., Mfarrej et al., Chang et al., Themali et al., and Magalhaes et al. are set forth in the rejections above and are incorporated herein in their entirety.
Regarding claim 20: Following the discussion of claims 1, 3-8, 10-19, 21-24, 26-28, and 36-38, Graham et al., modified by Mfarrej et al., Chang et al., Themali et al., and Magalhaes et al., render obvious a method of analyzing an anti-CD19 CAR-T cell population for TCRαβ expression using negative selection for TCRγδ+ cells. Graham teach flow cytometry for examining CAR expression levels but do not expressly teach selection of CAR-expressing cells with an anti-idiotypic antibody.
Fraietta et al. teach the measurement of anti-CD19 CAR expression on the surface of T cells via flow cytometry with an anti-idiotypic monoclonal antibody (See page 572, col. 2, ¶1).
It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to modify the method of Graham et al., modified by Mfarrej et al., Chang et al., Themali et al., and Magalhaes et al., to substitute the anti-CD19 CAR anti-idiotypic antibody taught by Fraietta et al. for the anti-CD19 CAR flow cytometry marker taught by Graham et al. Substitution of a known element with another known element is considered to be prima facie obvious, absent evidence that the result of the substitution yields more than predictable results. See MPEP 2143(I)(B).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/J.S.S./Examiner, Art Unit 1633
/CHRISTOPHER M BABIC/Supervisory Patent Examiner, Art Unit 1633