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 .
Priority
The instant application is a national stage entry under 35 U.S.C. § 371 of PCT/JP2020/043275 (filed 11/19/2020). Acknowledgement is made of Applicants’ claim for priority to Japanese Application No. JP2019-209929 (filed 11/20/2019).
Response to Amendment
The amendment filed on 02/26/2026 has been received and entered into the application file.
Claims 1-19, 28-29, and 32 read on the previously-elected invention and are examined on the merits herein.
Status of Prior Rejections/Response to Arguments
RE: Rejection of claim 3 under 35 U.S.C. 112(b):
The amendment to claim 3 removing the word “preferably” is sufficient to overcome the rejection of record. Accordingly, the rejection is withdrawn.
RE: Rejection of the following under 35 U.S.C. 103:
claims 1-8 and 14-19 over Sart, as evidenced by BioLife Solutions® and Pharmco®;
claims 9-11 and 13 over Sart in view of Bolognin, as evidenced by BioLife Solutions® and Pharmco®;
claims 12 and 28-29 over Sart in view of Takahashi, as evidenced by BioLife Solutions®, Pharmco®, and Lin;
claims 12 and 28-29 over Sart in view of Milber, further in view of Mansour, as evidenced by BioLife Solutions®, Pharmco®, and Kim:
Applicants assert it would not have been obvious to a person having ordinary skill in the art to have optimized the cooling rate of Sart, et al., as intracellular ice formation may form at an increased cooling rate due to insufficient withdrawal of water during the cryopreservation process. As disclosed in Applicants’ Remarks dated 02/26/2026, the method of the instant application utilizes a proton freezer; a proton freezer is a programmed freezer equipped with a device for generating an electromagnetic field and a magnetic field, wherein an electromagnetic wave of 300 kHz to 2 MHz can inhibit the cell aggregate from being injured by formation of ice (see e.g., par. 0180 of the specification of the instant disclosure).
Figs. 4 and 5 compare outcomes of six different cryopreservation methods: a proton freezer (using a cooling rate of 2°C to 7°C/minute; par. 0246 of the specification), a Bicell freezing container, 0.5°C/minute, 1°C/minute, 0.5°C/minute (with shock cooling), and 1°C/minute (with shock cooling). Fig. 4A is directed to the post-thaw recovery of viable cells after immersion in cryoprotectant for 15 minutes before cryopreservation; Fig. 4B is directed to the neurite extension of spheres after immersion in cryoprotectant for 15 minutes before cryopreservation; Fig. 5A is directed to the post-thaw recovery of viable cells after immersion in cryoprotectant for 60 minutes before cryopreservation; Fig. 5B is directed to the neurite extension of spheres after immersion in cryoprotectant for 60 minutes before cryopreservation.
As seen in Figs. 4B and 5B, the neurite extension of spheres after immersion in cryoprotectant for both 15 and 60 minutes before cryopreservation utilizing a proton freezer is statistically significant when compared to the Bicell condition, which reads on the StrataCooler CryoPreservation Module used in the method of Sart, et al. As seen in Fig. 5A, the post-thaw recovery of spheres cryopreserved utilizing a proton freezer is statistically significant when compared to the Bicell condition.
Therefore, the arguments presented by Applicants in regards to the rejections of record over Sart, et al. are found persuasive. Accordingly, the rejections are withdrawn.
RE: Rejection of the following under 35 U.S.C. 103:
claims 1-3, 5-7, 14, and 16-18 over Ma;
claims 8-11 and 13 over Ma in view of Bolognin:
Applicants assert it would not have been obvious to a person having ordinary skill in the art to have optimized the cooling rate of Ma, et al., for the same reasons as set forth above. Applicants further assert Ma, et al. only teaches cryopreservation of spheres up to 100 µm in diameter.
Regarding the diameter of the cell aggregates/spheres: the Ma, et al. disclosure does teach the size of NSC spheres would be influenced by the ability of the cryoprotectant (CPA) to permeate the interior of the spheres, leading to crystallization and cell necrosis in spheres exceeding a certain size (pg. 190; col. 1, par. 2). Thus, Applicants’ argument of routine optimization of the diameter of NSC spheres is non-obvious over the Ma, et al. disclosure is persuasive; accordingly, the rejection of record for claim 15 is withdrawn.
Regarding the cooling rate: Fig. 4B shows the neurite extension of spheres after immersion in cryoprotectant for 15 minutes before cryopreservation utilizing a proton freezer is statistically significant when compared to the 1°C/minute condition, which reads on the cooling rate used in the method of Ma, et al.; there is no statistical significance between the proton freezer condition and the 1°C/minute condition in regards to the neurite extension of spheres after immersion in cryoprotectant for 60 minutes before cryopreservation (Fig. 5B). Despite this lack of statistical significance, the instant claims do not recite limitations directed to the neurite extensions of the cell aggregates. However, as seen in Fig. 5A, the post-thaw recovery of viable cells, after immersion in cryoprotectant for 60 minutes before cryopreservation with the proton freezer is statistically significant compared to the 1°C/minute condition used in the method of Ma, et al; post-thaw recovery of viable cells is a well-known consideration in the art regarding the cryopreservation method of cells.
Therefore, when taken into account the remaining rejections of record are withdrawn.
RE: Rejection of the following on the ground of nonstatutory double patenting:
claims 1-11 and 13-18 over claims 1-2, 5-10, 12-15, 18, and 21-22 of copending Application No. 17/778,194;
claims 12 and 28-29 over claims 1-2, 5-10, 12-15, 18, and 21-22 of copending Application No. 17/778,194 in view of Milber, further in view of Mansour, as evidenced by Kim;
claim 19 over claims 1-2, 5-10, 12-15, 18, and 21-22 of copending Application No. 17/778,194 in view of Sart:
Applicants have requested the provisional nonstatutory double patenting rejections be held in abeyance until the claims are otherwise deemed to be in condition for allowance.
Respectfully, Applicants are reminded 37 CFR 1.111 requires that replies by applicant or patent owner must reply to every ground of objection and rejection in the prior Office action. Only objections or requirements as to form not necessary to further consideration of the claims may be requested to be held in abeyance until allowable subject matter is indicated. Non-statutory double patenting rejections may not be held in abeyance. See MPEP 714.02.
Accordingly, the rejections are maintained.
Claim Interpretation
The following comments are made to establish broadest reasonable interpretation for the record.
Regarding claims 1-19: Claim 1 is drawn to a method for freezing a cell aggregate including neural cells. Under broadest reasonable interpretation, and as supported by par. 0023 of the as-filed specification of the instant application, the term neural cells is interpreted as encompassing (but not necessarily limited to) neurons and neuron progenitor cells.
Regarding claims 1, 8-14, 18: These claims recite the term including, e.g., “A method for freezing a cell aggregate including neural cells…”, as recited in claim 1. The term ‘including’, like the term ‘comprising’, is an inclusive or open-ended transitional term, and does not exclude additional, unrecited elements or method steps; see MPEP 2111.03(I).
Regarding claims 28-29: These claims are drawn to a method for producing a composition for transplantation comprising a dopamine-producing neuron progenitor cell as an active ingredient. It is noted the method comprises a single active step of freezing a cell aggregate by the method according to claim 1, subsequently reciting further limitations of said cell aggregate. The recitation “[composition] for transplantation” in the preamble is considered an intended use limitation. Intended use limitations only limit the process in so far as the intended use results in a manipulative difference; that is, any cell aggregate frozen by the method of claim 1 that is capable of transplantation and satisfies all other limitations is encompassed by the scope of the instant claims. See MPEP 2111.02(II).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 1-11, 13-19, and 32 are rejected under 35 U.S.C. 103 as being unpatentable over Yamahara, et al. (US 2018/0362922), in view of Pan, et al. (US 2019/0046583), BioLife Solutions® (“CryoStor® CS10 Safety Data Sheet”. 2016), and Nalge Nunc International® (“Cryopreservation Manual”. 1998).
Yamahara, et al. teaches cryopreservation of a cell population (pars. 0097-0102).
Pan, et al. teaches novel compositions and methods to produce 3D organ equivalents of the brain; i.e., “mini-brains” (Abstract).
Nalge Nunc International® teaches cryopreservation of cells (Introduction).
Regarding claims 1-11, 14-15, 32:
Yamahara, et al. teaches a method for cryopreserving a mesenchymal stem cell (MSC) aggregate comprising freezing the aggregate to a temperature of -90°C using a program freezer at a cooling rate of -5°C/minute (pars. 0069, 0099). This renders obvious:
the method for freezing a cell aggregate comprising cooling the cell aggregate at an average cooling speed of 2 to 7 °C/min to freeze the cell aggregate limitations recited in claim 1;
the wherein the average cooling speed in step (2) is 3 to 7 °C/min limitation recited in claim 2;
the cooling from 0 ± 5°C to -30± 5°C at an average cooling speed of 2 to 5 °C/min limitation recited in claim 5, as cooling a cell aggregate would necessarily comprise cooling said aggregate from at least room temperature to 37°C;
the wherein the average cooling speed in step (2) is 3 to 5 °C/min limitation recited in claim 6; and
the cooling the frozen cell aggregate obtained in step (2) to -50°C or lower limitation recited in claim 7.
Yamahara, et al. does not teach the remaining limitations recited in claim 1.
Regarding the neural cells:
Pan, et al. teaches an in vitro brain microphysiological system (BMPS), comprising two or more neural cell types aggregated into a spheroid mass, wherein the spheroid mass has a diameter that is less than about 500 µM (par. 0005), wherein the BMPS comprises pluripotent stem cell (PSC)-derived neural cells (par. 0015). Pan, et al. teaches the cells express TH, LMX1A, and FOXA2 (par. 0009). In an embodiment, the BMPS is generated by culturing 2 x 106 neural progenitor cells (NPCs) with 2 x 104 monocytes per well of a 6 well-plate to generate spheres (pars. 0219-0220). Thus, the BMPS of Pan, et al. renders obvious:
the cell aggregate including neural cells and having a three-dimensional structure limitation recited in claim 1;
the wherein the cell aggregate including neural cells is a cell aggregate including neural cells derived from pluripotent stem cells limitation recited in claim 8;
the wherein the cell aggregate including neural cells comprises cells that are positive for at least one of FOXA2, TH, and NURR1 limitation recited in claim 9;
the wherein the cell aggregate including neural cells comprises cells positive for FOXA2 and LMX1A limitation recited in claim 10;
the wherein the cell aggregate including neural cells comprises cells positive for FOXA2, TH, and NURR1 limitation recited in claim 11;
the wherein the cell aggregate includes 500 to 150,000 cells limitation recited in claim 14; and
the wherein the number of cells contained in the preservation solution is 80,000 to 5,000,000 cells/mL, and the cell aggregate has an equivalent spherical diameter of 150 to 1000 µm limitation recited in claim 15.
It would have been prima facie obvious to a person having ordinary skill in the art to have modified the method of Yamahara, et al. by substituting the MSC aggregate with the BMPS of Pan, et al. This conclusion of obviousness is based on the ‘substitution rationale’. As Pan, et al. teaches the BMPS can be cryopreserved (par. 0021), the skilled artisan would have a reasonable expectation of success in doing so. Thus, the use of the BMPS of Pan, et al. in place of the MSC cell aggregate of Yamahara, et al. is a predictable use of prior art elements according to their established functions as cell aggregates, leading to the predictable result of cryopreservation of the cell aggregate. This rationale aligns with the principle of a simple substitution of one known element for another to obtain predictable results; see MPEP 2143(I)(B).
Regarding step (1) of claim 1:
Nalge Nunc International® teaches cells undergoing cryopreservation should be subjected to an equilibration period, wherein cells are mixed with the cryoprotectant at ambient temperature for at least 15 minutes but no longer than 60 minutes to allow time for the cryoprotectant to penetrate the cells (pg. 4; “Equilibration”). This renders obvious:
the contacting the cell aggregate including neural cells and having the three-dimensional structure with a preservation solution at 0°C to 30°C prior to freezing to prepare a preservation solution-soaked cell aggregate limitation recited in step (1) of claim 1;
the wherein the cell aggregate is contacted with the preservation solution for 15 minutes to 90 minutes in step (1) limitation recited in claim 3; and
the wherein the cell aggregate is contacted with the preservation solution for 15 minutes to 60 minutes in step (1) limitation recited in claim 32.
It would have been prima facie obvious to a person having ordinary skill in the art to have further modified the method of Yamahara, et al. by incorporating an equilibration step as taught by Nalge Nunc International®. This conclusion of obviousness is based on the ‘teaching, suggestion, or motivation rationale’; one would be motivated to do so to allow time for the cryoprotectant to penetrate the cells, as taught by Nalge Nunc International®. Further, as evidenced by the same disclosure, equilibrating cells to the cryopreservation medium is a well-known technique in the art; therefore, the skilled artisan would have more than a reasonable expectation of doing so.
Regarding the cryopreservation solution:
BioLife Solutions® teaches cryopreservation medium CryoStor® CS10, which comprises 10% dimethyl sulfoxide (DMSO) (pg. 1; section 3), and is a clear liquid with a freezing point of -4°C (pg. 2; section 9). This renders obvious:
the cooling the preservation solution-soaked cell aggregate obtained in step (1) from a temperature at least about 5°C higher than the freezing point of the preservation solution to a temperature about 5°C lower than the freezing point limitation recited in step (2) of claim 1;
the wherein the preservation solution has a freezing point of from -1°C to -10°С limitation recited in claim 4; and
the wherein the preservation solution is an aqueous solution comprising 7% to 12% of dimethyl sulfoxide limitation recited in claim 5.
It would have been prima facie obvious to a person having ordinary skill in the art to have further modified the method of Yamahara, et al. by using CryoStor® CS10 from BioLife Solutions® as the cryopreservation medium. This conclusion of obviousness is based on the ‘teaching, suggestion, or motivation rationale’. As evidenced by the BioLife Solutions® disclosure, CryoStor® CS10 is a known cryopreservation medium in the art, and the skilled artisan would have been motivated to use a known cryopreservation medium. Further, as CryoStor® CS10 is well known, one would have more than a reasonable expectation of success.
Thus, the modified method of Yamahara, et al. set forth above renders obvious the limitations recited in claims 1-11, 14-15, and 32.
Regarding claim 13: Following the above discussion, Pan, et al. teaches the BMPS comprises mature dopaminergic neurons (par. 0149); this renders obvious the wherein the cell aggregate including neural cells comprises a dopamine-producing neuron progenitor cell and/or a dopamine-producing neuron limitation recited in claim 13.
Regarding claims 16-17: Following the above discussion, Yamahara, et al. teaches an embodiment wherein the cells are frozen in 1 mL solution in a 2 mL cryotube (par. 0102); this renders obvious the wherein the cell aggregate and the preservation solution have volume of 0.25 mL to 2 mL limitation recited in claim 16, as well as the wherein the cell aggregate and the preservation solution are packed in a 0.5 mL to 15 mL container limitation recited in claim 17.
Regarding claim 18: Following the above discussion, Yamahara, et al. teaches an embodiment wherein the cells cryopreserved for 31 days or more (par. 0101); this renders obvious the method for preserving a cell aggregate including neural cells and having a three-dimensional structure for a long-term, wherein the method comprises holding the frozen cell aggregate obtained by the method according to claim 1 at or below -80°C limitation recited in claim 18.
Regarding claim 19: Following the above discussion, the BMPS of the modified method of Yamahara, et al. is physically capable of being transplanted into a patient. Therefore, it meets the wherein the obtained frozen cell aggregate can be transplanted into a patient without recovery culture after thawing limitation recited in claim 19.
Claims 12 and 28-29 are rejected under 35 U.S.C. 103 as being unpatentable over Yamahara, et al. (US 2018/0362922), in view of Pan, et al. (US 2019/0046583), BioLife Solutions® (“CryoStor® CS10 Safety Data Sheet”. 2016), and Nalge Nunc International® (“Cryopreservation Manual”. 1998), further in view of Takahashi, et al. (WO 2017/183736).
The teachings of Yamahara, et al., Pan, et al., and Nalge Nunc International® are set forth above.
Takahashi, et al. teaches a method for producing dopaminergic neuron progenitor cells (Title). The WO 2017/183736 document is in Japanese language. The published U.S. Patent Application (US 2019/0112575) is relied upon as a translation, with citations made thereto.
Regarding claims 12, 28-29: It is set forth above the modified method of Yamahara, et al. renders obvious the limitations of claim 1. The modified method does not teach the limitations recited in the instant claims.
However, Takahashi, et al. teaches a method to produce dopaminergic neuron progenitor cells (par. 0007), wherein 99.0% cells are positive for FOXA2 and only 14.6% are positive for Nurr1 (par. 0165). Cell aggregates comprising 4 x 105 cells were injected into a rat model of Parkinson’s disease (par. 0166); Four weeks post-injection, immunostaining for TH showed roughly 9% cells as positive for TH (par. 0023, Fig. 5). Further, as evidenced by Lin, et al., Foxa1/2 are sufficient to induce Lmx1a/b expression in mesodiencephalic (mdDA) dopaminergic neuron progenitors (pg. 394; col. 2, par. 4). Thus, the cell aggregate of Takahashi, et al. renders obvious the wherein the cell aggregate including neural cells comprises cells positive for FOXA2 and LMX1A in an amount of 40% or more of the total cells and cells positive for TH and NURR1 in an amount of 40% or less of the total cells limitation recited in claim 12. Additionally, the injection of said cell aggregates into a rat model reads on the method for producing a composition for transplantation limitation recited in claims 28-29.
It would have been prima facie obvious to a person having ordinary skill in the art to have further modified the method of Yamahara, et al. by substituting the BMPS with the cell aggregate taught by Takahashi, et al. This conclusion of obviousness is based on the ‘substitution rationale’; the use of the cell aggregate comprising dopaminergic neuron progenitor cells in place of the BMPS is a predictable use of prior art elements according to their established functions, leading to the predictable result of cryopreservation of a cell aggregate comprising neural cells. This rationale aligns with the principle of a simple substitution of one known elements for another to obtain predictable results. See MPEP 2143(I)(B).
Therefore, the embodiments of claim 12 are thus rendered obvious. As the modified method of Yamahara, et al. reads on the remaining embodiments on claims 28 and 29, as set forth above, the embodiments of these claims are rendered obvious, as well.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-11, 13-19, and 32 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 5-10, 12-15, 18, and 21-22 of copending Application No. 17/778,194 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other. It is noted for the record the main distinction between the invention of copending Application No. 17/778,194 (hereinafter Application ‘194) and the invention of the instant application is the latter is drawn to a method of freezing a cell aggregate by a process known in the art as slow-freezing, whereas the former is drawn to a method of freezing a cell aggregate by a process known in the art as vitrification.
Regarding claims 1-7, 18-19, 32: Copending claim 1 is drawn to a method for freezing a cell aggregate including neural cells and having a three-dimensional structure, wherein the method comprises soaking the cell aggregate including neural cells in a cryopreservation solution at 0°C to 20°C prior to freezing to prepare a cryopreservation solution-soaked cell aggregate for 15 minutes to 360 minutes; this reads on the identical limitations recited in step (1) of instant claim 1. Copending claim 1 does not teach step (2) of instant claim 1, instead reciting a second step of freezing the cryopreservation solution-soaked cell aggregate in vapor phase of a liquid nitrogen container having a temperature of -150°C or less.
It would have been prima facie obvious to a person having ordinary skill in the art to have modified the method recited in claim 1 of the instant application by using the step recited in step (2) of instant claim 1 instead of the second step recited in copending claim 1. This conclusion of obviousness is based on the ‘substitution rationale’; the use of the slow-freezing method on the instant application in place of the vitrification method of the copending application is a predictable use of prior art elements according to their established functions, leading to the predictable result of freezing a cell aggregate including neural cells. This rationale aligns with the principle of simple substitution of one known element for another to obtain predictable results; see MPEP 2141.
This renders obvious the embodiments of instant claims 1-7, 18-19, and 32.
Regarding claim 8: Copending claim 6 further recites the cell aggregate including neural cells is a cell aggregate including neural cells derived from pluripotent stem cells; this reads on the identical limitation recited in instant claim 8.
Regarding claims 9-11: Copending claim 7 further recites the cell aggregate as comprising cells positive for at least one of FOXA2, TH, and NURR1; this reads on the identical limitation recited in instant claim 9. Copending claim 8 further recites the cell aggregate as comprising cells positive for FOXA2 and LMX1A; this reads on the identical limitation recited in instant claim 10. Copending claim 9 further recites the cell aggregate as comprising cells positive for FOXA2, TH, and NURR1; this reads on the identical limitation recited in instant claim 11.
Regarding claim 13: Copending claim 10 further recites wherein the neural cells are dopamine-producing neurons or progenitor cells thereof; this reads on the identical limitation recited in instant claim 13.
Regarding claim 14: Copending claim 13 recites wherein the cell aggregate includes 500 to 150000 cells; this reads on the identical limitation recited in instant claim 14.
Regarding claim 15: Copending claim 14 recites wherein number of cells contained in the cryopreservation solution is 80000 to 5000000 cells/mL; copending claim 12 recites wherein the cell aggregate including neural cells is a cell aggregate having an equivalent spherical diameter of 150 µm to 1000 µm. These copending claims read on the limitations recited in instant claim 15.
Regarding claims 16-17: Copending claim 5 recites wherein size of the container containing the cell aggregate and the cryopreservation solution is 0.5 to 5 mL; this renders obvious the limitations recited in instant claims 16 and 17.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 12 and 28-29 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 5-10, 12-15, 18, and 21-22 of copending Application No. 17/778,194 (reference application), in view of Milber, et al. (Neurology. 2012), further in view of Mansour, et al. (Nat Biotechnol. 2018), as evidenced by Kim, et al. (PLoS One. 2013).
Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claims 12, 28-29: It is set forth above copending Application No. 17/778,194 renders obvious the method of claim 1. It does not teach the cell aggregate as comprising cells positive for FOXA2 and LMX1A in an amount of 40% or more of the total cells and cells positive for TH and NURR1 in an amount of 40% or less of the total cells, as required by the limitations of the instant claims.
Milber, et al. teaches TH immunoreactivity and neuron densities in the substantia nigra of normal, incidental Lewy body disease, and Parkinson disease cases (pg. 2308; col. 1, par. 2). Briefly, the Honolulu-Asia Aging Study (HAAS) is a longitudinal prospective study of risk factors for the development of PD and dementia in a large cohort of Japanese-American men born between 1900 and 1919; the HAAS provided 10-mm-thick formalin-fixed, paraffin-embedded sections from 325 subjects who had sections available from sufficient anatomical regions to allow Braak LB staging (“Methods: Subjects and materials”; pg. 2308). Midbrain sections were immunostained for TH at the level of the red nucleus and the exit of the third nerve, with all experiments including positive control sections to confirm uniform staining; no cases were devoid of TH-positive (THP) neurons (“Methods: Neuron counting”; pg. 2308). A dopaminergic neuron was only counted if it contained black granular neuromelanin pigment and a distinct nucleus and nucleolus, as previous studies have confirmed neuromelanin’s validity in identifying dopaminergic neurons; the density of TH-negative (THN) and THP neurons (neurons/ mm2) as well as the THN percentage of total dopaminergic neuron count (THN%) were calculated (“Methods: Neuron counting”; pg. 2308). A summary of the substantia nigra mean pathologic results discloses THN% of 1.01 ± 0.22 in normal samples, 6.53 ± 0.74 in incidental Lewy body disease (ILBD) samples, and 3.10 ± 0.73 in Parkinson disease (PD) samples (Table 1; pg. 2310).
As evidenced by Kim, et al. the gene encoding TH is a well-known target of Nurr1 (pg. 71469; col. 2, par. 2); Nurr1 transactivates the hTH promoter in dopaminergic (DA) neurons, suggesting a role as activator in the development of mDA neurons (pg. 71469; col. 1, par. 2). Thus, the substantia nigra midbrain sections taught by Milber, et al., wherein the TH-negative percentage of total dopaminergic neurons is less than 7% of total dopaminergic neurons across all sample types, reads on the wherein the cell aggregate including neural cells comprises cells positive for FOXA2 and LMX1A in an amount of 40% or more of the total cells and cells positive for TH and NURR1 in an amount of 40% or less of the total cells limitation recited in claim 12.
It would have been prima facie obvious to a person having ordinary skill in the art to recapitulate the cell population seen in the substantia nigra midbrain sections taught by Milber, et al. for use in the method of copending Application No. 17/778,194. This conclusion of obviousness is based on the ‘teaching, suggestion, or motivation rationale’; one would have been motivated to do so in order to further investigate the role of TH immunoreactivity and neuron densities in the substantia nigra in incidental Lewy body disease, and Parkinson disease. Methods for modeling a specific cell population (e.g., cells expressing neuronal markers LMX1A and FOXA2) are well known in the art, such as forward and reverse transfection; in this regard, one skilled in the art would have more than a reasonable expectation of success. Further, Mansour teaches hPSC-derived brain organoids readily integrated into the mouse brain, exhibiting neuronal differentiation patterns, a functional vasculature system, and unprecedented axonal outgrowth to generate mature and functional human brain tissues in vivo (pg. 432; col. 2, par. 1); thus, one skilled in the art would have a reasonable expectation of success in using the cell aggregate for transplantation into a mouse model.
Additionally, the method of copending Application No. 17/778,194 reads on the remaining limitations recited in claims 28 and 29, as set forth above.
Therefore, the embodiments of claims 12, 28, and 29 are thus rendered obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GINA PRONZATI whose telephone number is (571)270-5725. The examiner can normally be reached Monday - Friday 9:00a - 5:00p ET.
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/GINA PRONZATI/Examiner, Art Unit 1633
/ALLISON M FOX/Primary Examiner, Art Unit 1633
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