DETAILED ACTION
Claim Status
As of the Non-Final Office Action mailed 4/8/2026, claims 1-5, 7, 14, 16-17, 26, 33, 42, 45-46, 51-52, 54, and 56 were pending and claims 33 and 51 were withdrawn for being drawn to non-elected inventions.
In Applicant's Response filed on 7/8/2026, claims 1 and 45 were amended and claim 56 was canceled.
As such, claims 1-5, 7, 14, 16-17, 26, 33, 42, 45-46, 51-52, and 54 are pending and claims 1-5, 7, 14, 16-17, 26, 42, 45-46, 52, and 54 have been examined herein.
Withdrawn Objections/Rejections
The objections and rejections presented herein represent the full set of objections and rejections currently pending in this application. Any objections or rejections not specifically reiterated are hereby withdrawn.
Applicant’s arguments with respect to these claim(s) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claim(s) 1-5, 7, 14, 16, and 45-46 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al (US9,938,498 B2, 5/7/2013; published 4/8/2018) in view of Lee et al (TWI439275B, 12/31/2010; published 6/1/2014; referenced herein as “J Lee”).
Regarding claim 1, 5, 7, and 45, Lee teaches a method for inducing and expanding natural killer (NK) cells derived from peripheral blood mononuclear cells, wherein the method comprises co-culturing irradiated Jurkat cells and irradiated Epstein-Barr virus transformed lymphocyte continuous line (EBV-LCL) cells as feeder cells with peripheral blood mononuclear cells in the presence of cytokines (see claim 1 of Lee).
Lee continues to teach that the PBMCs are obtained from a normal person or a cancer patient (See claim 2 of Lee).
Lee continues to teach that the cytokines are one or more selected from IL-2, IL-15, IL-21, Flt3-L, SCF, IL-7, IL-12, and IL18 (see claim 4 of Lee).
Lee continues to teach that the method further comprises performing a subsequent culture to maintain the NK cells after inducement and proliferation of the NK cells derived from the peripheral blood mononuclear cells, wherein irradiated Jurkat cells, irradiated EBV-LCL cells and cytokines are added to the subsequent culture on the 1st to the 15th day of the subsequent culture (see claim 5 of Lee).
Regarding claim 14, ad 16, Lee teaches that the cytokine may be used at a concentration of 50 U/mL to 1000 U/mL (col 5, lines 22-31).
Regarding claim 4, Lee teaches that the PBMCs, Jurkat cells, and EBV-LCL cells may be co-cultured for 7 to 30 days (col 5, lines 42-47).
Regarding claim 46, Lee teaches that the irradiated Jurkat cell line, the irradiated EBV-LCL cell line, and the previously separated mononuclear cells were cultured at a ratio of 1:0.5:0.5 (example 1 of Lee).
Regarding claim 52, Lee teaches that the
Lee does not teach:
Isolating CD56+ cells from the blood sample,
Freezing the co-cultured cells,
Thawing the frozen cells before the culture in IL-21.
Regarding i)-iii), J Lee teaches an invitro proliferation method of NK cells comprising (a) obtaining a peripheral blood sample of a human subject; (b) obtaining a peripheral blood mononuclear cell (PBMCs) from the peripheral blood sample; (c) obtaining the peripheral blood Mononuclear cells (PBMCs) are suspended in a mixture and stored frozen; wherein the composition of the mixture is 90% of one of the human individual autologous serum and 10% dimethylammonium (DMSO); (d) The peripheral blood mononuclear cells (PBMCs) are thawed; and (e) the peripheral blood is cultured in vitro using a stem cell culture solution containing the human serum and a recombinant human interleukin.
J Lee continues to teach that the cytotoxic activity of the natural killer cells proliferated by the step (e) reaches at least 65%.
Regarding claim 2-3, J Lee teaches placing the mixture containing the peripheral blood mononuclear cells (PBMCs) between minus 50 degrees Celsius and minus 100 degrees Celsius from 20 minutes to 48 hours.
Therefore, it would have been obvious prior to the effective filing date of the instantly claimed invention to culture NK cells in IL-21 twice as taught by Lee, where the cells are frozen and thawed before Il-21 culture as taught by J Lee, to arrive at the instantly claimed invention. J Lee shows that NK cells can be successfully cryopreserved prior to culture with IL-21. One of ordinary skill would recognize that the improvements taught in J Lee would improve similar NK culture methods in a similar way.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al in view of J Lee et al as applied to claims 1-5, 7, 14, 16, and 45-46, and further in view of Lim et al (Cytotherapy. 2014 Oct;16(10):1419-30).
The teachings of Lee and J Lee in combination were recited in the above 35 U.S.C. 103 rejection as applied to claim 1 of which claim 17 ultimately depend.
Neither Lee nor J Lee teach that IL-21 is added more than once during the first and/or second period.
However, Lim teaches effect of exposure to interleukin-21 at various time points on human natural killer cell culture (title). IL-2/IL-15–activated NK cells were additionally treated with IL-21 according to the following schedules; (i) control (without IL-21); (ii) first week (day 0 to day 7); (iii) intermittent (the first 3 days of each week for 7 weeks); (iv) after 1 week (day 8 to day 14); and (v) continuous (day 0 to day 49) (see Methods). The purity of NK cells among the five groups did not differ significantly from days 0 to 14 but did differ significantly during long-term culture. In contrast with the “after 1 week” and continuous groups, the NK cell purity of the control, “first week” and intermittent groups was maintained at 82.5–91.0% during 7 weeks of culture (Results para 2). The direct cytotoxic effects of expanded NK cells in the five groups against K562 cells and the breast cancer cell lines SKBR3 and MDA-MB-231 were examined (Cytotoxic effects of expanded NK cells, para 1). Although no significant differences were found in the cytotoxicity of expanded NK cells against K562 and SKBR3 among the five groups, the cytotoxicity against MDA-MB231 in the “after 1 week” and continuous groups was significantly increased compared with control cells (Figure 6A).
Of note, Lim teaches that, to determine whether additional treatment with IL-21 would enhance the anti-tumor effect of long-term–expanded NK cells, they evaluated the cytotoxicity of expanded NK cells on days 28 and 35 in the “first week” group after an additional 2-day IL-21 treatment on days 26 and 33, respectively (Additional IL-21 treatment, para 1). There was a significant increase in cytotoxicity on day 28 of NK cells that received the additional IL-21 treatment against SKBR3 and MDA-MB-231 cells compared with “first week” NK cells without additional IL-21 treatment (P < 0.05) (Figure 6B). Cytotoxicity on day 35 of expanded NK cells that received the additional IL-21 treatment against K562, SKBR3 and MDA-MB-231 was slightly higher than in the “first week” NK cells without additional IL-21 treatment, albeit not significantly so (Figure 6C).
Therefore, it would have been obvious prior to the effective filing date of the instantly claimed invention to expand NK cells in IL-21 as taught by Lee and J Lee in combination, where IL-21 is administered multiple times during a culture period as taught by Lim, to arrive at the instantly claimed invention. As Lim shows that NK cells can have additional IL-21 added to the culture during a culture period, one of ordinary skill would have been motivated to modify the method of Lee and J Lee in combination to include additional IL-21 with a reasonable expectation of advantageously increasing cytotoxicity of the NK cells as taught by the prior art.
Claim(s) 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al (TWI439275B, 12/31/2010; published 6/1/2014; referenced herein as “J Lee”) in view of Lee et al (US9,938,498 B2, 5/7/2013; published 4/8/2018).
Regarding claim 26, J Lee teaches an invitro proliferation method of NK cells comprising (a) obtaining a peripheral blood sample of a human subject; (b) obtaining a peripheral blood mononuclear cell (PBMCs) from the peripheral blood sample; (c) obtaining the peripheral blood Mononuclear cells (PBMCs) are suspended in a mixture and stored frozen; wherein the composition of the mixture is 90% of one of the human individual autologous serum and 10% dimethylammonium (DMSO); (d) The peripheral blood mononuclear cells (PBMCs) are thawed; and (e) the peripheral blood is cultured in vitro using a stem cell culture solution containing the human serum and a recombinant human interleukin.
J Lee does not teach that the NK cells cultured in the presence of IL-21 are also co-cultured with feeder cells.
However, Lee teaches a method for inducing and expanding natural killer (NK) cells derived from peripheral blood mononuclear cells, wherein the method comprises co-culturing irradiated Jurkat cells and irradiated Epstein-Barr virus transformed lymphocyte continuous line (EBV-LCL) cells as feeder cells with peripheral blood mononuclear cells in the presence of cytokines (see claim 1 of Lee).
Lee continues to teach that the lifetime of the activated NK cells may be extended, and a larger amount of the NK cells may be obtained by adding the irradiated Jurkat cells, the irradiated EBV-LCL and the cytokines on day 1 to day 15 of the culture after the proliferation of the NK cells (col 6 lines 23-27).
Therefore, it would have been obvious, prior to the effective filing date of the instantly claimed invention, to culture NK cells in the presence of IL-21 after thawing as taught by J Lee, where the NK cells are also co-cultured with feeder cells as taught by Lee, to arrive at the instantly claimed invention. Lee shows that NK cells can be successfully co-cultured with feeder cells such as irradiated Jurkat cells and irradiated EBV-LCL cells. One of ordinary skill would have been motivated to modify the method of J Lee to include co-culturing with feeder cells as taught by Lee with a reasonable expectation of advantageously extending the lifetime of the activated NK cells as taught by the prior art.
Claim(s) 42 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al (US9,938,498 B2, 5/7/2013; published 4/8/2018) in view of Li et al (Immunobiology; July 2015; 220(7):876-88; published 31 Jan 2015; of record).
Regarding claim 42, Lee teaches a method for inducing and expanding natural killer (NK) cells derived from peripheral blood mononuclear cells, wherein the method comprises co-culturing irradiated Jurkat cells and irradiated Epstein-Barr virus transformed lymphocyte continuous line (EBV-LCL) cells as feeder cells with peripheral blood mononuclear cells in the presence of cytokines (see claim 1 of Lee).
Lee continues to teach that the PBMCs are obtained from a normal person or a cancer patient (See claim 2 of Lee).
Lee continues to teach that the cytokines are one or more selected from IL-2, IL-15, IL-21, Flt3-L, SCF, IL-7, IL-12, and IL18 (see claim 4 of Lee).
Lee does not teach that the cells display increased cytotoxicity compared to cells not cultured in the presence of IL-21.
However, Li teaches the multiple effects of IL-21 on human NK cells in ex vivo expansion (title). IL-21 is a common cytokine that is important in NK cell activation, maturation, and proliferation (abstract). The cytotoxicity, expression of cytokines, and functional receptors of the expanded NK cells after IL-21 treatment were analyzed (p. 877 col 1, para 2). PBMCs stimulated by HKD cells in the presence of 100 IU of IL-2; after 3 weeks of expansion, the percentage of NK cells among PBMCs over 90% (Huang et al 2008). Normally expanded NK cells (after 3 weeks of expansion) were treated with 50 ng/mL IL-21 for 72 h to assay the effect of IL-21 on NK cells (p. 877, “NK cells preparation”). Although the OD values decreased in the IL-21 treated groups, the cytotoxicity of the expanded cells unexpectedly increased. The cytotoxicity of the expanded cells was 97.25% 95.16%, and 90.96% respectively for the 1 ng/mL, 10 ng/mL, and 50 ng/mL groups compared with 86.60% for the control group (p.879-80). The reference also states that stimulation with IL-21 strongly induced proliferation of CD56bright NK cells from PBMCs and increased cytotoxicity against K562 target cells (p. 886, para 1).
Therefore, it would have been obvious prior to the effective filing date of the instantly claimed invention to culture NK cells in the presence of IL-21 twice as taught by Lee, where IL-21 improves cytotoxicity of the cells, to arrive at the instantly claimed invention. Li shows that IL-21 is known to improve cytotoxicity of NK cells. One of ordinary skill in the art would reasonably expect that applying a known technique (culturing NK cells in the presence of IL-21) would improve similar methods in the same way (increasing cytotoxicity of NK cells) as taught by the prior art.
Claim(s) 52 and 54 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al in view of J Lee et al as applied to claims 1-5, 7, 14, 16, and 45-46, and further in view of Min et al (Immune Netw. 2018 Aug 21;18(4):e31) and Stone et al (Bioprocess Intnl. Epub 14 Feb 2015; of record).
The teachings of Lee and J Lee in combination were recited in the above 35 U.S.C. 103 rejection as applied to claim 1 of which claim 52 and 54 ultimately depend.
Regarding claim 52, J Lee teaches that the cells are frozen in 10% dimethylammonium (DMSO) (see claims of J Lee).
Regarding claim 54, Lee teaches that the percentage of the NK cell phenotypes, CD56+ and CD3 cells, increased to 70% or more when the mononuclear cells were co-cultured with the Jurkat cells and the EBV-LCL cells after the 14-day culture (FIG. 4A).
Neither Lee nor J Lee teach:
The cryopreservation medium contains IL-2, and
Contains either 90-95% FBS or 80-95% Hartman solution and 1-10% human serum albumin.
Regarding i), Min teaches optimization of large-scale expansion and cryopreservation of NK cells (title).
Min continues to teach that cryopreservation of expanded NK cells has been shown to reduce the expression of NKG2D and TRAIL and cytotoxicity, which could be reversed by IL-2 (Introduction, para 4).
Min continues to teach that ten million CD3-depleted cells were seeded in 30 ml of CellGro SCGM medium with 1% autologous plasma, irradiated (2,000 rad) autologous PBMCs (5×107 cells), 500 IU/ml IL-2, and 10 ng/ml anti-CD3 monoclonal antibody OKT3 in an A-350N culture bag. Cultured NK cells were restimulated on day 7 of the culture by adding 5×107 feeder cells per 1×107 NK cells in 60 ml of CellGro SCGM containing 1% plasma, and then transferred into an A-1000NL culture bag. The A-1000NL culture bag enables co-culture of 4–8×107 cultured NK cells and 2–4×108 feeder cells. OKT (10 ng/ml) and IL-2 (500 IU/ml) were added. Fresh medium with IL-2 (500 IU/ml) was added to the NK cell culture every 2 days to maintain a concentration of 0.5–2×106 cells/ml for 21 days. Harvested cells were suspended in freezing media containing albumin (20%), dextran (40-Dex) (25%) and DMSO (5%) to make 1×108 cells/mL for cell cryopreservation (“NK cell enrichment, expansion, and cryopreservation” para 1).
Regarding ii), Stone teaches maximizing PMBC recovery and viability (title). The reference teaches the quality of peripheral blood mononuclear cells isolated from whole blood has a significant impact on their subsequent analysis (para 1). Maximizing recovery, viability, and functionality of isolate PBMCs is essential to the reliability and consistency of downstream applications, particularly cell therapy manufacturing (same para). PBMCs subjected to cryopreservation were frozen at a rate of -1 ℃/min using a BioCision CoolCell controlled-rate cell freezing container with cryopreservation medium containing 10% DMSO and 90% FBS (Cell Viability Recovery, para 1). Then cells were transferred to a liquid nitrogen freezer for long-term storage. Recovery of viable cells were calculated as a percentage of the precryopreservation viable cell count. PMBC recovery after cryopreservation from sample processed either immediately or 24 hours after phlebotomy also was equivalent (Fig. 2).
Therefore, it would have been obvious prior to the effective filing date of the instantly claimed invention to expand NK cells via culturing as taught by Lee and J Lee in combination, where the cells are cryopreserved in medium containing IL-2 as taught by Min, to arrive at the instantly claimed invention. As Min shows NK cells can be cultured and cryopreserved in the presence of IL-2, one of ordinary skill would have been motivated to modify the method of Lee and J Lee in combination to include freezing in the presence of IL-2 as taught by Min with a reasonable expectation of advantageously reversing reduction of expression of NKG2D and TRAIL and reduction in cytotoxicity as taught by the prior art.
It also would have been obvious prior to the effective filing date of the instantly claimed invention to expand NK cells as taught by Lee, J Lee, and Min in combination, where the cryopreservation medium contains DMSO and FBS as taught by Stone, to arrive at the instantly claimed invention. Stone shows that NK cells can be successfully frozen in at least DMSO and 90% FBS. One of ordinary skill would have been motivated to modify the cryopreservation method of Lee, J Lee, and Min in combination to include 90% FBS as taught by Stone with a reasonable expectation of advantageously having good recovery of NK cells post-thaw as taught by the prior art.
Double Patenting – Maintained/Modified Rejection
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.
Claim 42 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 13-14 of U.S. Patent No. 10,590,385 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims would anticipate the instant claims if they were available as prior art.
Claim 1 of ‘385 recites “A method of expanding natural killer cells in culture, comprising: isolating peripheral blood mononuclear cells (PBMCs) from a blood sample; isolating at least one of CD56+ cells and/or CD3−/CD56+ cells from the PBMCs; and co-culturing the at least one of CD56+ cells and/or CD3−/CD56+ cells with a combination of feeder cells in the presence of at least two cytokines; wherein the combination of feeder cells comprises irradiated Jurkat cells and irradiated Epstein-Barr virus transformed lymphocyte continuous line (EBV-LCL) cells, wherein the at least two cytokines comprise IL-2 and IL-21” which would anticipate “A composition comprising: an effective amount of CD56+ cells derived from peripheral blood mononuclear cells (PBMCs) from the patient, wherein the CD56+ cells are prepared by the method of claim 1” as in instant claim 42 if it were available as prior art.
Claim 13 of ‘385 recites “A composition made by the method of claim 1” which would anticipate “A composition comprising: an effective amount of CD56+ cells derived from peripheral blood mononuclear cells (PBMCs) from the patient, wherein the CD56+ cells are prepared by the method of claim 1” as in instant claim if it were available as prior art.
Claim 14 of ‘385 recites “A method of expanding natural killer cells in culture, comprising: isolating peripheral blood mononuclear cells (PBMCs) from a blood sample; isolating at least one of CD56+ cells and/or CD3−/CD56+ cells from the PBMCs; and co-culturing the at least one of CD56+ cells and/or CD3−/CD56+ cells with a combination of feeder cells in the presence of at least two cytokines; wherein the combination of feeder cells comprises irradiated Jurkat cells and irradiated Epstein-Barr virus transformed lymphocyte continuous line (EBV-LCL) cells, wherein the at least two cytokines comprise IL-2 and IL-21, and wherein both the feeder cells and the cytokines are supplemented at intervals throughout the expansion in culture” which would anticipate which would anticipate “A composition comprising: an effective amount of CD56+ cells derived from peripheral blood mononuclear cells (PBMCs) from the patient, wherein the CD56+ cells are prepared by the method of claim 1” as in instant claim 42 if it were available as prior art.
Response to Arguments
Applicant’s arguments have been fully considered but are not persuasive.
On p. 15-16 of Remarks, Applicant argues that the composition of claim 42 is distinct from the ‘385 patent because the claims of the ‘385 patent do not recite NK cells are not cryopreserved. Applicant argus that NK cells cultured in the presence of IL-21 without cryopreservation have increased cytotoxicity compared to cells expanded according to instant claim 1.
While Applicant’s argument has been considered, it is not persuasive. Claim 42 is a product-by-process claim. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted). Instant claim 42 recites, inter alia, “wherein the cells display increased cytotoxicity compared to cells not cultured in the presence of IL-21.” Both the instant claims and the claims of ‘385 recite culturing in the presence of IL-21. The resulting increased cytotoxicity is from the culturing in the presence of IL-21 not cryopreservation. Thus, applicant’s argument is not persuasive.
Claim 1, 4-5, 7, 14, 16, 26, 42-43, 45-46, and 54 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5-7, 9, 11, 14, and 16-18 of U.S. Patent No. 10,590,385 B2 (‘385 patent) in view of J Lee et al (as above).
Claim 1 of ‘385 recites “A method of expanding natural killer cells in culture, comprising: isolating peripheral blood mononuclear cells (PBMCs) from a blood sample; isolating at least one of CD56+ cells and/or CD3−/CD56+ cells from the PBMCs; and co-culturing the at least one of CD56+ cells and/or CD3−/CD56+ cells with a combination of feeder cells in the presence of at least two cytokines; wherein the combination of feeder cells comprises irradiated Jurkat cells and irradiated Epstein-Barr virus transformed lymphocyte continuous line (EBV-LCL) cells, wherein the at least two cytokines comprise IL-2 and IL-21.” Claim 14 of 385 recites “A method of expanding natural killer cells in culture, comprising: isolating peripheral blood mononuclear cells (PBMCs) from a blood sample; isolating at least one of CD56+ cells and/or CD3−/CD56+ cells from the PBMCs; and co-culturing the at least one of CD56+ cells and/or CD3−/CD56+ cells with a combination of feeder cells in the presence of at least two cytokines; wherein the combination of feeder cells comprises irradiated Jurkat cells and irradiated Epstein-Barr virus transformed lymphocyte continuous line (EBV-LCL) cells, wherein the at least two cytokines comprise IL-2 and IL-21, and wherein both the feeder cells and the cytokines are supplemented at intervals throughout the expansion in culture.” This reads on instant claims 1 in-part, 5, 7, 26 in-part, 42, 43, and 45 in-part.
Claims 5 and 16 of ‘385 recites “wherein IL-21 is added at a concentration of 10-100 ng/mL” which reads on instant claim 14 and 16.
Claims 7 and 18 of ‘385 recites “wherein the co-culturing comprises co-culturing for 1-50 days” which reads on instant claim(s) 4.
Claim 9 of ‘385 recites “wherein IL-21 is added more than once during Day 0-6 of the second period.” Claim 11 of 385 recites “wherein IL-21 is added more than once during the first six days of every fourteen-day cycle during the second period.” These read on instant claim 17.
Claim 17 of 385 recites “wherein IL-21 is added once or more during each of the following periods: Day 0-6; Day 14-20; and Day 28-34” (i.e., addition of IL-21 during different culture periods) which reads on instant claim 1 in-part, and 45 in-part.
The ‘385 patent does not recite freezing and thawing the NK cells before second co-culturing.
J Lee teaches an invitro proliferation method of NK cells comprising (a) obtaining a peripheral blood sample of a human subject; (b) obtaining a peripheral blood mononuclear cell (PBMCs) from the peripheral blood sample; (c) obtaining the peripheral blood Mononuclear cells (PBMCs) are suspended in a mixture and stored frozen; wherein the composition of the mixture is 90% of one of the human individual autologous serum and 10% dimethylammonium (DMSO); (d) The peripheral blood mononuclear cells (PBMCs) are thawed; and (e) the peripheral blood is cultured in vitro using a stem cell culture solution containing the human serum and a recombinant human interleukin.
J Lee continues to teach that the cytotoxic activity of the natural killer cells proliferated by the step (e) reaches at least 65%.
J Lee teaches placing the mixture containing the peripheral blood mononuclear cells (PBMCs) between minus 50 degrees Celsius and minus 100 degrees Celsius from 20 minutes to 48 hours.
Thus, the combination of ‘385 and J Lee et al would render the instant claims prima facie obvious if the ‘385 patent was available as prior art.
Response to Arguments
Applicant’s arguments have been fully considered but are not persuasive.
Claims 1, 3-5, 7, 14, 16-17, 26, and 45 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4, and 5 of U.S. Patent No. 9,938,498 B2 (‘498 patent) in view of J Lee et al.
Claim 1 of ‘498 recites “A method for inducing and expanding natural killer (NK) cells derived from peripheral blood mononuclear cells, wherein the method comprises co-culturing irradiated Jurkat cells and irradiated Epstein-Barr virus transformed lymphocyte continuous line (EBV-LCL) cells as feeder cells with peripheral blood mononuclear cells in the presence of cytokines” and claim 2 of ‘498 recites “wherein the peripheral blood mononuclear cells are obtained from a normal person or a cancer patient”, and claim 4 of ‘498 recites “” which reads on “method of expanding natural killer cells in culture, comprising: isolating CD56+ cells from a blood sample; co-culturing the isolated CD56+ cells in the presence of IL-21 for a first period” as in instant claim 1 in-part, “wherein the isolated CD56+ cells and/or the thawed CD56+ cells are co-cultured with one or more irradiated feeder cells in the presence of IL-21” as in instant claim 5, “wherein the one or more feeder cells are one or more selected from a group consisting of irradiated Jurkat cells, irradiated Epstein-Barr virus transformed lymphocyte continuous line (LB V-LCL) cells” as in instant claim 7, “method of increasing cytotoxicity of natural killer cells, comprising: providing said natural killer cells; . . . ; and co-culturing the . . . natural killer cells with one or more feeder cells in the presence of IL-21” as in instant claim 26 in-part.
Claim 5 of ‘498 recites “wherein the method further comprises performing a subsequent culture to maintain the NK cells after inducement and proliferation of the NK cells derived from the peripheral blood mononuclear cells, wherein irradiated Jurkat cells, irradiated EBV-LCL cells and cytokines are added to the subsequent culture on the 1st to the 15th day of the subsequent culture” which reads on “co-culturing the thawed CD56+ cells in the presence . . . of IL-21 for a second period” as in instant claim 1 in-part, “wherein IL-21 is added more than once during the first and/or second period.” as in instant claim 17.
‘498 does not recite freezing and thawing the cells.
J Lee teaches an invitro proliferation method of NK cells comprising (a) obtaining a peripheral blood sample of a human subject; (b) obtaining a peripheral blood mononuclear cell (PBMCs) from the peripheral blood sample; (c) obtaining the peripheral blood Mononuclear cells (PBMCs) are suspended in a mixture and stored frozen; wherein the composition of the mixture is 90% of one of the human individual autologous serum and 10% dimethylammonium (DMSO); (d) The peripheral blood mononuclear cells (PBMCs) are thawed; and (e) the peripheral blood is cultured in vitro using a stem cell culture solution containing the human serum and a recombinant human interleukin.
J Lee continues to teach that the cytotoxic activity of the natural killer cells proliferated by the step (e) reaches at least 65%.
J Lee teaches placing the mixture containing the peripheral blood mononuclear cells (PBMCs) between minus 50 degrees Celsius and minus 100 degrees Celsius from 20 minutes to 48 hours.
Thus, the combination of ‘498 and J Lee et al renders the instant claims prima facie obvious.
Claims 1, 3-5, 7, 14, 16-17, 26, and 45 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 6-7, and 12 of U.S. Patent No. 12,098,388 B2 (‘388 patent) in view of J Lee et al. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims would obviate the instant claims if they were available as prior art.
Claim 1 of ‘388 recites “method of producing natural killer cells, comprising: co-culturing PBMCs with a combination of feeder cells in the presence of IL-2 and IL-21” which would read on “” as in instant claim
Claim 3 of ‘388 recites “wherein the combination of feeder cells comprises irradiated Jurkat cells and irradiated Epstein-Barr virus transformed lymphocyte continuous line (EBV-LCL) cells.” which would read on “method of expanding natural killer cells in culture, comprising: isolating CD56+ cells from a blood sample; co-culturing the isolated CD56+ cells in the presence of IL-21 for a first period” as in instant claim 1 in-part, “wherein the isolated CD56+ cells and/or the thawed CD56+ cells are co-cultured with one or more irradiated feeder cells in the presence of IL-21” as in instant claim 5, “wherein the one or more feeder cells are one or more selected from a group consisting of irradiated Jurkat cells, irradiated Epstein-Barr virus transformed lymphocyte continuous line (LB V-LCL) cells” as in instant claim 7, “method of increasing cytotoxicity of natural killer cells, comprising: providing said natural killer cells; . . . ; and co-culturing the thawed natural killer cells with one or more feeder cells in the presence of IL-21” as in instant claim 26 in-part.
Claim 6-7 of ‘388 recites “wherein the co-culturing comprises co-culturing for 1-50 days”, “co-culturing the PBMCs cells with a combination of feeder cells, in the presence of IL-2 for a first period; and subsequently co-culturing the PBMCs with the combination of feeder cells, in the presence of IL-21 for a second period”, which would read on “wherein the isolated CD56+ cells [[is]]are co-cultured for between 13-16 days” as in instant claim 4 and “wherein IL-21 is added more than once during the first and/or second period” as in instant claim 17.
Claim 12 of ‘388 recites “wherein . . . IL-21 is present at a concentration of 10-100 ng/ml.” which would read on “wherein IL-21 is added at a concentration of 10-100 ng/mL during the first and/or second period” as in instant claim 14 and “wherein IL-21 is added at a concentration of 30-70 ng/mL during the first and/or second period.” as in instant claim 16.
Claim 18 of ‘388 recites “method of expanding human natural killer cells in culture, comprising: isolating at least one of human CD56+ cells and/or human CD3−/CD56+ cells from the human PBMCs; and co-culturing the at least one of human CD56+ cells and/or human CD3−/CD56+ cells with a combination of human feeder cells in the presence of at least two human cytokines; wherein the combination of feeder cells comprises irradiated Jurkat cells and irradiated Epstein-Barr virus transformed lymphocyte continuous line (EBV-LCL) cells, wherein the at least two cytokines comprise IL-2 and IL-21” which reads on “” as in instant claim 1 and 26 in-part
‘498 does not recite freezing and thawing the cells.
However, J Lee teaches an invitro proliferation method of NK cells comprising (a) obtaining a peripheral blood sample of a human subject; (b) obtaining a peripheral blood mononuclear cell (PBMCs) from the peripheral blood sample; (c) obtaining the peripheral blood Mononuclear cells (PBMCs) are suspended in a mixture and stored frozen; wherein the composition of the mixture is 90% of one of the human individual autologous serum and 10% dimethylammonium (DMSO); (d) The peripheral blood mononuclear cells (PBMCs) are thawed; and (e) the peripheral blood is cultured in vitro using a stem cell culture solution containing the human serum and a recombinant human interleukin.
J Lee continues to teach that the cytotoxic activity of the natural killer cells proliferated by the step (e) reaches at least 65%.
J Lee teaches placing the mixture containing the peripheral blood mononuclear cells (PBMCs) between minus 50 degrees Celsius and minus 100 degrees Celsius from 20 minutes to 48 hours.
Thus, the combination of ‘388 and J Lee et al renders the instant claims prima facie obvious if ‘388 was available as prior art.
Response to arguments
Applicant’s arguments with respect to double patenting rejections in view of Granzin et al (of record) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
No claim is allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/G.R./Examiner, Art Unit 1632
/MARCIA S NOBLE/Primary Examiner, Art Unit 1632
