DETAILED ACTION
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. Applicant’s Request for Continued Examination, Amendment and Arguments/Remarks received on 20 October 2025 have been entered.
Claims 75-91 were previously pending in the application. Claims 77 and 89 have been cancelled by Applicant, and new claims 92-93 have been added by Applicant. Claims 75-76, 78-88, and 90-93 are currently pending in the application. Claims 75 and 80 are independent claims.
Claims 75-76, 78-88, and 90-93 are currently pending and under examination in the instant application. An action on the merits follows.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Priority
The present application is a CON of U.S. Application No. 15/579,184, filed 09 October 2018, now U.S. Patent No. 11,291,689, which is a 35 U.S.C. 371 national stage filing of International Application No. PCT/US2016/035487, filed 02 June 2016, which claims priority to U.S. Provisional Application Nos. 62/175,203, filed 12 June 2105, 62/170,604, filed 03 June 2015, and 62/170,619, filed 03 June 2015.
Thus, the earliest possible priority for the instant application is 03 June 2015.
Note that U.S. Provisional Application Nos. 62/175,203, filed 12 June 2105, 62/170,604, filed 03 June 2015, and 62/170,619, filed 03 June 2015 do not disclose treating the hADSCs with a genotoxic agent to induce senescence, nor do they disclose treating the hADSCs with bleomycin. As such, the new limitations recited in independent claims 75 and 80 and new claims 92-93 have an earliest priority date of 02 June 2016.
Information Disclosure Statement
The information disclosure statements filed 20 October 2025 and 16 January 2026 have been considered by the Examiner. Examiner notes the filing of IDS Size Fee assertions for the IDS filed 20 October 2025 and 16 January 2026, as required under 37 CFR 1.98, indicating that no IDS size fee is required under 37 CFR 1.17(v) at this time.
Claim Rejections - 35 USC § 112(b)
The rejection of amended, previously presented, and cancelled claims 75-79 under 35 U.S.C. 112(b) as failing to particularly point out and distinctly claim the subject matter which the inventor(s) regards as the invention for claim 75 reciting “the one or more secreted factors”, is withdrawn in view of Applicant’s cancellation of claim 77 and amendments to claim 75 removing “the” before “one or more secreted factors”.
**The following new rejection is necessitated by amendments to the claims.
Previously presented claims 76, 78, 88, and 90 are rejected 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.
Claims 76, 78, 88, and 90 recite the limitation "the population of hADSCs" in line 1 of each claim. There is insufficient antecedent basis for this limitation in the claim. It is unclear whether the population of hASDCs is meant to comprise SR and SEN cells or at least 50% SEN cells prior to or after the step of treating the population of hADSCs with a genotoxic agent to induce genotoxic-induced senescence. As such, the metes and bounds of the claim cannot be determined.
Claim Rejections - 35 USC § 103
The rejection of amended, previously presented, and cancelled claims 75-91 under 35 U.S.C. 103 as being unpatentable over Gonzalez-Rey et al. 2009, Ann. Rheum. Dis., 69, 241-248, cited in a prior action, in view of Murphy et al. 2013, Experimental & Molecular Medicine, 45, e54, 1-16, cited in a prior action, Renner et al. 2009, Transplantation Proceedings, 41, 2607-2611, cited in a prior action, Larocca et al. 2013, PLOS ONE, 8(10), e76396, 1-9, cited in a prior action, Przybyt et al. 2013, Journal of Translational Medicine, 11(39), 1-15; Kyurkchiev et al. 2014, World Journal of Stem Cells, 6(5), 552-570; Park et al. 2011, Stem Cell Rev. & Rep., 7, 381-393, cited in a prior action, Ivanova-Todorova et al. 2012, Journal of Biomedicine & Biotechnology, 295167, 1-8, cited in a prior action, Wang et al. 2011, Cell Cycle, 10(10), 3016-3030, IDS, cited in a prior action, Estrada et al. 2013, Cell Death and Disease, 4, e691, 1-13, cited in a prior action, Katsuda et al. 2013, Proteomics, 13, 1367-1353, cited in a prior action, and Lim et al. 2014, Cell Transplantation, 23, 703-714, cited in a prior action, is withdrawn in view of Applicant’s claims which now recite, “treating the population of hADSCs with a genotoxic agent to induce genotoxic-induced senescence” in lines 4-5 of amended independent claim 75 and lines 3-4 of amended independent claim 80.
**The following new rejection is necessitated by Applicant’s amendments to the claims.
Amended, previously presented, and new claims 75-76, 78-88, and 90-93 are newly rejected under 35 U.S.C. 103 as being unpatentable over Gonzalez-Rey et al. 2009, Ann. Rheum. Dis., 69, 241-248, cited in a prior action; in view of Alili et al. [2014, AGE, 36, 1329-1343]; Ovadya & Krizhanovsky [2014, Biogerontology, 15, 627-642]; Coppe et al. [2010, Annu. Rev. Pathol. Mech. Dis., 5, 99-118]; Kyurkchiev et al. 2014, World Journal of Stem Cells, 6(5), 552-570, cited in a prior action; Bartling [2013, Z. Gerontol. Geriat. 46, 613-622]; Murphy et al. 2013, Experimental & Molecular Medicine, 45, e54, 1-16, cited in a prior action; Renner et al. 2009, Transplantation Proceedings, 41, 2607-2611, cited in a prior action; Larocca et al. 2013, PLOS ONE, 8(10), e76396, 1-9, cited in a prior action; Przybyt et al. 2013, Journal of Translational Medicine, 11(39), 1-15, cited in a prior action; Park et al. 2011, Stem Cell Rev. & Rep., 7, 381-393, cited in a prior action; Ivanova-Todorova et al. 2012, Journal of Biomedicine & Biotechnology, 295167, 1-8, cited in a prior action; Katsuda et al. 2013, Proteomics, 13, 1367-1353, cited in a prior action; and Lim et al. 2014, Cell Transplantation, 23, 703-714, cited in a prior action.
Gonzalez-Rey teaches a method for modulating immune cells/ a method of expanding regulatory T cells (Tregs) comprising growing/providing a population of human adipose derived stem cells (hADSCs) [column 2 ¶ 3], treating the population of hADSCs with a genotoxic agent (i.e., mitomycin-C) to suppress proliferative responses [column 3 ¶ 2, Figure 1C], adding an inducing agent comprising TNFα and IFNɣ to the population of hADSCs for 24 hours to induce production of one or more secreted factors by the population of hADSCs [column 4 ¶ 1, Figure 1E], collecting the one or more secreted factors (e.g., conditioned media) [column 4 ¶ 1, Figure 1E], and contacting immune cells/peripheral blood mononuclear cells (PBMCs) with the one or more secreted factors (i.e., conditioned media) to immune modulate the immune cells/ induce expansion of Tregs (i.e., IL-10 secreting regulatory T cells) [abstract, column 3 ¶ 2-3, column 4 ¶ 1, column 6 ¶ 1-column 7 ¶ 1, Figure 1E, 4]. Gonzalez-Rey also teaches that the culture supernatants/ conditioned media comprise secreted factors [column 4 ¶ 2, Figure 1E].
Note that independent claims 75 and 80 as written do not require that the “collecting the one or more secreted factors” include removal of the hADSCs.
Note also that the specification of the instant application does not provide a limiting definition of the term “factor production unit”. As such, “factor production unit” has been interpreted to be any structure in which the ADSCs are producing the secreted factors. Therefore, by teaching the production of secreted factors (e.g., conditioned media) from ADSCs, Gonzalez-Rey necessarily teaches that the hADSCs are provided in, and the factors are produced in, a factor production unit.
Gonzalez-Rey teaches that the secreted factors are contacted with PBMCs which are isolated from 22 patients with rheumatoid arthritis (RA) by density sedimentation on Ficoll-Hypaque gradients [column 3 ¶ 2], and as such teaches that the one or more secreted factors are contacted with immune cells (e.g., PBMCs) ex vivo, that the immune cells are collected from a blood sample from a subject, and that the immunomodulated immune cells comprise Tregs such that production of the Tregs from the immune cells is increased.
Gonzalez-Rey does not teach that the genotoxic agent induces genotoxic-induced senescence, that the inducing agent comprises IL-2, that the inducing agent is removed following the 24 hour induction, that the secreted factors are collected about 72 hours after removal of the inducing agent, that the secreted factors are administered to a subject, delivering the immunomodulated immune cells back into the subject, that the population of hADSCs comprises self-renewing (SR) cells and senescent (SEN) cells, wherein the population of hADSCs comprise at least 50% SR cells, nor wherein the population of hADSCs comprise at least 50% SEN cells. However, Alili, Ovadya, Coppe, Kyurkchiev, Bartling, Murphy, Renner, Larocca, Przybyt, Park, Ivanova-Todorova, Katsuda, and Lim, cure these deficiencies.
Alili teaches that mitomycin-C is an alkylating DNA-damaging agent/genotoxic agent, and that treatment with mitomycin-C results in a drug-induced accelerated senescence with long-term expression of senescence markers [abstract]. Therefore, by teaching treatment of ADSCs with mitomycin-C to prevent proliferation, Gonzalez-Rey is inherently teaching treating the population of ADSCs with a genotoxic agent to induce cellular senescence. Reliance upon inherency is not improper even though rejection is based on Section 103 instead of Section 102. In re Skoner, et al. 186 USPQ 80 (CCPA). As stated in MPEP 2112, The express, implicit, and inherent disclosures of a prior art reference may be relied upon in the rejection of claims under 35 U.S.C. 102 or 103. "The inherent teaching of a prior art reference, a question of fact, arises both in the context of anticipation and obviousness." In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed. Cir. 1995). See also In re Grasselli, 713 F.2d 731,739, 218 USPQ 769, 775 (Fed. Cir. 1983). There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the relevant time, but only that the subject matter is in fact inherent in the prior art reference. Schering Corp. v. Geneva Pharm. Inc., 339 F.3d 1373, 1377, 67 USPQ2d 1664, 1668 (Fed. Cir. 2003).
Ovadya teaches that senescence is associated with a senescence-associated secretory phenotype (SASP) in a variety of cell types and tissues, which includes secretion of the cytokine IL-6 [abstract, column 6 ¶ 4, column 9 ¶ 1, column 12 ¶ 2, column 15 ¶ 1, column 16 ¶ 1, column 17 ¶ 2. Column 19 ¶ 1], which Coppe teaches is the most prominent cytokine of the SASP and which has been shown to be associated with DNA damage-induced senescence of a variety of cells [column 5 ¶ 1- column 6 ¶ 1, Table 1]. Additionally, Kyurkchiev teaches that IL-6 promotes the proliferation of Treg cells [column 9 ¶ 1-2, column 10 ¶ 1-2, 4, Figure 1]. Therefore, an ordinarily skilled artisan at the time of filing the instant application would have been motivated to induce cellular senescence in a population of hASDCs to increase IL-6 secretion and thereby further promote the proliferation/expansion of Treg cells.
Murphy teaches that mesenchymal stem cells (MSCs) have been isolated from adipose, and that MSCs assist via paracrine mechanisms and modulate the regenerative environment via anti-inflammatory and immunomodulatory mechanisms, such that in response to inflammatory molecules, including IL-2, MSCs secrete an array of growth factors and anti-inflammatory proteins with complex feedback mechanisms among the many types of immune cells [column 2 ¶ 2, column 4 ¶ 2, Table 2]. Note that MSCs isolated from adipose tissue qualify as adipose derived stem cells (ADSCs). Murphy also teaches that such adipose derived MSCs prevent proliferation and function of many inflammatory immune cells, including T cells, natural killer cells, B cells, monocytes, macrophages, and dendritic cells [column 4 ¶ 2], and that MSCs increase the production of Treg [column 4 ¶ 2, column 18 ¶ 3-column 19 ¶ 2, Table 2]. Specifically, Murphy teaches that MSCs activated by inflammatory molecules, such as IL-2, secrete IL-10, which promotes Treg production directly, and also secrete IL-6, which induces secondary cells to secrete IL-10, thereby further promoting Treg production [column 4 ¶ 2, Table 2].
Murphy additionally teaches that adipose derived MSCs help drive the immune system toward a more favorable TH1/TH2 balance, which along with the induction of Treg, is favorable in autoimmune diseases, such that a patient with autoimmune inner ear disease and documented severe hearing loss for 3 years recovered normal hearing in one ear and moderate hearing in the other ear following administration of autologous, expanded MSCs [column 4 ¶ 2, column 18 ¶ 3-4, Table 2]. Murphy also teaches that human adipose-derived MSCs induced an increase in Treg cells in a murine model of RA, indicating feasibility of applying the same principle to human cases of RA [column 18 ¶ 4]. Murphy further teaches that rectal mucosa healing and a significant increase in circulating Treg cells was observed in all of twelve patients with Fistulizing Crohn’s disease treated with intrafistular injection of autologous, expanded bone marrow (BM) MSCs, and that Treg cells increased significantly in two patients with severe systemic lupus erythematosus administered autologous BM MSCs [column 19 ¶ 1-2].
Additionally, Renner teaches that IL-2 can boost the inhibitory potential of MSCs for inhibiting T cell activation similarly to IFN-ɣ and TNF-α [column 4 ¶ 1, column 6 ¶ 2, column 7 ¶ 2, Figure 3], and Larocca teaches that IL-2 is an important growth factor for Treg and has been shown to be important in triggering MSCs to induce tolerance [column 14 ¶ 6]. Therefore, an ordinarily skilled artisan at the time of filing the instant application would have been motivated to include IL-2 in an inducing agent for inducing hADSCs to produce secreted factors for immunomodulating immune cells, such as increasing production of Tregs.
Regarding the limitation to remove the inducing agent following the 24 hour incubation with the inducing agent, Przybyt teaches a method of producing adipose-derived stem cell (ADSC)-derived conditioned media, in which the ADSCs were treated with inducing agent comprising TNF-α or IL-1β to mimic pro-inflammatory conditions for 24 hours, followed by removal of the inducing agent by medium replacement without the inducing agent, and subsequent collecting of the conditioned medium after another 24 hours of culturing [column 4 ¶ 1, Figure 2]. Therefore, Przybyt teaches to remove the inducing agent from the cell culture media such that the added inducing agent is not present in the collected conditioned media comprising the one or more secreted factors produced by the cultured ADSCs.
Przybyt further teaches that ADSCs pre-treated with IL-1β have increased IL-6 protein secretion, such that the conditioned media derived therefrom has increased IL-6 protein levels [abstract, column 2 ¶ 1, column 11 ¶ 3- column 12 ¶ 1]. Additionally, Murphy teaches that IL-6 is a key immunomodulatory cytokine secreted by MSCs in response to inflammatory molecules, such as IL-2, and that IL-6 secretion by MSCs increases IL-10 secretion by dendritic cells [column 4 ¶ 2, Table 2]. Kyurkchiev teaches that IL-6 stimulates the secretion of IL-10 by different types of cells and that IL-6 promotes the proliferation of Treg cells [column 9 ¶ 1-2, column 10 ¶ 1-2, 4, Figure 1]. Therefore, Przybyt teaches a method of inducing of ADSCs with an inflammatory inducing agent for 24 hours, followed by removal of the inducing agent, such that the cells are able to secrete sufficient factors into the fresh media following removal of the inducing agent for the subsequent conditioned media to comprise key immunomodulatory cytokines which are key for the immunosuppressive functions of activated ADSCs/MSCs, such as expansion of regulatory T cells. As such, an ordinarily skilled artisan would have been motivated to include a step of medium replacement without the inducing agent to remove the inducing agent and introduce fresh media into which the cells can subsequently secrete the secreted factors.
Kyurkchiev further teaches that IL-2 is a T cell mitogenic cytokine, that addition of exogenous IL-2 partially reversed the antiproliferative effects of TGFβ, which is constitutively expressed by MSCs and serves as a principal mediator of immune regulation by inhibiting effector T cell proliferation and function, generation of regulatory T cells from naïve T lymphocytes, and attenuation of cytokine production, etc. [column 11 ¶ 3-4, column 12 ¶ 2]. Therefore, an ordinarily skilled artisan at the time of filing the instant application would have been motivated to remove the IL-2 from the ADSC culture media prior to culturing the IL-2 induced ADSC for the production of conditioned media so that the IL-2 would not be present in the collected conditioned media/collected secreted factors and as such would not oppose the immunomodulatory functions of the TGFβ nor promote the proliferation of effector T cells.
Gonzalez-Rey, Alili, Ovadya, Coppe, Kyurkchiev, Bartling, Murphy, Renner, Larocca, and Przybyt do not teach explicitly that the secreted factors are collected about 72 hours following removal of the inducing agent. However, Park teaches the production and use of MSC-derived conditioned media (MSC-CM) comprising MSC-derived secreted factors in which the conditioned media is harvested 48-72 hours after plating [column 3 ¶ 1-2, column 5 ¶ 1-2, column 22 ¶ 1]. Park further teaches the addition of the MSC-CM to T lymphocytes, wherein the MSC-CM induced immunosuppression/immunomodulation of T lymphocytes such that the T lymphocytes entered into apoptosis and were subjected to cell cycle arrest during the course of activation [abstract, column 18 ¶ 3]. Park further teaches that MSC-CM induced an increase in the percentage of Treg cells in an immune cell population [column 22 ¶ 2].
Additionally, Ivanova-Todorova teaches the production and use of adipose tissue-derived MSC-derived conditioned media (MSC-CM) in which the MSC-CM was harvested from cells 48 hours following the final culture media change [column 4 ¶ 2]. Ivanova-Todorova further teaches that the MSC-CM was added to T cells isolated from PBMCs, and that the secretory factors (including IL-6) in MSC-CM lead to increased expression of FoxP3, increased secretion of IL-10 by T helpers, and an increased number of immunosuppressive helpers which secrete IL-10 [abstract]. Therefore, given the teachings of Park and Ivanova-Todorova of the production of MSC-CM which comprises secreted factors capable of immunomodulating immune cells, such as inducing expansion of Tregs, an ordinarily skilled artisan at the time of filing the instant application would have been motivated to collect the conditioned media/ secreted factors from a culture of MSCs 48-72 hours following the final media change, such as the media change following incubation of the cells with an inducing agent which removes the inducing agent from the cells.
Regarding the composition of hADSCs comprising self-renewing (SR) and/or senescent (SEN) cells, as claimed in claims 76, 78, 88, and 90 of the instant application, note that claims 76, 78, 88, and 90 do not indicate whether the population of hADSCs comprises SR and SEN cells and/or comprise at least 50% SEN cells prior to or following induction of genotoxic-induced senescence in the cell population.
Alili teaches that approximately 8% of MMC-treated cells maintained expression of Ki67, indicating a mitotic, non-senescent state [column 17 ¶ 1, Figure 2], indicating that the cell population comprises both replicative and senescent cells, wherein approximately 90% (i.e., >50%) of the cells in the MMC-treated cell population are senescent. Therefore, an ordinarily skilled artisan at the time of filing the instant application would expect that a genotoxic agent-treated cell population which has had senescence induced would comprise at least 50% senescent cells.
Regarding the limitations to administer the one or more secreted factors to a subject (claim 81 of the instant application) or to deliver the immunomodulated immune cells back into the subject from which the cells were collected (claim 84 of the instant application), Katsuda teaches that MSC-derived extracellular vesicles (EVs) comprise MSC-derived secreted factors and mimic the phenotype of their parent cells [abstract, column 17 ¶ 1]. Katsuda teaches the administration of MSC-derived EVs to an acute kidney injury model mouse, such that the therapeutic protective effects using MSC-EVs were similar to the of MSCs themselves by inducing proliferation and resistance to apoptosis in tubular epithelial cells [column 14 ¶ 4]. Katsuda also teaches the administration of MSC-derived conditioned media to a porcine subject, wherein the porcine subject is a model of myocardial ischemia/reperfusion injury (MIR) such that treatment with MSC-CM results in a reduction of myocardial infarct size which is dependent on cytokines and growth factors from the conditioned media [column 16 ¶ 1]. Katsuda further teaches that ADSCs potentially contribute to Aβ clearance in Alzheimer’s Disease (AD), and that ADSC-derived EVs reflect their parent cells, and therefore hold potential as a therapeutic tool for AD, such that ADSC-derived EVs warrant further investigation as a promising novel therapy for AD patients. Katsuda further teaches that MSCs can produce the immunomodulatory cytokines and associated trophic factors that correspond to a wide range of pathological conditions, modulating both the innate and adaptive immune systems, thereby contributing to tissue repair through secretion of immunomodulatory cytokines and trophic factors, and that MSCs exhibit immunosuppressive activity through secretion of several cytokines that inhibit the activity of natural killer cells, helper T cells, and cytotoxic T cells while activating the generation of regulatory T cells [column 13 ¶ 2- column 14 ¶ 1, Figure 2]. Therefore, an ordinarily skilled artisan at the time of filing the instant application would have been motivated to administer secreted factors isolated from a culture of hADSCs to a subject, thereby contacting immune cells of a subject with the one or more secreted factors to immunomodulate the immune cells and prevent injury and/or promote healing.
Further, Lim teaches that MSCs can generate immunoregulatory cells such as Treg cells, that powerful regulatory CD4+ or CD8+ lymphocytes are generated in cocultures of PBMCs with MSCs, that Treg cells may amplify the reported MSC-mediated immunosuppressive effect, that induced Treg cells can suppress effector T-cell responses in vitro and in vivo, and that induced Treg cells have attracted a great deal of attention largely based on their well-established importance in maintaining peripheral tolerance [column 3 ¶ 3- column 4 ¶ 1]. Lim also teaches that several phase I trials indicated that peripheral blood or cold blood-derived Treg cells could decrease acute graft-versus-host disease (GVHD), that the immunomodulatory capacity of MSCs was not targeted by the inhibitory effect of Treg cells and vice versa, and that ex vivo-expanded MSCs and induced Treg cells could play a complementary role in preventing GVHD [column 4 ¶ 1-2]. Lim goes on to teach the coadministration of MSCs and induced Treg cells to mice following MHC-mismatched bone marrow transplants, that Treg cells contribute principally to the regulation of Th17 responses, that a combination of MSCs and Treg cells has a cooperative effect in preventing aGVHD during the early posttransplant period, and that the induction of Treg cells was noticeably higher in the MSC plus Treg cell group compared with the Treg cell or MSC only groups [abstract, column 19 ¶ 3]. Lim additionally teaches that the combination cell therapy of MSCs and Treg cells induced long-term survival and significantly reduced clinicopathological manifestations in an aGVHD model, that coadministration of MSCs and Treg cells are expected to improve the shortcomings of MSC or Treg cell therapy alone, and that combined cell therapy is a therapeutic approach for preventing aGVHD [column 20 ¶ 2]. Therefore, given the teachings of Katsuda above that MSC-CM mimics the phenotype of the parent MSCs, an ordinarily skilled artisan at the time of filing the instant application would have been motivated to combine MSC-CM administration to induce Treg cells with the administration of the induced Treg cells into a subject to reduce the clinicopathological manifestation of aGVHD.
Regarding new claims 92 and 93 requiring that the genotoxic agent is bleomycin, Bartling teaches that bleomycin is a genotoxic agent which induces cellular senescence [column 4 ¶ 2- column 5 ¶ 1, column 14 ¶ 1- column 15 ¶ 1, Table 2]. Bartling also teaches that the senescence-mediating effect of bleomycin was confirmed by numerous experimental studies [column 14 ¶ 1]; as such, an ordinarily skilled artisan would have been motivated to select bleomycin as the genotoxic agent to induce senescence because the senescence-mediating effect of bleomycin has been well characterized.
Therefore, given the motivation taught by Ovadya, Coppe, and Kyurkchiev to induce cellular senescence in a population of hASDCs to increase IL-6 secretion and thereby further promote the proliferation/expansion of Treg cells; the motivation taught by Murphy, Renner, and Larocca to include IL-2 in an inducing agent for inducing hADSCs to produce secreted factors for immunomodulating immune cells, such as increasing production of Tregs; the motivation taught by Park and Ivanova-Todorova to collect the conditioned media/ secreted factors from a culture of MSCs 48-72 hours following the final media change, such as the media change following incubation of the cells with an inducing agent which removes the inducing agent from the cells; the motivation taught by Przybyt, Murphy, and Kyurkchiev to include a step of medium replacement without the inducing agent to remove the inducing agent and introduce fresh media into which the cells can subsequently secrete the secreted factors; the motivation taught by Kyurkchiev to remove the IL-2 from the ADSC culture media prior to culturing the IL-2 induced ADSC for the production of conditioned media so that the IL-2 would not be present in the collected conditioned media/collected secreted factors and as such would not oppose the immunomodulatory functions of the TGFβ nor promote the proliferation of effector T cells; the teaching of Alili that approximately 90% (i.e., >50%) of the cells in the genotoxic agent-treated cell population are senescent; the motivation taught by Katsuda to administer secreted factors isolated from a culture of hADSCs to a subject, thereby contacting immune cells of a subject with the one or more secreted factors to immunomodulate the immune cells and prevent injury and/or promote healing; the motivation taught by Katsuda and Lim to combine MSC-CM administration to induce Treg cells with the administration of the induced Treg cells into a subject to reduce the clinicopathological manifestation of aGVHD; and the motivation taught by Bartling to select bleomycin as the genotoxic agent to induce senescence because the senescence-mediating effect of bleomycin has been well characterized; it would have been prima facie obvious to modify the method of Gonzalez-Rey to use IL-2 in the inducing agent, to remove the IL-2 from the media following the 24 hour induction period, to collect the secreted factors, such as in the conditioned media, about 72 hours following removal of the inducing agent, to use hADSCs comprising self-renewing and/or senescent cells such that the hADSCs are either at least 50% SR or at least 50% SEN, to administer the secreted factors to a subject, and/or to administer the immunomodulated immune cells back into the subject with a reasonable expectation of success.
Insofar as applicant’s arguments apply to this new grounds of rejection, Applicant argues that:
Applicant has amended claims 75 and 80 to recite a step of treating the population of hADSCs with a genotoxic agent to induce genotoxic-induced senescence, prior to the step of adding an inducing agent comprising IL-2 to the population of hADSCs; and
None of the cited references disclose or suggest inducing genotoxic-induced senescence in hADSCs, particularly in combination with a subsequent induction using IL-2.
However, this is not agreed.
In response to Applicant’s arguments against the references individually, it is noted that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). 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). Further, the Examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In addition, 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).
Specifically, regarding Applicant’s argument 1), note that although the step of treating the population of hADSCs with a genotoxic agent to induce genotoxic-induced senescence is recited in the claim prior to the step of adding an inducing agent to the population of hADSCs, the claims as written do not require that the two steps be performed in any particular order.
Gonzalez-Rey teaches the addition of the genotoxic agent mitomycin-C (MMC) to a population of hADSCs prior to addition of T cells. Additionally, Alili teaches that treatment with mitomycin-C results in a drug-induced accelerated senescence with long-term expression of senescence markers [abstract]. Further, Ovadya, Coppe, and Kyurkchiev teach the motivation to induce cellular senescence in a population of hASDCs to increase IL-6 secretion such that the increased IL-6 secretion will promote the proliferation/expansion of Treg cells.
Regarding Applicant’s argument 2), as discussed above for argument 1, the cited references teach inducing genotoxic-induced senescence in hADSCs. Additionally, Murphy and Renner teach the motivation to include IL-2 in an inducing agent for inducing hADSCs to produce secreted factors for immunomodulating immune cells, such as increasing production of Tregs, in that Murphy was cited for teaching that MSCs activated by inflammatory molecules, such as IL-2, secrete IL-10, which promotes Treg production directly, and also secrete IL-6, which induces secondary cells to secrete IL-10, thereby further promoting Treg production [column 4 ¶ 2, Table 2]. Renner teaches that IL-2 can boost the inhibitory potential of MSCs for inhibiting T cell activation similarly to IFN-ɣ and TNF-α [column 4 ¶ 1, column 6 ¶ 2, column 7 ¶ 2, Figure 3], and Larocca teaches that IL-2 is an important growth factor for Treg and has been shown to be important in triggering MSCs to induce tolerance [column 14 ¶ 6]. Therefore, an ordinarily skilled artisan would have been motivated to include IL-2 in in inducing agent for stimulating MSCs to secrete factors for expanding Treg cells.
Accordingly, Applicant’s arguments do not overcome a finding of obviousness over Gonzalez-Rey in view of Alili, Ovadya, Coppe, Kyurkchiev, Bartling, Murphy, Renner, Larocca, Przybyt, Park, Ivanova-Todorova, Katsuda, and Lim under 35 USC 103.
Double Patenting
Applicant’s reply has overcome the Double Patenting rejection of amended, previously presented, and cancelled claims 75-91 on the ground of nonstatutory double patenting as being unpatentable over claims 1-3 of U.S. Patent No. 11,291,689, hereafter referred to as the ‘689 patent, in view of Gonzalez-Rey et al. 2009, Ann. Rheum. Dis., 69, 241-248, in view of Applicant’s terminal disclaimer filed 20 October 2025.
The terminal disclaimer filed 20 October 2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Patent No. 11,291,689 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Conclusion
No claim is allowed.
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DR. KATIE L. PENNINGTON
Examiner
Art Unit 1634
/KATIE L PENNINGTON/Examiner, Art Unit 1634
Dr. A.M.S. Wehbé
/ANNE MARIE S WEHBE/Primary Examiner, Art Unit 1634
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