DETAILED ACTION
Claim Status
As of the Non-Final Office Action mailed 10/21/2025, claims 1-5, 7, 14, 16-17, 26, 33, 42, 45-46, 51-52, 54, and 56 were pending and claims 33 and 51 were withdrawn for being drawn to nonelected invention.
In Applicant's Response filed on 1/20/2026, claims 4, 42, and 45 were amended and claims 43 were canceled.
As such, claims 1-5, 7, 14, 16-17, 26, 33, 42, 45-46, 51-52, 54, and 56 are pending and claims 1-5, 7, 14, 16-17, 26, 42, 45-46, 52, 54, and 56 have been examined herein.
THIS ACTION IS NON-FINAL.
Withdrawn Objections/Rejections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 Any objections or rejections not specifically reiterated are hereby withdrawn.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 claim(s) 1-5, 7, 14, 16-17, 26, 42, 45-46, 52, 54, and 56 have been considered but are moot because the new ground of rejection does not rely on the Park, Karnieli, and Hariri references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 45-46 and 56 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.
Claim 45 recites “A method of expanding natural killer cells . . . comprising, providing PMBCs comprising natural killer cells, co-culturing the PMBCs . . .” PMBCs are a heterogenous population of blood cells including NK cells, macrophages, dendritic cells, monocytes, lymphocytes, etc. While Applicant amended the claim to state that the PMBCs comprise NK cells, the PMBCs still encompass a broader population of cells than those described in the preamble (i.e., NK cells plus T cells, etc.). Thus, there is no nexus between the objective of the claim (expanding natural killer cells only). Thus, the claim is indefinite. Claim 46 is included in this rejection for being dependent on indefinite claim 45 and for not clarifying the issue of claim 45.
Claim 56 contains the trademark/trade name CryoStor. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe cell cryopreservation media and, accordingly, the identification/description is indefinite.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
Claim(s) 1, 3-5, 7, 14, 16-17, 26, and 45-46 is/are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Granzin et al (US20180245044A1, 8/31/2016; published 8/30/2018).
Granzin teaches a method for in-vitro culturing and expanding natural killer cells comprising a) adding an effective concentration of interleukin-21 (IL-21) at the beginning of the culturing process to said medium b) adding repeatedly an effective concentration of interleukin-2 (IL-2) and/or interleukin-15 (IL-15) to said medium c) adding repeatedly feeder cells or membrane particles thereof to said medium, wherein said feeder cells are B cell derived which are EBV immortalized; and wherein said expansion of NK cells in said cell culture medium is maintained for at least 3 weeks (see claim 1 of Granzin) (“co-culturing the isolated CD56+ cells in the presence of IL-21 for a first period” as in instant claim 1). The effective concentration of IL-21 in the culture medium is between 0.1 and 1000 ng/mL (see claim 2 of Granzin) (“wherein IL-21 is added at a concentration of 10-100 ng/mL during the first or second period” as in instant claim 14; “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). Human peripheral blood mononuclear cells (PBMC) were prepared from buffy coat preparations from human whole blood and NK cells were isolated from PBMC using the NK cell isolation kit (para 98) (“isolating CD56+ cells from a blood sample” as in instant claim 1). Cultivated NK cells are cryopreserved after two weeks (para 94). Cryopreserved NK cells are thawed and further cultivated in said culturing process (i.e., repeat same method after thawing), allowing for NK cell production starting from a cryopreserved cell bank (same para) (“freezing the co-cultured CD56+ cells after the first period; thawing the frozen CD56+ cells; and co-culturing the thawed CD56+ cells in the presence or absence of IL-21 for a second period” as in instant claim 1 in-part; “further comprising storing the frozen CD56+ cells for more than a day before thawing” as in instant claim 3; (“method of increasing cytotoxicity of natural killer cells, comprising: providing said natural killer cells; freezing said natural killer cells; thawing the frozen 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; “method of expanding natural killer cells in culture, comprising: providing PBMCs comprising natural killer cells; co-culturing the PBMCs in the presence of IL-21 for a first period; freezing the co-cultured PBMCs after the first period; thawing the frozen PBMCs; and co-culturing the thawed PBMCs in the presence of IL-21 for a second period.” as in instant claim 45). NK cells are cultivated in said culturing process for 13 days (para 93) (“wherein the isolated CD56+ cells are co-cultured for between 13-16 days before freezing” as in instant claim 4). The adding of an effective concentration of interleukin-21 (IL-21) to a cell culture medium suitable for expanding NK cells at the beginning of the cultivation process of the NK cells in combination of the presence of feeder cells which are B cell derived and EBV transformed such as Epstein-Barr virus-transformed lymphoblastoid cell lines (EBV-LCL) and the repeated addition of fresh feeder cells which are B cell derived and EBV transformed such as EBV-LCL during the whole duration of cultivation of NK cells, result in a very high number of expanded NK cells (para 10) (“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). Preferentially, the effective concentration of IL-21 is added once to the cell culture medium only. Alternatively, the effective concentration of IL-21 is added repeatedly, e.g. twice or more frequently, to said cell culture medium but within the first three days of the cultivation process (para 61) (“wherein IL-21 is added more than once during the first period” as in instant claim 17).
In the alternative, it would have been prima facie obvious to one of ordinary skill in the art at the time of filing to use the method of Granzin with a reasonable expectation of successfully producing expanded NK cells using IL-21. One of ordinary skill would have been motivated to do so because Granzin teaches that NK cells can be expanded in IL-21 in the presence of feeder cells.
Regarding claim 46, Granzin does not explicitly teach that the PMBCs and feeder cells are in a ratio of 1:0.5:0.5. However, Granzin does teach that the PBMC ratio to feeder cells can be between 1:100 to 1:1. The amount of PMBC: feeder cells would be a matter of routine optimization using standard laboratory techniques available at the time of filing, absent evidence to the contrary. Furthermore, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)."
Accordingly, the claimed invention was anticipated by, or in the alternative, rendered prima facie obvious by the teachings of Granzin.
Claim Rejections - 35 USC § 103
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Granzin et al as applied to claims 1, 3-5, 7, 14, 16-17, 26, and 45-46 above, and further in view of Li et al (Cytotherapy. 2019 Sep;21(9):943-957. doi: 10.1016/j.jcyt.2019.07.004. Epub 2019 Aug 12).
The difference between Granzin and the instant invention is that it does not teach storing the frozen cells at a temperature of lower than -100 °C.
Li teaches preservation of cell-based immunotherapies (such as T lymphocytes and NK cells) for clinical trials (title). Storage conditions is one of the critical factors effecting post-thaw recovery of cellular therapies (“Factors that influence preservation” para 1). The reference teaches that once the freezing process is complete, samples are placed into storage (“Storage conditions” para 1). Cell therapy products may be stored for days, weeks or even decades. Best practices for storage suggest that cell therapy products be stored at temperatures < −150 °C (same para) (“further comprising storing the frozen CD56+ cells at a temperature lower than -100 0C” as in instant claim 2).
Therefore, it would have been obvious prior to the effective filing date of the instantly claimed invention to freeze cultured NK cells as taught by Granzin, where the cells are stored at less than -100 °C as taught by Li, to arrive at the instantly claimed invention. Li states that storing cryopreserved cells at < −150 °C is best practices. One of ordinary skill would have been motivated to store the frozen NK cells as taught by Granzin at a temperature less than −100 °C as taught by Li with a reasonable expectation of advantageously improving post-thaw recovery of cells as taught by the prior art. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.) (see MPEP 2144.05 (II)(A)). Moreover, it would have been a matter of routine experimentation using standard laboratory techniques available at the time of filing to determine the optimal storage temperature of frozen NK cells with a reasonable expectation of success.
Claim(s) 42 is/are rejected under 35 U.S.C. 103 as being unpatentable over Granzin et al (US20180245044A1, 8/31/2016; published 8/30/2018) in view of Li et al (Immunobiology. 2015 Jul; 220(7):876-88; published 31 Jan 2015).
Granzin teaches a method for in-vitro culturing and expanding natural killer cells comprising a) adding an effective concentration of interleukin-21 (IL-21) at the beginning of the culturing process to said medium b) adding repeatedly an effective concentration of interleukin-2 (IL-2) and/or interleukin-15 (IL-15) to said medium c) adding repeatedly feeder cells or membrane particles thereof to said medium, wherein said feeder cells are B cell derived which are EBV immortalized; and wherein said expansion of NK cells in said cell culture medium is maintained for at least 3 weeks (see claim 1 of Granzin). The effective concentration of IL-21 in the culture medium is between 0.1 and 1000 ng/mL (see claim 2 of Granzin). Human peripheral blood mononuclear cells (PBMC) were prepared from buffy coat preparations from human whole blood and NK cells were isolated from PBMC using the NK cell isolation kit (para 98). Cultivated NK cells are cryopreserved after two weeks (para 94). Cryopreserved NK cells are thawed and further cultivated in said culturing process (i.e., repeat same method after thawing), allowing for NK cell production starting from a cryopreserved cell bank (same para). The teachings of Granzin read on “composition comprising: an effective amount of CD56+ cells derived from peripheral blood mononuclear cells (PBMCs) from a patient, wherein the CD56+ cells are prepared by the method of claim 1” as in instant claim 42.
Granzin does not explicitly teach that the NK 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). The reference teaches that IL-21 is a common -chain 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 were stimulated by HKD cells in the presence of 100 IU 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 unexpected increased. The cytotoxicity of the expanded cells was 97.25 ± 2.09%, 95.16 ± 1.82% and 90.96 ± 1.96% respectively, for the 1 ng/mL, 10 ng/mL and 50 ng/mL groups compared with 86.60 ± 2.99% 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 with IL-21 as taught by Granzin, 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 Granzin et al as applied to claims 1, 3-5, 7, 14, 16-17, 26, and 45-46 above, and further in view of Stone et al (Bioprocess Intnl. Epub 2015 Feb 14) and.
Regarding claim 52, Granzin teaches adding repeatedly an effective concentration of interleukin-2 (IL-2) to said medium (see at least claim 1 of Granzin) (“freezing the co-cultured CD56+ cells comprises freezing the co-cultured CD56+ cells in a composition comprising IL-2” as in instant claim 52 in-part).
Regarding claim 54, Granzin teaches NK cells in a cell culture medium comprising a population of NK cells may be purified NK cells. NK cells can be purified from a sample comprising NK cells and other cells, such as e.g. PMBC or whole blood, by magnetic cell separation methods such as MACS® or flow cytometry methods such as FACS™ (i.e., all the cells would by CD56+; para 36) (“co-cultured CD56+ cells in the composition are at least 90% of a cell population of the composition” as in instant claim 54).
The difference between Granzin and the instant invention is that it does not teach 5-10% DMSO and either (i) 90-95% FBS or (ii) 80-95% Hartmann solution and 1-10% albumin (claim 52 in-part).
Stone teaches maximizing PMBC recovery and viability (title). The reference teaches the quality of peripheral blood mononuclear cells (PBMCs) isolated from whole blood has a significant impact on their subsequent analysis (para 1). Maximizing recovery, viability, and functionality of isolated PBMCs is essential to the reliability and consistency of downstream applications, particularly within cell therapy manufacturing (same para). PBMCs subjected to cryopreservation were frozen at a rate of –1 °C/minute using a BioCision CoolCell controlled-rate cell freezing container with cryopreservation medium containing 10% dimethyl sulfoxide (DMSO) and 90% fetal bovine serum (FBS) (Cell Viability and Recovery, para 1). Then cells were transferred to a liquid nitrogen (LN2) freezer for long-term storage. Recovery of viable cells were calculated as a percentage of the precryopreservation viable cell count. PMBC recovery (percent of precryopreservation viable cell count) after cryopreservation from samples processed either immediately or 24 hours after phlebotomy also was equivalent (Figure 2).
Therefore, it would have been obvious prior to the effective filing date of the instantly claimed invention to culture and freeze NK cells as taught by Granzin, where the cells are frozen in DMSO and FBS as taught by Stone, to arrive at the instantly claimed invention. Stone shows 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 Granzin to include DMSO and FBS with a reasonable expectation of advantageously having good recovery of NK cells post-thaw as taught by the prior art.
Claim(s) 56 is/are rejected under 35 U.S.C. 103 as being unpatentable over Granzin et al as applied to claims 1, 3-5, 7, 14, 16-17, 26, and 45 above, and further in view of Baust et al (Cryopreservation: An emerging paradigm change. Organogenesis. 2009 Jul;5(3):90-6).
The difference between the teachings and the invention as instantly claimed is that Grazin does not teach that the composition further comprises CryoStor solution.
However, Baust teaches changes and improvements in cryopreservation techniques/outcomes (see title, abstract; pg. 93, col 1). The reference teaches that “traditional media fall short in addressing changes in solution pH, free radical production, energy deprivation, etc. (see pg. 93, col 2, paragraph 1). The basal properties of these historical preservation media often do not provide for protection at the cellular level (pg. 93, col 2, paragraph 1). In attempt to address this issue, the cryopreservation sciences have taken lead from the organ preservation and molecular biology arenas combining these knowledge bases to increasing cell survival (pg. 93, col 2, paragraph 1). Media including Viaspan, CryoStor, Unisol, Adesta, Celsior and others, to name a few, when combined with CPAs for have been reported to improve cell survival to varying degrees (pg. 93, col 2, paragraph 1). Improvements have been observed in systems including hepatocytes, cord blood stem cells, PBMC’s, fibroblasts, keratinocytes, blood vessels and engineered tissues (pg. 93, col 2, paragraph 1).
Therefore, it would have been obvious prior to the effective filing date of the instantly claimed invention to culture NK cells as taught by Granzin, and include CryoStor solution as taught by Baust to arrive at the claimed invention. As Baust teaches improvements in cryopreservation outcomes by including media such as CryoStor, one of ordinary skill would have been motivated to modify the method of Granzin to include CryoStor with a reasonable expectation of advantageously improving cell survival in systems including hepatocytes, cord blood stem cells, PBMCs, fibroblasts, keratinocytes, blood vessels and engineered tissues as taught by the prior art.
Response to Arguments
On p. 12 of Remarks, Applicant argues that Baust only teaches improvements in cryopreservation techniques and outcomes but does not disclose any teachings related to NK cells, IL-21 or functional outcomes such as NK cell expansion or cytotoxicity.
In response, the examiner notes that Baust teaches why one of ordinary skill would utilize Cryostor as a cryopreservation medium to improve cell survival post-thaw, particularly in PMBCs (which includes NK cells). This teaching provides reasonable motivation for one of ordinary skill to utilize CryoStor in a method requiring freezing of NK cells as taught by Granzin above. Thus, Applicant’s arguments are not persuasive.
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 it 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. Applicant has requested that the double patenting rejection be held in abeyance until otherwise allowable subject matter is identified. In response, double patenting rejections cannot be held in abeyance. Only objections or requirements as to form not necessary for further consideration of the claims may be held in abeyance until allowable subject matter is indicated. Therefore, an application must not be allowed unless the required compliant terminal disclaimer is filed and/or the withdrawal of the nonstatutory double patenting rejection is made of record by the examiner (see MPEP 804.02(IV) for filing terminal disclaimers required to overcome nonstatutory double patenting rejections in applications filed on or after June 8,1995). Thus, the rejection has been maintained.
Double Patenting – New Grounds of Rejections
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 Granzin et al.
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.
Granzin teaches a method for in-vitro culturing and expanding natural killer cells comprising a) adding an effective concentration of interleukin-21 (IL-21) at the beginning of the culturing process to said medium b) adding repeatedly an effective concentration of interleukin-2 (IL-2) and/or interleukin-15 (IL-15) to said medium c) adding repeatedly feeder cells or membrane particles thereof to said medium, wherein said feeder cells are B cell derived which are EBV immortalized; and wherein said expansion of NK cells in said cell culture medium is maintained for at least 3 weeks (see claim 1 of Granzin). The effective concentration of IL-21 in the culture medium is between 0.1 and 1000 ng/mL (see claim 2 of Granzin). Human peripheral blood mononuclear cells (PBMC) were prepared from buffy coat preparations from human whole blood and NK cells were isolated from PBMC using the NK cell isolation kit (para 98). Cultivated NK cells are cryopreserved after two weeks (para 94). Cryopreserved NK cells are thawed and further cultivated in said culturing process (i.e., repeat same method after thawing), allowing for NK cell production starting from a cryopreserved cell bank (same para). NK cells are cultivated in said culturing process for 13 days (para 93). The adding of an effective concentration of interleukin-21 (IL-21) to a cell culture medium suitable for expanding NK cells at the beginning of the cultivation process of the NK cells in combination of the presence of feeder cells which are B cell derived and EBV transformed such as Epstein-Barr virus-transformed lymphoblastoid cell lines (EBV-LCL) and the repeated addition of fresh feeder cells which are B cell derived and EBV transformed such as EBV-LCL during the whole duration of cultivation of NK cells, result in a very high number of expanded NK cells (para 10). Preferentially, the effective concentration of IL-21 is added once to the cell culture medium only. Alternatively, the effective concentration of IL-21 is added repeatedly, e.g. twice or more frequently, to said cell culture medium but within the first three days of the cultivation process (para 61).
Thus, the combination of ‘385 and Granzin 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 with respect to the NSDP rejection over ‘385 in view of Min 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.
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 Granzin 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.
However, Granzin teaches a method for in-vitro culturing and expanding natural killer cells comprising a) adding an effective concentration of interleukin-21 (IL-21) at the beginning of the culturing process to said medium b) adding repeatedly an effective concentration of interleukin-2 (IL-2) and/or interleukin-15 (IL-15) to said medium c) adding repeatedly feeder cells or membrane particles thereof to said medium, wherein said feeder cells are B cell derived which are EBV immortalized; and wherein said expansion of NK cells in said cell culture medium is maintained for at least 3 weeks (see claim 1 of Granzin). The effective concentration of IL-21 in the culture medium is between 0.1 and 1000 ng/mL (see claim 2 of Granzin). Human peripheral blood mononuclear cells (PBMC) were prepared from buffy coat preparations from human whole blood and NK cells were isolated from PBMC using the NK cell isolation kit (para 98). Cultivated NK cells are cryopreserved after two weeks (para 94). Cryopreserved NK cells are thawed and further cultivated in said culturing process (i.e., repeat same method after thawing), allowing for NK cell production starting from a cryopreserved cell bank (same para). NK cells are cultivated in said culturing process for 13 days (para 93). The adding of an effective concentration of interleukin-21 (IL-21) to a cell culture medium suitable for expanding NK cells at the beginning of the cultivation process of the NK cells in combination of the presence of feeder cells which are B cell derived and EBV transformed such as Epstein-Barr virus-transformed lymphoblastoid cell lines (EBV-LCL) and the repeated addition of fresh feeder cells which are B cell derived and EBV transformed such as EBV-LCL during the whole duration of cultivation of NK cells, result in a very high number of expanded NK cells (para 10). Preferentially, the effective concentration of IL-21 is added once to the cell culture medium only. Alternatively, the effective concentration of IL-21 is added repeatedly, e.g. twice or more frequently, to said cell culture medium but within the first three days of the cultivation process (para 61).
Thus, the combination of ‘498 and Granzin 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 Granzin 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 it 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, Granzin teaches a method for in-vitro culturing and expanding natural killer cells comprising a) adding an effective concentration of interleukin-21 (IL-21) at the beginning of the culturing process to said medium b) adding repeatedly an effective concentration of interleukin-2 (IL-2) and/or interleukin-15 (IL-15) to said medium c) adding repeatedly feeder cells or membrane particles thereof to said medium, wherein said feeder cells are B cell derived which are EBV immortalized; and wherein said expansion of NK cells in said cell culture medium is maintained for at least 3 weeks (see claim 1 of Granzin). The effective concentration of IL-21 in the culture medium is between 0.1 and 1000 ng/mL (see claim 2 of Granzin). Human peripheral blood mononuclear cells (PBMC) were prepared from buffy coat preparations from human whole blood and NK cells were isolated from PBMC using the NK cell isolation kit (para 98). Cultivated NK cells are cryopreserved after two weeks (para 94). Cryopreserved NK cells are thawed and further cultivated in said culturing process (i.e., repeat same method after thawing), allowing for NK cell production starting from a cryopreserved cell bank (same para). NK cells are cultivated in said culturing process for 13 days (para 93). The adding of an effective concentration of interleukin-21 (IL-21) to a cell culture medium suitable for expanding NK cells at the beginning of the cultivation process of the NK cells in combination of the presence of feeder cells which are B cell derived and EBV transformed such as Epstein-Barr virus-transformed lymphoblastoid cell lines (EBV-LCL) and the repeated addition of fresh feeder cells which are B cell derived and EBV transformed such as EBV-LCL during the whole duration of cultivation of NK cells, result in a very high number of expanded NK cells (para 10). Preferentially, the effective concentration of IL-21 is added once to the cell culture medium only. Alternatively, the effective concentration of IL-21 is added repeatedly, e.g. twice or more frequently, to said cell culture medium but within the first three days of the cultivation process (para 61).
Thus, the combination of ‘388 and Granzin et al renders the instant claims prima facie obvious if ‘388 was available as prior art.
Conclusion
No claim is allowed.
THIS ACTION IS NON-FINAL.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
U.S. Patent No. 9,938,498 B2 (Applicant’s own work), which describes 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.
Lee et al (US20180223257A1, same assignee; filed 4/9/2018; published 8/9/2018) which describes providing a composition comprising natural killer cells obtained from a culture comprising peripheral blood mononuclear cells co-cultured in the presence of one or more cytokines with feeder cells comprising irradiated Jurkat cells and irradiated EBV-LCL cells in a method of treating cancer. Cytokines utilized include IL-21 and a ratio of PMBCs to feeder cells in, for example, 2:1 ratio
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/G.R./Examiner, Art Unit 1632 /KARA D JOHNSON/Primary Examiner, Art Unit 1632