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 .
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 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.
DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 Apr. 29, 2026 has been entered. All arguments have been fully considered.
Status of the Claims
Claims 1-5, 8 and 9 are currently pending.
Claims 1 and 2 are amended.
Claims 3-5 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Inventions, there being no allowable generic or linking claim.
Claims 6 and 7 are cancelled.
New claims 8 and 9 have been added.
Claims 1, 2, 8 and 9 have been considered on the merits.
Specification Objections
Specification objections are withdrawn due to amendment.
Claim Rejections - 35 USC § 112 (b)
The claim rejections under 35 USC § 112, (b) or second paragraph (pre-AIA ), for the term “low expression” are withdrawn due to amendment. New claim rejections under 35 USC § 112, (b) or second paragraph (pre-AIA ) have been added to address the claim amendments.
Claim Rejections - 35 USC § 112 (b) and 35 USC § 101
The previous claim rejections under 35 USC § 112, (b) and 35 USC § 101, for the presence of “use” claims are withdrawn due to amendment. New claim rejections under 35 USC § 112, (b) and 35 USC § 101 have been added to address the claim amendments.
Claim Rejections - 35 USC § 112 (a) new matter
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 1, 2, 8 and 9 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 claims contain 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 pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites a step/a limitation of “wherein low expression means that mRNA expression level of aquaporin 2 detected by quantitative real-time PCR (qPCR)… is reduced by at least 50% in the head and neck squamous cell carcinoma tissue or cell compared with an adjacent normal oral epithelial cell, and the reduction has a statistical significance of P<0.05”. The specification describes BLANK (para. #). Fig. 1 of shows the relative expression of AQP2 in paracancer tissue samples and head and neck squamous cell carcinoma samples. There appears to be lower expression in the head and neck squamous cell carcinoma samples, but does not appear to be at least 50%. There is support for the limitation of “the protein expression level of aquaporin 2 detected by Western Blot is reduced by at least 50% in the head and neck squamous cell carcinoma tissue or cell compared with an adjacent normal oral epithelial cell, and the reduction has a statistical significance of P<0.05” in Fig. 5.
Claim 2 recites the limitations of:
“(b) delivering the recombinant lentiviral vector into head and neck squamous cell carcinoma tumor cells by in-tumor injection, wherein the lentivirus has a titer of not less than 1x 10^8 TU/mL;
(c) overexpressing aquaporin 2 in the tumor cells, such that the expression level of aquaporin 2 (SEQ ID NO: 2) in the tumor cells is increased by at least 100% compared with the endogenous expression level of aquaporin 2 in the tumor cells; and
(d) inhibiting proliferation and migration of the head and neck squamous cell carcinoma tumor cells and reducing the growth rate of the head and neck squamous cell carcinoma tumor by the overexpression of aquaporin 2.”
There appears to be no description in the specification or in the claims as originally filed for these steps. Embodiments or Examples 4-7 do not disclose this method. Embodiment 4 describes preparing the AQP2 overexpression vector of step (a). Embodiment 5 describes overexpression of AQP2 in head and neck squamous cell carcinoma cells by transfected with AQP2 expression vector and the these cells have a decrease proliferation compared to cells transfected with just the vector. Embodiment 6 describes that the AQP2 overexpressing head and neck squamous cell carcinoma cells in culture have decrease migration capabilities compared to those transfected with the empty vector. Embodiment 7 shows mice inoculated with the AQP2 overexpressing head and neck squamous cell carcinoma cells had lower tumor growth compared to mice inoculated with head and neck squamous cell carcinoma cells containing the empty vector. None of these embodiments or examples describe a method of treating head and neck squamous cell carcinoma tumor cells by actual delivering the recombinant lentiviral vector to a head and neck squamous cell carcinoma tumor by in-tumor injection where the lentivirus has a titer of 1x108 UT/ml, where there is overexpression of aquaporin 2 in the tumor cells or inhibiting the proliferation and migration of the head and neck squamous cell carcinoma tumor cells to treat head and neck squamous cell carcinoma. The embodiments show the effects of the overexpression of AQP2 in head and neck squamous cell carcinoma cells in culture where the cells were transfected with the vector containing AQP2 and the effects when these cells are inoculated in a mouse, but do not describe actually treating a head and neck squamous cell carcinoma tumor by injecting the recombinant lentiviral vector.
Claims 8 and 9 depend from claims 1 and 2, respectively, and, therefore, also contain the new matter.
This is a new matter rejection.
Claim Rejections - 35 USC § 112 (a)
The claim rejections under 35 USC § 112, (a) or first paragraph (pre-AIA ), for written description and scope of enablement are withdrawn due to amendment and to do to further consideration.
New claim rejections under 35 USC § 112, (a) or first paragraph (pre-AIA ) for scope of enablement have been added to address the claim amendments.
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.
Claim 2 and 9 are 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 inoculating nude mice with a head and neck squamous cell carcinoma cell line, SCC4 that was stably transfected with a vector to overexpress aquaporin 2 comprising the nucleotide sequence of SEQ ID NO. 1, does not reasonably provide enablement for:
the general treatment of existing head and neck squamous cell carcinoma tumors by (b) delivering a recombinant lentiviral vector containing the nucleotide sequence, SEQ ID NO. 1 into head and neck squamous cell carcinoma tumor cells by in-tumor injection, wherein the lentivirus has a titer of not less than 1x 10^8 TU/mL; (c) overexpressing aquaporin 2 in the tumor cells so that the expression level of aquaporin 2 (SEQ ID NO: 2) in the tumor cells is increased by at least 100% compared with the endogenous expression level of aquaporin 2 in the tumor cells; and (d) inhibiting proliferation and migration of the head and neck squamous cell carcinoma tumor cells and reducing the growth rate of the head and neck squamous cell carcinoma tumor by the overexpression of aquaporin 2”.
The factors to be considered in determining whether a disclosure meets the enablement requirements of 35 U.S.C. 112, first paragraph, have been described in In re Wands, 858 F.2d 731, 8 USPQ2d 1400 (Fed. Cir., 1988). The court in Wands states, “Enablement is not precluded by the necessity for some experimentation, such as routine screening. However, experimentation needed to practice the invention must not be undue experimentation. The key word is ‘undue’, not ‘experimentation’” (Wands, 8 USPQ2sd 1404). Clearly, the enablement of a claimed invention cannot be predicated on the basis of quantity of experimentation required to make or use the invention. “Whether undue experimentation is needed is not a single, simple factual determination, but rather is a conclusion reached by weighing many factual considerations” (Wands, 8 USPQ2d 1404). Among these factors are: (1) the nature of the invention; (2) the breadth of the claims; (3) the state of the prior art; (4) the predictability or unpredictability of the art; (5) the relative skill of those in the art; (6) the amount of direction or guidance presented; (7) the presence or absence of working examples; and (8) the quantity of experimentation necessary.
While all of these factors are considered, a sufficient amount for a prima facie case is discussed below.
(1) The nature of the invention and (2) the breadth of the claims:
The claim is drawn to a method of treating a head and neck squamous cell carcinoma tumor by constructing a recombinant lentiviral vector that is plvx-CMV-ZsGreen containing nucleotide sequence, SEQ ID NO. 1, delivering the recombinant lentiviral vector by injecting into the tumor at a titer of not less than 1 x108 TU/mL, and
overexpressing aquaporin 2 with the amino acid sequence of SEQ ID NO. 2, so that aquaporin is overexpressed in the tumor cells at least 100% greater than the endogenous expression and inhibits the proliferation and migration of the head and neck squamous cell carcinoma tumor.
(3) The state of the prior art and (4) the predictability or unpredictability of the art:
Inventions targeted for cancer treatment and gene therapy need to provide supporting evidence because of the unpredictability in biological responses to therapeutic treatments and the heterogeneity of tumors. The standard of enablement is high for such inventions because as the state of the art stands gene therapies as a cancer treatment are unpredictable.
For example, Abas et al. (Pathology-Research and Practice, 2024)(ref. of record) reports that the delivery system of the gene therapy to the target site is important to its success and usually requires a vector so that the gene can be reach its target site and be introduced into a cell (abstract and pg. 3 Col. 1 para. 4). Abas further reports that gene therapy due to its complex preparation, treatment and delivery faces challenges and safety risks including possible mutations, delivery of the gene to the wrong cells, and the immunogenic response of the host toward the gene (pg. 9 Col. 1-2 bridging para.). Abas states that there are still countless hurdles to be faced to produce safe and effective gene therapies (pg. 9 Col. 2 last para.). Further, it is noted that Abas only reviewed three different cancers because of the extensive range of cancer forms (pg. 2 first para.). Thus, as the state of the art stands, gene therapy for tumor treatment is highly unpredictable and depends on the tumor type.
(5) The relative skill of those in the art:
The relative skill of those in the art is high.
(6) The amount of direction or guidance presented and (7) the presence or absence of working examples:
The instant specification provides working examples and guidance for overexpressing aquaporin 2 (AQP2) in human tumor cells in culture by transfecting the cells with a vector encoding for AQP2 (Embodiments 5 and 6). The tumor cells tested included massively culture head and neck squamous cell carcinoma cells SCC4, kidney cancer cells 786-O and prostate cancer cells DU145. In addition, the specification discloses an experiment where nude mice were inoculated with human tumor cells that were either stably transfected with an empty vector or a vector to overexpress AQP2 and discloses that the tumors transfected to overexpress AQP2 had lower tumor growth rate compared to tumors transfected with the empty vector (Embodiment 7).
However, the specification does not provide any guidance for a method of treating a head and neck squamous cell carcinoma tumor by injecting a recombinant lentiviral vector that is plvx-CMV-ZsGreen containing nucleotide sequence, SEQ ID NO. 1 encoding aquaporin 2 with the amino acid sequence of SEQ ID NO. 2, so that aquaporin is overexpressed in the tumor cells at least 100% greater than the endogenous expression and inhibits the proliferation and migration of the head and neck squamous cell carcinoma tumor, in the tumor in any species by any means of administration or amounts. It does not describe injecting or mode of administration, the titer of the lentivirus delivered, or species which can be treated by the claimed method.
The applicants have provided insufficient data and no details for the gene therapy of head and neck squamous cell carcinoma tumors by overexpressing a nucleotide sequence comprising SEQ ID NO. 1, a nucleotide sequence encoding aquaporin 2 with the amino acid sequence of SEQ ID NO. 2 in the tumor. The applicants have not provided any evidence that any vectors, carriers and modes of administration would result in the overexpressing of a nucleotide encoding for AQP2 in vivo in all species of animals, to give the skilled artisan any reason to expect that the methods would be effective in treating tumors in vivo.
Claims drawn to pharmaceuticals and methods of treatment generally require supporting data because of the unpredictability in biological responses to therapeutic treatments. The efficacy of a drug treatment faces numerable unfavorable obstacles in vivo. As such, in vivo utility necessarily involves unpredictability with respect to physiological activity of an asserted process in humans. See discussion in Ex parte Kranz, 19 USPQ 2d 1216, 1218-1219 (6/90). For example, the delivery of a drug across necessary cell surfaces in amounts needed to be efficacious, but not lethal to the subject, necessitates sensitive testing in order to adequately determine the proper dosage.
(8) The quantity of experimentation necessary:
Considering the state of the art as discussed above and the high unpredictability and the lack of guidance provided in the specification, one of ordinary skill in the art would be burdened with undue experimentation to use the claimed invention within the broad scope as instantly claimed. Therefore, the claims are rejected under 35 U.S.C. 112, first paragraph, for a lack of enablement.
Claim Rejections - 35 USC § 103
The claim rejections under 35 USC § 103 are withdrawn due to amendment. New claim rejections under 35 USC § 103 have been added to address the claim amendments.
Claims 1 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Moon et al. (US 2005/0069872 A1) (ref. of record) as evidenced by Van Lieburg et al. (American Journal of Human Genetics, 1994) (ref. of record) and NCBI Blast alignment (SEQ ID NO. 2, accessed Jul. 19, 2025) (ref. of record) and in view of Van Lieburg et al. (American Journal of Human Genetics, 1994) (ref. of record) and Rodríguez et al. (PCR Primer Design, 2015).
With respect to claim 1, Moon teaches a method of analyzing the expression of and mutation of human aquaporin (AQP) genes to detect cancers or a method of using a transmembrane protein as a tumor marker (0001). With respect to claim 1, Moon teaches they tested human head and neck carcinoma cell lines for AQP expression and teaches that aquaporin 2 (AQP2) was not expressed in any of the cancer cell lines they tested (detecting expression of transmembrane protein AQP2 in the tumor) (0081 and 0115). With respect to claim 1, Moon teaches detecting no expression of AQP2 in human head and neck carcinoma cell lines by RT-PCR (0081 and 0115). Moon teaches the head and neck cancer cell lines tested include 183A, 22B, 17A and 11B from ATCC (0115). 17A and 22B are head and neck squamous cell carcinoma cell lines.
Although, Moon is silent with respect to the amino acid sequence of AQP2 and does not explicitly teach the sequence is SEQ ID NO. 2, this is the amino acid sequence of human AQP2 as evidenced by Van Lieburg. Van Lieburg discloses the human AQP2 amino acid sequence which shares 100% homology with SEQ ID NO. 2. NCBI Blast alignment shows 100% homology between the two sequences.
Even though Moon does not explicitly teach detecting expression of AQP2 in a human head and neck squamous carcinoma tumor as a tumor marker, Moon teaches the desire to identify novel molecular markers for cancer and tumors and analyzes the expression of AQPs in human head and neck squamous carcinoma cell lines (0005, 0023, and 0079). Moon teaches that AQP2 was not expressed in any of the cancer cell lines they tested (0081 and 0115). Accordingly, at the effective time of filing of the claimed invention, one of ordinary skill in the art would have been motivated to detect the expression of AQP2 in head and neck squamous cell carcinoma tumors for the benefit of detecting tumors, since Moon teaches the lack of AQP2 expression in head and neck squamous carcinoma cell lines and the desire for additional tumor markers to detect tumors. For these reasons one of ordinary skill in the art would have had a reasonable expectation of success in modifying the method of Moon to detect AQP2 expression in head and neck squamous cell carcinoma tumors.
Moon does not teach the method where the detection of the mRNA expression level of aquaporin 2 by qPCR uses a specific primer pair consisting of the nucleotide sequences set forth in SEQ ID NO: 3 and SEQ ID NO: 4 as recited in claim 8. However, Van Lieburg teaches the known nucleic acid sequence of AQP2. One of ordinary skill in the art would have been motivated to design the claimed primers to target this known sequence using standard, art-known techniques as taught by Rodriguez. Rodriguez teaches designing and guidelines for designing primers for quantitative real-time PCR (qPCR) analysis (see entire disclosure). Accordingly, at the effective time of filing of the claimed invention one of ordinary skill in the art would have been motivated to modify the method of Moon to design and use alternative pPCR primers to measure the level of RNA expression in the tumors. One of ordinary skill in the art would have had a reasonable expectation of success in making such a modification, since designing qPCR primers was routine in the art as disclosed by Rodriguez.
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.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Wan et al. (Cell Death Discovery, 2018) (ref. of record) in view of Moon et al. (US 2005/0069872 A1) (ref. of record) as evidenced by Van Lieburg et al. (American Journal of Human Genetics, 1994) (ref. of record) and NCBI Blast alignment (SEQ ID NO. 2, accessed Jul. 19, 2025) (ref. of record), in view of Dajani et al. (Oncotarget, 2018) (ref. of record), in view of Nagasaki et al. (JP 2009/079042 A, EPO translation, accessed 7/17/2025) (ref. of record) as evidenced by Van Lieburg et al. (American Journal of Human Genetics, 1994) (ref. of record), in view of Li et al. (Transfusion, 2014), and in view of Rossowska et al. (Frontiers in Immunology, 2017).
With respect to claim 2, Wan teaches a method of treating cancer cells by overexpressing the transmembrane protein, aquaporin (AQP2), in the cancer cells and reports that overexpression of AQP2 in glioma cell lines prevents basal glioma cell invasion (abstract, pg. 2 Col. 2 para. 2 and pg. 9 Col. 1 para. 2 and Col. 2 para. 2).
With respect to claim 2 step (a), Wan teaches constructing a recombinant lentiviral vector comprising the nucleotide sequence set forth in SEQ ID NO: 1, wherein the recombinant lentiviral vector is pSSLV-CMV-Zsgreen-puro (pg. 11 Col. 1 para. 4).
In addition, Wan teaches that AQP2 expression was decreased in glioma cells compared to glial cells from the same tissues (pg. 2 Col. 2 para. 1 and pg. 5 Col. 2 para. 3). Wan teaches that the overexpression of AQP2 was achieved by overexpressing a nucleic acid sequence of AQP2 in the glioma cells (pg. 11 Col. 2 para. 1). In addition, Wan teaches that targeting water channels for possible antitumor therapy (pg. 2 Col. 1 last para.).
Wan does not teach method where the cells are a head and neck squamous cell carcinoma tumor or explicitly teaches that the AQP2 nucleic acid sequence comprises SEQ ID NO. 1 and the amino acid sequence comprises SEQ ID NO: 2 as recited in claim 2 steps (a) and (c). Wan does not teach method including the overexpressing aquaporin 2 in the tumor cells, such that the expression level of aquaporin 2 (SEQ ID NO: 2) in the tumor cells is increased by at least 100% compared with the endogenous expression level of aquaporin 2 in the tumor cells as recited in claim 2 step (c).
However, Moon teaches a method of analyzing the expression of and mutation of human aquaporin (AQP) genes to detect cancers (0001). Moon teaches they tested human lung cancer, and human head and neck squamous carcinoma cell lines for AQP expression and teaches that aquaporin 2 (AQP2) was not expressed in any of the cancer cell lines they tested (0081 and 0115). Although, Moon is silent with respect to the amino acid sequence of AQP2 and does not explicitly teach the sequence is SEQ ID NO. 2, this is the amino acid sequence of human AQP2 as evidenced by Van Lieburg. Van Lieburg discloses the human AQP2 amino acid sequence which shares 100% homology with SEQ ID NO. 2. NCBI Blast alignment shows 100% homology between the two sequences.
In further support, Dajani suggests that manipulating the targeted expression of AQPs can be used for new chemotherapies (pg. 36401 para. 1).
Accordingly, at the effective time of filing of the claimed invention, one of ordinary skill in the art would have been motivated to modify the method of Wan to include overexpressing AQP2 in head and neck squamous cell carcinoma tumors by delivering a recombinant lentiviral vector containing the sequence of AQP2 (SEQ ID NO. 1) so that the AQP2 protein (SEQ ID NO. 2) is overexpressed by at least 100% compared with the endogenous expression level in the tumor as recited in steps (a) and (c) for the benefit of treating the tumor as taught by Wan and Dajani and for treating a tumor known not to express AQP2 and benefit from overexpression as taught by Moon. It would have been obvious to one of ordinary skill to motivated to modify the method of Wan to include the step of overexpressing AQP2 in head and neck squamous cell carcinoma tumors, since both Wan and Dajani suggest that cancers may be treated by manipulating the expression of aquaporins, and Moon teaches the lack of expression of AQP2 in head and neck squamous cell carcinomas. Furthermore, one of ordinary skill in the art would have a reasonable expectation of success in making such a modification to the method of Wan, since Wan teaches overexpression in glioma cancer prevents basal glioma cell invasion, Moon teaches there is a lack of expression of AQP2 in head and neck squamous cell carcinomas, and both Wan and Dajani suggest treating tumors by manipulating aquaporin expression. Additionally with respect to the 100% increase in AQP2 expression in tumor compared to the endogenous expression, one of ordinary skill in the art would recognize that the level of expression of the aquaporin in the tumor would be a result effective variable and would depend on the initial level of endogenous expression and the effectiveness and concentration of the recombinant lentiviral vector. Furthermore, Moon teaches that human lung cancer, and human head and neck squamous carcinoma cell lines for AQP expression and teaches that aquaporin 2 (AQP2) was not expressed in any of the cancer cell lines they tested (0081 and 0115). Therefore, any amount of exogenous expression could easily be predicted to be 100%.
Neither Wan and Moon explicitly teaches that the AQP2 nucleic acid sequence comprises SEQ ID NO. 1.
However, Nagasaki teaches treating renal diabetes insipidus with gene therapy to compensate for the loss of APQ2 function (0008). Nagasaki teaches injecting a vector encoding human AQP2 to overexpress AQP2 in the kidney (0010, 0030 and 0034). In further support, Dajani suggests that manipulating the targeted expression of AQPs can be used for new chemotherapies (pg. 36401 para. 1). Although, Nagasaki is silent with respect to the nucleic acid sequence of human AQP2 and does not explicitly teach the sequence is SEQ ID NO. 1, this is the nucleic acid sequence of human AQP2 as evidenced by Van Lieburg. Van Lieburg reports the nucleotide sequence for human AQP2 which has 100% homology with SEQ ID NO. 1 (see Figure 2 and supplemental STIC search, GenEmbl Result 1 alignment).
Accordingly, at the effective time of filing of the claimed invention, one of ordinary skill in the art would have been motivated to modify the method taught by the combined teachings of Wan, Moon and Dajani to include overexpressing AQP2 which the nucleic acid sequence comprising SEQ ID NO. 1 in head and neck squamous cell carcinoma tumors for the benefit of treating the tumor with a AQP2 nucleic acid sequence known for use in gene therapy as taught by Nagasaki. It would have been obvious to one of ordinary skill to motivated to modify the method taught by the combined teachings of Wan, Moon and Dajani include overexpressing AQP2 which the nucleic acid sequence comprising SEQ ID NO. 1 in head and neck squamous cell carcinoma tumors, since both Wan and Dajani suggest that cancers may be treated by manipulating the expression of aquaporins, and Nagasaki teaches human AQP2 can be overexpressed using gene therapy with a vector encoding human AQP2 to overexpress. Furthermore, one of ordinary skill in the art would have a reasonable expectation of success in making such a modification to the method of Wan, since Wan teaches overexpression in glioma cancer prevents basal glioma cell invasion, both Wan and Dajani suggest treating tumors by manipulating aquaporin expression, and Nagasaki teaches that overexpressing human AQP2 (SEQ ID NO. 1) is possible for gene therapy.
Wan does not teach the method where the recombinant lentiviral vector is plvx -CMV-Zsgreen as recited in claim 2 step (a). Additionally, Wan does not explicitly teach the method where wherein the recombinant lentiviral vector is produced by co-transfecting the plvx-CMV-ZsGreenl vector containing SEQ ID NO:1, a packaging plasmid psPAX2, and an envelope plasmid pMD2.G into 293T cells, and collecting the lentivirus supernatant 48 hours after transfection as recited in claim 9.
However, Li teaches a method of expressing a human protein using a lentiviral vector plvx-CMV-Zsgreen (pg. 2107 Col. 2 para. 3). Li further teaches the method where 293T cells were transfected with the transfer plasmid encoding the desired gene, the envelop pMD2G plasmid an the packaging psPAX2 plasmid (pg. 2107 Col. 2 last para.). Li teaches the titer for the vector containing the desired gene was 2.5 x 108 TU/ml (pg. 2107 Col. 2 last para.).
In further support, Wan teaches the lentiviral vector, pSSLV-CMV-Zsgreen-puro containing the AQP2 sequence which was co-transfected with packaging vectors into 293T cells (pg. 11 Col. 1 para. 4).
Accordingly, at the effective time of filing of the claimed invention, one of ordinary skill in the art would have been motivated to modify the teachings of Wan in such a way that the recombinant lentiviral vector is plvx-CMV-Zsgreen for the purpose being able to express an exogenous protein such as AQP2. Furthermore, it would have been obvious to one skilled in the art to have further modified the recombinant lentiviral vector such that the vector is plvx-CMV-Zsgreen, since methods of expressing exogenous proteins were known to use such vectors as taught by Li. Such a modification merely involves the substitution of one known type of recombinant lentiviral vector for another for the expression of an exogenous protein using a recombinant lentiviral vector.
Wan does not teach the method where the recombinant lentiviral vector is delivered into head and neck squamous cell carcinoma tumor cells by in-tumor injection, wherein the lentivirus has a titer of not less than 1x 108 TU/mL as recited in claim 2 step (b).
However, Rossowska teaches the effective delivery of a recombinant lentiviral vector to a tumor by intratumor injection (pg. 2 Col. 2 para. 2, pg. 4 Col. 1 last para. and Fig. 4). Additionally, Li teaches a titer for a lentiviral vector containing a desired gene of 2.5 x 108 TU/ml (pg. 2107 Col. 2 last para.).
Accordingly, at the effective time of filing of the claimed invention one of ordinary skill in the art would have been motivated to modify the method of the combined teachings of Wan, Moon, Dajani and Naagaskito inject the recombinant lentiviral vector into the head and neck squamous cell carcinoma tumor at a titer of at least 1x 108 TU/mL for the benefit of administering the vector directly into the tissue to be treated at a similar concentration known to be effective. It would have been obvious to one of ordinary skill in the art to use known modes of injection for treating tumors with a recombinant lentiviral vector in method taught by combined teachings of Wan, Moon, Dajani and Naagaskito. Furthermore, one of ordinary skill in the art would have had a reasonable expectation of success in making such a modification, since successful treatment of tumors by intratumoral injection of a recombinant lentiviral vector was known as taught by Rossowska. Additionally, one of ordinary skill in the art would have recognized that the virus titer injected would be a matter of routine optimization depending on such factors as the desired amount of expression and the tumor size.
It is noted that the cited references do not teach that their method can be used in the manner instantly claimed for inhibiting proliferation and migration of the head and neck squamous cell carcinoma tumor cells and reducing the growth rate of the head and neck squamous cell carcinoma tumor by the overexpression of aquaporin 2 as recited in claim 2 step (d). However, the combined teachings of Wan, Moon, Dajani and Nagasaki teach the claimed method of overexpressing APQ2 in head and neck squamous cell carcinoma tumor cells. Therefore the overexpression go AQP2 in the head and neck squamous cell carcinoma tumor cells would result in the claimed result. Thus, the claimed result of inhibiting proliferation and migration of the head and neck squamous cell carcinoma tumor cells and reducing the growth rate of the head and neck squamous cell carcinoma tumor must be inherent to the method as taught by the references and a necessary effect of practicing the method.
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.
Response to Arguments
Applicant's arguments filed Mar. 30, 2026 have been fully considered but they are not persuasive.
With respect to the rejections under 35 U.S.C. § 112 (a) scope of enablement, 35 U.S.C. § 112 (b), and 35 U.S.C. § 101 Applicant argues that they have amended the claims to overcomes these rejections (Remarks pg. 6 para. 3 to pg. 7 last para.). However, these argument were not found to be persuasive with respect to the rejections under 35 U.S.C. § 112 (a) scope of enablement and new rejections have been made to address the amendments. As explained in the new rejections and the new rejection under 35 U.S.C. § 112 (a) written description for new matter, the specification provides no support for treating a human head and neck carcinoma tumor using the claimed method.
Applicant argues that the key features and novelty of the invention is that Aquaporin 2 (AQP2) is a specific tumor marker for head and neck squamous cell carcinoma (HNSCC) and that overexpression of the nucleotide sequence, SEQ ID NO:1 which encodes AQP2, in HNSCC tumor cells inhibits HNSCC cell proliferation, migration, and in vivo tumor growth (Remarks pg. 8 para. 1). Applicant argues that the claimed embodiments are the first to validate AQP2 as an HNSCC marker with clinical and functional data and that the specification provides an enabling experimental data (Remarks pg. 10 para. 2 and pg. 11 last para.). However, this argument was not found to be persuasive, since the prior art teaches using AQP2 as a cancer marker. Specifically, Moon teaches AQP2 is decreased in many tumors and is not expressed in human head and neck carcinoma cell lines (0005, 0023, and 0079).
With respect to the rejections under 35 U.S.C. § 103, Applicant argues that hindsight reasoning was used by the Examiner to reconstruct the invention based on the Applicant’s own disclosure and claims (Remarks pg. 9 para. 1). Specifically, Applicant argues that Moon does not teach or suggest any use of AQP2 as a tumor marker for HNSCC (human head and neck carcinoma cell) and Moon teaches that there is no expression in HNSCC cell lines and the mere lack of gene expression does not suggest that a gene is a tumor marker (Remarks pg. 9 para. 3). In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). It is maintained that it would have been obvious to combine the teachings in Moon that there is a desire to identify novel molecular markers for cancer and tumors with the teachings of analyzing the expression of AQPs in human head and neck carcinoma cell lines and the teach that AQP2 was not expressed in any of the cancer cell lines they tested (0005, 0023, 0079, 0081 and 0115). It would have been obvious to one of ordinary skill in the art use AQP2 as a tumor marker since it is not expressed in any of the cancers/tumors tested in Moon including human head and neck carcinoma cell lines. Therefore, it is maintained that one of ordinary skill in the art would have been motivated to detect the expression of AQP2 in head and neck squamous cell carcinoma tumors for the benefit of detecting tumors, since Moon teaches the lack of AQP2 expression in head and neck carcinoma cell lines and the desire for additional tumor markers to detect tumors.
Applicant argues that Moon does not focus on HNSCC but generically to head and neck carcinoma (Remarks pg. 9 para. 4). However, this argument was not found to be persuasive, since after further review of Moon it was found that Moon teaches detecting no expression of AQP2 in human head and neck carcinoma cell lines by RT-PCR (0081 and 0115). Moon teaches the head and neck cancer cell lines tested include 183A, 22B, 17A and 11B from ATCC (0115) and 17A and 22B are head and neck squamous cell carcinoma cell lines.
Applicant argues that the additional references only provide APQ2 sequence data and do not provide any tumor-related information or motivation to combine Moon’s negative expression data with the sequence data. Specifically, Van Lieburg only disclosed the human AQP2 amino acid and nucleotide sequences and NCBI Blast alignment only confirms sequence identity (Remarks pg. 9-10 bridging para. and pg. 12 para. 1). Applicant is reminded that Van Lieburg and NCBI Blast alignment are evidentiary references supporting the human APQ2 taught by Moon inherently has the amino acid sequence of SEQ ID NO. 2, this is the amino acid sequence of human AQP2. Van Lieburg and NCBI Blast alignment are not references supporting a rejection under U.S.C. §103, and thus is not being used to establish obviousness of a particular limitation.
Applicant argues that Moon teaches away from the claimed embodiment, since Moon does not teach or suggest any use of AQP2 as a tumor marker and Moon only relies on lack of expression in order to detect cancer (Remarks pg. 9 para. 2-3). However, this argument was not found to be persuasive, since Moon does not explicitly state that AQP2 cannot be used as a tumor marker and instead teaches that it is not expressed in any of the cancers or tumors tested.
Applicant argues that Moon did not consider AQP2 to be a relevant tumor marker and for testing, since AQP2 is not in the list of tumor markers and the recommended screening taught by Moon (Remarks pg. 9 para. 4). However, this argument was not found to be persuasive, since Moon does not explicitly state that AQP2 cannot be used as a tumor marker and instead reports screening cancer cell lines for AQP2 expression and states there is no expression of AQP2 in any of the cancer cell lines they tested (0001, 0081, and 0115).
Applicant argues that Wan is focused on glioma and does not disclosed AQP2 overexpression as a therapy for HNSCC, and one skilled in the art would not extend results in glioma to HNSCC (Remarks pg. 10-11 bridging para.). Applicant argues that Moon only reports expression data of AQP2 in HNSCC cell lines and Dajani only suggest manipulating APQ function might offer therapeutic advantages and these teachings are insufficient to arrive at the claimed invention (Remarks pg. 11 para. 2). Applicant argues that Nagasaki is directed to nephrogenic diabetes insipidus and not cancer therapy and is unrelated to HNSCC and has a different therapeutic goal (Remarks pg. 11 para. 3). 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). In this case, Wan is been relied upon for the teaching of treating cancer cells by overexpressing the transmembrane protein, aquaporin (AQP2), Moon is being upon for the teaching that AQP2 was not expressed in any of the cancer cell lines they tested, Dajani suggests that manipulating the targeted expression of AQPs can be used for new chemotherapies, and Nagasaki teaches injecting a vector encoding human AQP2 to overexpress AQP2 in the kidney or the feasibility of gene therapy with AQP2. It is maintained that one of ordinary skill in the art would have been motivated to modify the method of Wan to include overexpressing AQP2 in head and neck squamous cell carcinoma tumors for the benefit of treating the tumor as taught by Wan and Dajani and for treating a tumor known not to express AQP2 and benefit from overexpression as taught by Moon. Furthermore, it is maintained that one of ordinary skill in the art would have been motivated to modify the method taught by the combined teachings of Wan, Moon and Dajani to include overexpressing AQP2 which the nucleic acid sequence comprising SEQ ID NO. 1 in head and neck squamous cell carcinoma tumors for the benefit of treating the tumor with a AQP2 nucleic acid sequence known for use in gene therapy as taught by Nagasaki. Applicant addressed each prior art reference separately and only with regard to the specific limitations of that reference. However, when the prior art references are taken as a whole, they teach that the skilled artisan knows each step of the method as currently claimed.
Conclusion
No claims are allowed.
Examiner Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EMILY ANN CORDAS whose telephone number is (571)272-2905. The examiner can normally be reached on M-F 9:00-5:30 EST.
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/EMILY A CORDAS/Primary Examiner, Art Unit 1632
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