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 .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 9-15-26 has been entered.
Claims 1, 6, 8, 10, 11, 18, 26, 27, 29, 34-36, 38-40, 44, 45, 48, 57 and 58 are pending and under examination as they read on:
the species of a method of manufacturing isolation technique of claim 1(a) which comprises “antibody conjugated magnetic beads”;
the species of method of manufacturing that involves contacting the target cells with an activating molecule;
the species of method of manufacturing which is performed with an enhancing reagent as recited in claims 29 /45;
the species of method of manufacturing wherein the transfection step (d) follows the activation step (b) as recited in claim 34; and
the species of method of manufacturing wherein the target cells are expanded after transfection using expansion feeding as in claim 40.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 48 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. While the limits of “transducing…for about 4 hours” in base claim 1 are not precisely defined at paragraph [0042] of the specification, the skilled artisan would not consider a range of 1-72 hours to be encompassed by “about 4 hours” because microfluidic transduction for greater than 48 hours was not commonly practiced in the art as evidenced by the teachings of Kotz et al. and Moore et al. (see below).
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim(s) 1, 6, 8, 10, 11, 18, 26, 27, 29, 34, 35, 40, 44, 45, 48 and 58 are rejected under 35 U.S.C. 103 as being unpatentable over Choi et al. (J Immunother Cancer. 2019 Nov 14;7(1):304) in view of Germeroth et al. (WO2020089343), Kotz et al. (20190085280) and Moore et al. (Sci Rep. 2019 Oct 22;9(1):15101), as evidenced by He et al. (20210369779) and ThermoFisher (“T Cell Activation via Anti-CD3 and Anti-CD28,” internet published December 9, 2020, pages 1-5)(all of record), and as further evidenced by Feldmann et al. (OncoImmunology, 9:1, 1785608, (2020), cited herewith); Tran et al. (Mol Ther. 2017 Oct 4;25(10):2372-2382, cited herewith); Perry et al. (Viruses 2021, 13, 268, cited herewith); and Current Protocols in Immunology (2002), pages 7.19.1 to 7.19.12, at Section III: “Generation and Maintenance of Cloned Human T Cell Lines and Clones,” cited herewith.
The teachings of Choi in view of Germeroth, Kotz and Moore, as evidenced by He and ThermoFisher were set forth in the Final Office Action of 9-15-26.
Claim 1 has been amended as follows:
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First, with respect to “(b) activating the isolated target cells for about 24 hours at about 37°C and about 5% C02 in an enclosed culture vessel having an interior surface coated with an anti-CD3 antibody coated culture vessel…,” Germeroth teaches activation of target cells such as T-cell for ≤ 24 hours prior to transduction, see, e.g.:
“[0172] In some embodiments, the stimulation, e.g. incubating the immobilized cells under
stimulating conditions, is performed for, for about, or for less than one day. In some
embodiments, the stimulation, e.g. incubating the immobilized cells under stimulating
conditions, is performed for, for about, or for less than, 24, 23, 22, 21, 20…. hours. In some embodiments, the stimulation, e.g. incubating the selected cells under stimulating conditions, is performed for between or between about 2 to 24, 3 to 24… 20 to 24, 21 to 24, 22 to
24, 23 to 24… In some embodiments, the stimulation, e.g. incubating the immobilized cells under stimulating conditions, is performed for, for about, or for less than, 24 hours….”
Similar to [0172], at [0238] Germeroth further teaches the “spontaneous detachment” of cells immobilized to a stimulatory column by, e.g., CD3-binding, occurs up to a day after “the start of the incubation with the stimulatory agent,” e.g., “In some embodiments, spontaneous detachment occurs within one day from the start of the incubation with a stimulatory agent. In some embodiments, spontaneous detachment occurs within 24, 23, 22, 21, 20… hours from the start of the incubation with a stimulatory agent. In some embodiments, spontaneous detachment occurs within about 2 to 24, 3 to 24…20 to 24, 21 to 24, 22 to 24, 23 to 24…hours following the start of incubation with the stimulatory agent.”
Likewise, paragraph [0327] also emphasizes that transduction ("the incubation")(see paragraph [0325]) can occur "at or at least....24 hours...after the initiation of the stimulation":
“In particular embodiments, the incubation is initiated at, at about, or is at least 12
hours, 18 hours, 24 hours, 30 hours, 36 hours, 42 hours, 48 hours after the initiation of the
stimulation. In particular embodiments, the incubation is initiated at, at about, or is at least 0.5
days, one day, 1.5 days, or 2 days after the initiation of the stimulation….”
Finally, claims 1 and 2 highlight a 24 hour stimulatory phase when practicing the on-column stimulation of T cells (emphasis added):
“1. A method of on-column stimulation of T cells, the method comprising:
adding an oligomeric stimulatory reagent capable of delivering a stimulatory signal in T cells to a stationary phase comprising a plurality of immobilized T cells, thereby initiating incubation of the stimulatory reagent with one or more T cells, wherein:
the stationary phase comprises a selection agent that specifically binds to a selection marker on the surface of one or more T cells or subset thereof;
the oligomeric stimulatory reagent comprises one or more stimulatory agent comprising (i) a first stimulatory agent that is an anti-CD3 antibody, and (ii) a second stimulatory agent that is an anti-CD28 antibody; and
within 24 hours of initiating incubation, collecting one or more of the plurality of T cells from the stationary phase by gravity flow, thereby generating a composition comprising stimulated T cells.
2. A method of on-column stimulation of T cells, the method comprising:
(a) incubating a plurality of T cells immobilized on a stationary phase with one or more stimulatory agents to deliver a stimulatory signal in one or more T cells of the plurality of T cells, said stationary phase comprising a selection agent that specifically binds to a selection marker on the surface of the one or more T cells, wherein specific binding of the selection agent to the selection marker expressed by the one or more T cells immobilizes the one or more T cells on the stationary phase; and
(b) within 24 hours of the initiation of the incubation, collecting the one or more T cells from the stationary phase by gravity flow, thereby generating a composition comprising stimulated T cells.”
Note that with respect to the activation step occurring in an “enclosed culture vessel,” it would be obvious to the ordinarily skilled artisan that doing so provides numerous advantages consistent with the teachings of Germeroth at paras 0081, 0094, 0096 and 0132, such as “increased efficiency and sterility,” and monitoring of cell markers associated, e.g., “viability, activation, stimulation, growth and/or exhaustion….by an automated process.”
With respect to activating T cells in preparation for transduction via a “microfluidic transduction device” (“MTD”), Kotz teaches “T-cells were activated in the device and in a static plate under the standard protocol” and compares the effect that these various activation conditions had on transduction using a MTD. Kotz found either activation condition (MTD activation or static activation) promoted similar transduction efficiency in a MTD (see Example 14 and Fig. 37C).
That said, Kotz does not appear to explicitly teach which particular “beads” were used for T-cell activation or how long said activation occurred.
By contrast to Kotz, Moore teaches the activation agent and the activation time preceding MTD in the Figure 2 legend:
“Figure 2. The MTD enhances lentiviral transduction of T cells. CD3+ enriched T cells were activated for 48 hours using TransAct reagent and transduced with ZsGreen lentiviral vector in the 2M-MTD.”
Note that, as taught by Feldmann, incubation for 24 hours with the TransAct reagent was sufficient to prepare T-cells for spin transduction at an MOI of 2, to be carried out across a few two-hour episodes, each episode occurring on a 24-hour interval:
“Alternatively, a shortened protocol for RevCAR T cell transduction using T Cell TransAct™ (Miltenyi Biotec Cat#130-111-160) and TexMACS™ Medium (Miltenyi Biotec Cat#170-076-307) was used following the manufacturer’s instructions. In brief, 24 h after TransAct™ activation T cells were transduced with a multiplicity of infection of 2 for 2–3 times in 24 h intervals using spin infection for 2 h. T cells were then expanded over the weekend and used without sorting in the second week.” (emphasis added).
Likewise, Tran taught the activation of T-cells for 24 hours with CD3- and CD28-coated beads (Miltenyi Biotec) prior to MTD transduction: “[c]ells were ready for transduction after a 24-hr activation period.” (see Tran at page 2380, left col., 3rd full paragraph).
Given the teachings of Choi in view of Germeroth, Kotz and Moore as evidenced by…newly cited Feldmann and Tran, it would have been obvious to one of ordinary skill in the art to activate T-cell for “about 24 hours” prior to transduction “…in a fluidic channel comprised within a fluidic transmembrane device which provides an enclosed system with transmembrane flow and which co-localizes the vector and the activated target cells onto a membrane….”
Moreover, with respect to the said activation “for about 24 hours” occurring “at about 37°C and about 5% CO2 in an enclosed culture vessel having an interior surface coated with anti-CD3 antibody…,” as would be well known to the ordinarily skilled artisan, human T-cells are generally cultured at about 37°C and about 5% CO2 (see, e.g., Current Protocols in Immunology at item 2 on page 17.19.2).
As to “transducing the activated target cells with a vector encoding the CAR for about 4 hours in a fluidic channel comprised within a fluidic transmembreane device which provides the enclosed system with transmembrane flow…at a multiplicity of infection of about 4 transducing units per cell…” various teachings of Kotz and Moore demonstrate the prima facie obviousness of such limitations.
For example, at Example 7 Kotz provides a working example showing that MTD transduction efficiency approached its apparent maximum when the MOI was around 4 viral particles / T-cell or greater (see Fig. 29A). Similar results are displayed in Fig. 2b of Moore which teaches at page 4, 1st full paragraph, “At higher MOI (~5), the 2M-MTD reached a saturation point in transduction efficiency using approximately half the amount of virus needed with overnight static conditions (MOI between 10 and 15) (Fig. 2b).”
At paragraph 0179 of Example 2, Kotz teaches “T-cells were transduced for 1.5 to 6 hours with the transduction device using a commercial lentiviral vector expressing enhanced green fluorescent protein (eGFP), and compared to overnight and 1.5 hour static controls. The viral infection was performed with a multiplicity infection (MOI) of 1. The results are presented in the graph of FIG. 24.” (see below)
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Summarizing the results of Example 2 at paragraph 0182 Kotz concludes:
“[0182] In some embodiments, the device and method of transducing cells may provide a transduction efficiency of at least about 17% for a transduction of about 90 minutes at MOIs of less than or equal to 1. In some embodiments, the device and method of transducing cells may provide a transduction efficiency of at least about 21% for a transduction of about 6 hours.”
Consistent with the teachings of Kotz, at their “Conclusions” section on page 8 Moore taught:
“…We demonstrate that the MTD can safely and consistently improve lentiviral transduction efficiency of T cells and HSCs by up to 4 fold without significantly impacting cell viability or expansion. Furthermore, we demonstrate that optimal transduction efficiency can be maintained
with target cell and viral vector coincubation times as short as 45–90 minutes for T cells…”
That said, the last sentence of page 3-4 bridging paragraph of Moore also taught “Extension of the transduction period for up to 18 hours in the MTD (~3 viral half-lives) led to only marginal improvement in transduction efficiency at this MOI, typically less than 5% of total cells (data not shown).”
Given the teaching of Kotz and Moore described above it further would have been obvious to one of ordinary skill in the art that while the MTD of Kotz / Moore was capable of achieving adequate transduction in around 90 minutes, maximum transduction typically required longer, e.g., about 3-6 hours.
With respect to the new language recited in claim 1 specifying that the fluidic transmembrane device is one with “a membrane having a molecular weight cut-off between about 200 kDa and about 1000 kDa,” at paras 0003-4 Kotz teaches “a device for treatment of cells with particles. The device may comprise a semi-permeable membrane…,” wherein “[t]he semi-permeable membrane may have a plurality of pores dimensioned to allow passage of a fluid and prevent passage of the cells and the particles,” and wherein “[t]he particles may be viral particles or activation particles. For example, the device may be for treatment of cells with viral particles or activation particles.”
Moreover, in paragraph 0008 Kotz further teaches, “[t]he semi-permeable membrane may have an average pore size of between about 50% and about 25% of the average diameter of the particles,” and continuing in paragraph 0011 Kotz teaches the design of the membrane is such that “there is provided a method for transducing cells with viral particles. The method may comprise introducing a fluid with the cells and the viral particles into a first flow chamber through a first port, such that the fluid, the cells, and the viral particles contact a semi-permeable membrane having a plurality of pores dimensioned to allow passage of the fluid and prevent
passage of the cells and the viral particles.”
Moreover, given the teachings of Kotz and Moore as set forth in the prior Office Actions and rejections of record, it would be abundantly obvious to the ordinarily skilled artisan that the MTD devices of Kotz / Moore are designed to co-localize T-cells and virus particles on one side of the membrane while allowing fluid and smaller constituents to pass through to the other side (see Kotz at paragraph 0109 and Moore at Fig. 1c).
However, the Kotz / Moore references do not explicitly teach the “molecular weight cut-off” (MWCO) that a membrane should have to block passage of the small viral particles (and much larger T-cells). That said, at in Section 4.6 Perry describes the use of Tangential Flow Filtration (TFF) for buffer exchange / purification of lentiviral vectors, wherein “…membranes within the 100-750 kDa range tend to be employed….” (see page 28, 1st full paragraph).
Thus, it would be obvious to one of ordinary skill in the art that, in order to block the ≈ 100 nM lentiviral particles (see Kotz at [0109]) from passing through the membrane of the MTD, said membrane should have a MWCO in the range of 100-750 kDa which substantially overlaps the claimed range.
Likewise, as would be obvious to one of ordinary skill in the art, at the same time such membrane having pore sizes in the 100-750 kDa range are sufficiently large, e.g., to allow small molecule processes impurities (see Perry Table 1), as well as the abundant human serum albumin protein to pass through the membrane into the filtrate.
Furthermore, given that the ordinarily skilled artisan prior to applicant’s first filing date would have understood a human T-cell to be several hundred times larger in diameter than a viral particle, said ordinarily skilled artisan would further understand a human T-cell will definitely not pass through such a membrane.
Thus, it would have been obvious to one of ordinary skill in the art wishing to block the passage of virus particles and human T-cells through a semi-permeable membrane consistent with the teachings of Kotz / Moore that said semi-permeable membrane should have a pore size in the 100-750 kDa range, which was consistent with the “membrane having a molecular weight cut-off between about 200 kDa and about 1000 kDa” as recited in the instant claims.
In view of the reference teachings it was apparent that one of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Applicant’s Arguments
At “Part A” of remarks pages 6-7 applicant argues the combination of process parameters such as “activating the isolated target cells for about 24 hours…” on “an interior surface coated with an anti-CD3 antibody and with a soluble anti-CD28 antibody” followed by “transducing…for about 4 hours…at a multiplicity of infection of about 4 transducing units per cell,” and wherein the fluidic transmembrane device includes “a membrane having a molecular weight cut-off between about 200 kDa and about 1000 kDa,” allegedly “…is not taught or suggested by any single reference or the proposed combination,” see the prima facie case of obviousness based on the teachings of Choi et al. (J Immunother Cancer. 2019 Nov 14;7(1):304) in view of Germeroth et al. (WO2020089343), Kotz et al. (20190085280) and Moore et al. (Sci Rep. 2019 Oct 22;9(1):15101), as evidenced by He et al. (20210369779) and ThermoFisher (“T Cell Activation via Anti-CD3 and Anti-CD28,” internet published December 9, 2020, pages 1-5)(all of record), and as further evidenced by Feldmann et al. (OncoImmunology, 9:1, 1785608); Tran et al. (Mol Ther. 2017 Oct 4;25(10):2372-2382); Perry et al. (Viruses 2021, 13, 268); and Current Protocols in Immunology (2002), pages 7.19.1 to 7.19.12, at Section III: “Generation and Maintenance of Cloned Human T Cell Lines and Clones,” set forth above.
At “Part B” of remarks pages 7-8 applicant sets forth additional arguments.
First, applicant asserts that while claim 1 “…requires activating the isolated target cells ‘for about 24 hours ... in an enclosed culture vessel having an interior surface coated with an anti-CD3 antibody,’ by contrast ‘Germeroth's on-column selection and stimulation process…collects the cells from the column within 4.5 hours of initiating stimulation. See Germeroth, paragraph [0993] (‘selected T cells are collected from the column within 4.5 hours after initiation of stimulation with antiCD3/anti-CD28 oligomeric reagent for use in subsequent steps of the process including transduction’).”
Given the above applicant concludes, “Germeroth does not teach or suggest activating cells on an anti-CD3-coated interior surf ace of an enclosed culture vessel for about 24 hours and then transducing those activated cells in a separate fluidic transmembrane device as recited by claim 1.”
Applicant's argument has been considered but has not been found convincing essentially for the reasons of record set forth above. As described above certain teaching of Germeroth, consistent with the knowledge in the art as evidenced by the teachings of Feldmann and Tran, suggest that stimulating T-cells for above 24 hours preceding transduction was an obvious step to be taken.
Stated another way, as described in detail above when T-cells are stimulated in preparation for genetic modification using a MTD that co-localizes said activated T-cells and lentiviral particles the stimulation phase typically is around 24 hours or more rather than the very short 4.5 hour stimulation mentioned at Germeroth paragraph [0805].
Secondly in “Part B” applicant asserts / argues:
“Germeroth' s chromatography column is not an ‘enclosed culture vessel having an interior surface coated with an anti-CD3 antibody’ as recited by claim 1,” and further that
“Germeroth's stationary phase matrix is functionalized with selection agents for the purpose of immobilizing and selecting target cells, not for the purpose of activating cells on a coated interior surface of a culture vessel for 24 hours. The cells in Germeroth are collected from the column and then subjected to subsequent processing steps including transduction. This is fundamentally different from the claimed method where activation occurs for about 24 hours in an enclosed culture vessel having an interior surface coated with anti-CD3 antibody, followed by transduction in a fluidic transmembrane device.”
Applicant’s assertions / arguments are not found convincing for several reasons.
First, as described above with respect to the activation step occurring in an “enclosed culture vessel,” it would be obvious to the ordinarily skilled artisan that doing so provides numerous advantages consistent with the teachings of Germeroth at paras 0081, 0094, 0096 and 0132, such as “increased efficiency and sterility,” and monitoring of cell markers associated, e.g., “viability, activation, stimulation, growth and/or exhaustion….by an automated process.”
Second, in the context of condensing multiple steps (“selection and stimulation”) into a single step, Germeroth teaches the allowing “…the condensed process to occur within the same container and/or closed system…can provide increased efficiency and sterility.” (see paragraph 0081).
Third, if Germeroth considered their chromatography column to not be an “enclosed culture vessel” as applicant asserts then why would the teachings of Germeroth be focused on producing “viable T cells” after the on-column stimulation (see, e.g., at paragraph 0255 and Fig. 12C), and why would Germeroth describe an embodiment wherein the on-column “selected cells” are incubated with well-known T cell growth and viability factors such as IL-2, IL-7 and/or IL-15 (see paragraph 0183)?
Finally, at paragraph 0329 note that Germeroth explicitly describes how even when certain disclosed “incubating conditions” were not designed to increase the count of viable cells, this does not imply that said “incubating conditions” will not result in any cell expansion (“In some embodiments, cells that have been incubated under conditions that do not promote or facilitate expansion and proliferation may be referred to as non-expanded or minimally expanded (see Section I-G).”
Thus, by contrast to applicant’s argument, such teachings of Germeroth were consistent with the on-column stimulation of T cells preceding transduction being an example of “an enclosed culture vessel.”
Finally applicant argues:
“Germeroth’s stationary phase matrix is functionalized with selection agents for the purpose of immobilizing and selecting target cells, not for the purpose of activating cells on a coated interior surface of a culture vessel for 24 hours. The cells in Germeroth are collected from the column and then subjected to subsequent processing steps including transduction. This is fundamentally different from the claimed method where activation occurs for about 24 hours in an enclosed culture vessel having an interior surface coated with anti-CD3 antibody, followed by transduction in a fluidic transmembrane device.”
By contrast to applicant’s argument it matters not that allegedly Germeroth fails to explicitly “describe the possibility that their anti-CD3 selection mAb may itself activate the bound T-cells” since such is an inherent property of an enclosed culture vessel having an interior surface coated with anti-CD3 antibody.
In “Part C” of their remarks, applicant further argues that the teachings of Kotz and Moore do not describe certain now claimed parameters for the fluidic transmembrane transduction device.
Applicant's argument has been considered but has not been found convincing essentially for the reasons of record set forth above.
As described above with reference to certain teaching of Perry, it would have been obvious to one of ordinary skill in the art wishing to block the passage of virus particles and human T-cells through a semi-permeable membrane consistent with the teachings of Kotz / Moore that said semi-permeable membrane should have a pore size in the 100-750 kDa range, which was consistent with the “membrane having a molecular weight cut-off between about 200 kDa and about 1000 kDa” as recited in the instant claims.
In “Part D” of their remarks at page 8, last paragraph applicant further argues “the claimed method achieves unexpected and superior results compared to conventional methods. See As-Filed Specification, paragraph [0152] and Table 1,” further pointing to a “2.5-fold improvement” in transduction efficiency of “Improved Method 2” as compared to the control method: “…This superior transduction efficiency was achieved despite using a lower MOI (4 transducing units per cell versus 6.8 in the control), shorter activation time (24 hours versus 72 hours), and dramatically shorter transduction time (4 hours versus 24-48 hours). Critically, the T cells showed comparable fold expansion (8.84 versus 9.84), demonstrating that the improved transduction efficiency did not come at the cost of reduced cell expansion.”
Applicant’s argument has been considered but has not been found convincing because, as described above, both Kotz and Moore taught the superiority of transduction for about 4 hours in an MTD under conditions falling within the breadth of the instant claims, even when using a lower MOI, as compared to conventional transduction techniques.
For example, at paragraph 0179 of Example 2, Kotz teaches “T-cells were transduced for 1.5 to 6 hours with the transduction device using a commercial lentiviral vector expressing enhanced green fluorescent protein (eGFP), and compared to overnight and 1.5 hour static controls. The viral infection was performed with a multiplicity infection (MOI) of 1. The results are presented in the graph of FIG. 24.” (see below)
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At page 9, 1st – 3rd paragraphs, applicant further points to certain teachings of Germeroth at paragraph 0805 (“result[] in an engineered (e.g. CAR+ cells) cell composition that exhibits phenotypic and functional features that are comparable to the alternative process, yet can be carried out more efficiently and in a shorter time."), and concludes “[t]he unexpected results achieved by the claimed method–64% transduction efficiency with reduced viral vector
consumption–cannot be predicted from Germeroth's teaching of ‘comparable’ results with its
on-column process.”
Applicant's argument has been considered but has not been found convincing essentially for the reasons of record.
The prima facie case of obviousness set forth above is based on the teachings of Choi in view of Germeroth, Kotz and Moore as evidenced by various additional references. The teachings of Germeroth that applicants points to above are not relevant to the transduction efficiency achieved by the claimed method because, as described above, based on the teachings of Kotz and Moore the ordinarily skilled artisan would have expected use of a MTD to achieve superior transduction efficiency, and use of the MTD was not described in Germeroth.
Note in this regard as set forth in MPEP § 716.02(c)(II): “‘Expected beneficial results are evidence of obviousness of a claimed invention, just as unexpected results are evidence of unobviousness thereof.’ In re Gershon, 372 F.2d 535, 538, 152 USPQ 602, 604 (CCPA 1967) (resultant decrease of dental enamel solubility accomplished by adding an acidic buffering agent to a fluoride containing dentifrice was expected based on the teaching of the prior art); Ex parte Blanc, 13 USPQ2d 1383 (Bd. Pat. App. & Inter. 1989) (Claims at issue were directed to a process of sterilizing a polyolefinic composition which contains an antioxidant with high-energy radiation. Although evidence was presented in appellant’s specification showing that particular antioxidants are effective, the Board concluded that these beneficial results would have been expected because one of the references taught a claimed antioxidant is very efficient and provides better results compared with other prior art antioxidants.).”
In conclusion, when Applicant’s arguments are taken as a whole and weighed against the evidence supporting the prima facie case of unpatentability, the instant claims, by a preponderance of evidence, remain unpatentable. See M.P.E.P. §§ 716.01(d) and 2142.
Claim(s) 36, 38 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Choi et al. (J Immunother Cancer. 2019 Nov 14;7(1):304) in view of Germeroth et al. (WO2020089343), Kotz et al. (20190085280) and Moore et al. (Sci Rep. 2019 Oct 22;9(1):15101), as evidenced by He et al. (20210369779) and ThermoFisher (“T Cell Activation via Anti-CD3 and Anti-CD28,” internet published December 9, 2020, pages 1-5)(all of record), and as further evidenced by Feldmann et al. (OncoImmunology, 9:1, 1785608); Tran et al. (Mol Ther. 2017 Oct 4;25(10):2372-2382); Perry et al. (Viruses 2021, 13, 268); and Current Protocols in Immunology (2002), pages 7.19.1 to 7.19.12, at Section III: “Generation and Maintenance of Cloned Human T Cell Lines and Clones,” as applied to claims 1, 6, 8, 10, 11, 18, 26, 27, 29, 34, 35, 40, 44, 45, 48 and 58 as set forth above, and further in view of Wiesinger et al., Cancers (Basel). 2019 Aug 16;11(8):1198 (of record).
The teachings of Germeroth, Kotz and Moore, as evidenced by He, ThermoFisher, Feldmann, Tran, Perry and Current Protocols in Immunology as applied to claims 1, 6, 8, 10, 11, 18, 26, 27, 29, 34, 35, 40, 44, 45, 48 and 58 are given above.
Additionally, Germeroth teaches the following regarding some of the advantages of using a “closed system” for the production of CAR modified T-cells at paragraph 243 emphasis added:
“In some embodiments, the column and collection containers are connected in a closed
system. In some embodiments, the closed system is sterile. In some embodiments, the selection,
stimulation, and elution steps are performed by an automated system with minimal or no manual, such as human, operation or interference.”
With respect to using an enclosed system, including an enclosed centrifugation system, in the specific context of “Genetic Engineering,” for example “Transduction,” see Germeroth at paragraphs 268-272.
However, these references do not explicitly teach the various electroporation elements of claims 36, 38 and 39.
Wiesinger teaches a clinical-scale protocol was optimized for, inter alia, electroporation efficiency wherein as many as 3.2 x 109 cells were washed in a minimal essential medium buffer suitable for electroporation, OPTI-MEM®, concentrated to an appropriate volume for electroporation (600 µl / cuvette), and a CAR encoding mRNA was introduced into the cells using 4 mm gap electroporation cuvette at 500V for a single pulse of 5 ms using a square-wave pulse (see Section 4.4 and Supplementary Figure S4, including Figure S4 legend; see also Table 1). Thus, to summarize, Wiesinger teaches electroporation of 90 x 106 T-cells in a 4 mm gap electroporation cuvette at 500V for a single, square wave pulse of 5 ms, which yields a field strength of 50 kV/m.
Given the teachings of Germeroth, Kotz and Moore, as evidenced by He, ThermoFisher, Feldmann, Tran and Perry, and further in view of Wiesinger, firstly it would have been obvious to the ordinarily skilled artisan, and the ordinarily skilled artisan would have been motivated to use a microfluidic transduction device (MTD), as well as electroporation to genetically engineer T-cells to carry out such processes in a closed system using continuous or semi continuous flow so as to ensure sterility and for automation purposes as described by Germeroth. Secondly, with respect to the particular number of target cells to be electroporated and the characteristics of the “electric charge pulse” used for electroporation, it further would have been obvious to the skilled artisan that the teachings of Wiesinger provide guidance for clinical-scale electroporation that falls within the claimed limitations as to these parameters. As to washing and concentrating the target cells into an electroporation buffer using an “enclosed centrifugation system” for cell concentration purposes, it likewise would have been obvious to one of ordinary skill in the art, and the ordinarily skilled artisan would have been motivated to use such a technique given (i) the teachings of Germeroth regarding the advantage of closed system cell production, including the use of centrifugation in a closed system; and further given (ii) the teachings of Wiesinger that electroporation requires concentrating 90x106 viable cells into a 600 µL volume that an electroporation cuvette can accommodate.
In view of the reference teachings it was apparent that one of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made.
No claims are allowed. However, claim 57 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ZACHARY S SKELDING whose telephone number is (571)272-9033. The examiner can normally be reached M-F 9-5 EST.
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/ZACHARY S SKELDING/Primary Examiner, Art Unit 1644
