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 .
Applicant’s amendments and remarks filed 10-7-25 in response to the restriction requirement mailed 7-7-25 are acknowledged.
The restriction requirement mailed 7-7-25 set forth species of invention (A)-(F).
With respect to election of species part (A), applicant does not explicitly set forth an election. Rather, applicant amends claim 1 to limit the method for manufacturing CAR expressing human lymphocytes to “using an isolation technique comprising antibody-conjugated magnetic bead separation” and further strikes the other type (A) species from claim 1 and cancels the dependent claims drawn to the other type (A) species. Therefore, applicant appear to have de facto elected the species of a method of manufacturing isolation technique of claim 1(a) which comprises “antibody conjugated magnetic beads”.
With respect to election of species part (B), applicant does not explicitly set forth an election. Rather, applicant amends claim 1 to specify in the method for manufacturing CAR expressing human lymphocytes that step (b) is no longer “optional.” Therefore, applicant appears to have de facto elected the species of method of manufacturing that involves contacting the target cells with an activating molecule.
With respect to election of species part (C), applicant elects a species of method of manufacturing which is performed with an enhancing reagent as recited in claims 29 /45.
With respect to election of species part (D), applicant elects “…a species of method of manufacturing wherein the transfection step (d) follows the activation step (b) as recited in claim 34.”
With respect to election of species part (E), applicant elects “…a species of method of manufacturing wherein the target cells are expanded after transfection using expansion feeding as in claim 40.”
With respect to election of species part (F), applicant elects “…a species of method of manufacturing wherein the activating of step (b) is as recited in claim 49.”
Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 1, 6, 8-11, 14, 18, 25-27, 29, 32, 34-36, 38-40, 43-45, 48 and 49 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;
the species of method of manufacturing wherein the target cells are expanded after transfection using expansion feeding as in claim 40; and
the species of method of manufacturing wherein the activating of step (b) is as recited in claim 49.
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.
Claim(s) 1, 6, 8-11, 14, 18, 25-27, 29, 34, 35, 40, 43-45, 48 and 49 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)(cited on an IDS), as evidenced by He et al. (20210369779) (all cited herewith unless cited on an IDS).
Choi teaches “Using the CRIPSR-Cas9 system, we created universal CAR T cells resistant to PD-1 inhibition through multiplexed gene disruption of endogenous T-cell receptor (TRAC), beta-2 microglobulin (B2M) and PD-1 (PDCD1)….CRISPR-Cas9 gene-editing not only
provides a potential source of allogeneic, universal donor cells, but also enables simultaneous disruption of checkpoint signaling that otherwise impedes maximal antitumor functionality.” (see Abstract).
More particularly, at page 2-3 col. bridging paragraph and Fig. 1b, Choi teaches a “strategy for multiplexed gene-editing consists of in vitro stimulation of primary human T cells, followed by electroporation with respective Cas9 ribonucleoproteins (RNPs) and subsequent adeno-associated virus (AAV)-mediated transduction of the CAR (Fig. 1b).” See also “Methods” at page 6, last paragraph.
At page 3, left col., 2nd full paragraph, Choi further teaches, “CAR T cells are known to exist in
various states of differentiation, with less differentiated stem cell memory (TSCM) or central memory (TCM) subtypes preferred over well-differentiated effector memory cells (TEM), specifically regarding characteristics such as expansion, persistence, and the capacity for self-renewal [10]. Moreover, loss of PD-1 has been shown to alter memory T-cell content and generation in other settings [11]. At baseline, both CART-EGFRvIII and CARTEGFRvIIIΔPD-
1 demonstrated similar T-cell differentiation patterns compared to control T cells that had also
been gene-edited for TRAC and B2M, in addition to undergoing mock transduction with AAV6 (Fig. 2, left column). By contrast, prolonged stimulation of CARTEGFRvIIIΔPD-1 led to a selective enrichment of TCM, while CART-EGFRvIII cells expressing native PD-1 appeared
to enrich for the more differentiated TEM compartment (Fig. 2, right column).”
Figure 2 of Choi shows the distribution of TN (naïve T-cells), TCM, TEM and TE (effector T-cells) at “Day 1 prior to stimulation” and at Day 21 after stimulation in the presence of target cells expressing the EGFRvIII target of the CAR T-cell.
The first paragraph of the Discussion of Choi highlights the potential of such allogenic engineered T-cells as “off-the-shelf” universal CAR T cells.
However, Choi does not teach the specific details of base claim 1, e.g., “isolating target cells from donor sourced starting material using an isolation technique comprising antibody-conjugated magnetic bead separation” or “transducing the target cells with CAR construct-encoded lentiviral vectors, retroviral vectors or adeno-associated vectors in an enclosed vessel, a fluidic channel and any combination thereof.”
At paragraph 73 Germeroth teaches (emphasis added):
“[0073] Provided herein are methods for selecting cells from a sample comprising target cells (e.g., T cells, CD3+, CD4+, CD8+ T cells) and immobilizing said target cells on the stationary phase of a chromatography column, stimulating immobilized cells on the stationary phase (also referred to herein as on-column stimulation), and collecting and/or eluting the selected and stimulated cells that spontaneously detach from the stationary phase without the use of competition agents or free binding agents to facilitate detachment. Among the provided methods are methods involving selecting cells from a sample comprising target cells (e.g., T cells, CD3+, CD4+, CD8+ T cells) and immobilizing said target cells on the stationary phase of a chromatography column, stimulating immobilized cells on the stationary phase, and collecting and/or eluting the selected and stimulated cells by gravity flow. In provided embodiments, stimulating target cells (e.g., CD3+, CD4+, or CD8+ T cells) on a stationary phase of a chromatography column, facilitates downregulation of the molecule used for cell selection (i.e., selection marker), resulting in spontaneous detachment or release of the cell from the stationary phase.”
Similar to paragraph 73 above, paragraph 81 further describes how a “selection agent” is used to “functionalize” the chromatography matrix (emphasis added):
“[0082] In particular aspects, the provided methods are based on observations that selecting and stimulating target cells (e.g., CD3+, CD4+, or CD8+ T cells) on a stationary phase of a chromatography column, where stimulation facilitates downregulation of the molecule used for cell selection (i.e., selection marker), results in spontaneous detachment of the cell from the stationary phase. In some embodiments, the stationary phase of the chromatography column is functionalized with an agent (e.g., selection agent) capable of specifically binding to a molecule (e.g., selection marker) on a target cell surface. In this way, when combining a sample comprising target cells containing the selection marker (e.g., CD3, CD4, CD8) with the stationary phase (e.g., adding the sample to the stationary phase), target cells (e.g., CD3+, CD4+, CD8+ T cells) are indirectly immobilized to the stationary phase. In particular aspects, the target cells (e.g., T cells) are stimulated while immobilized on the stationary phase (e.g., on-column stimulation), for example, by addition of stimulatory agents, stimulatory reagents comprising stimulatory agents, and/or via stimulatory agents coupled directly or indirectly to the stationary phase. In particular embodiments, the stimulatory agents include agents that activate or stimulate T cells, such as anti-CD3/anti-CD28 antibody (e.g. Fab) agents. Thus, in some aspects, the provided methods and other embodiments are advantageous in that they condense multiple processing steps (e.g., selection and stimulation) and/or eliminate processing steps (e.g., steps for removing selection reagents and/or agents used to facilitate detachment) and allow the condensed process to occur within the same container and/or closed system, which can provide increased efficiency and sterility.”
At paragraph 150, Germeroth describes a selection agent based on “Magnetically attractable particles” (emphasis added):
“[0151] A chromatography matrix employed in the present invention may also include magnetically attractable matter such as one or more magnetically attractable particles or a ferrofluid. A respective magnetically attractable particle may comprise a selection reagent with a binding site (e.g., selection agent) that is capable of binding to and immobilizing the target cell on the chromatography matrix. Magnetically attractable particles may contain diamagnetic, ferromagnetic, paramagnetic or superparamagnetic material. Superparamagnetic material responds to a magnetic field with an induced magnetic field without a resulting permanent magnetization. Magnetic particles based on iron oxide are for example commercially available as Dynabeads® from Dynal Biotech, as magnetic MicroBeads from Miltenyi Biotec….,” and as to the particular selection agent capable of binding CD4+ or CD8+ expressing T-cells, paragraphs 164-165 describe the use of anti-CD4 and anti-CD8 antibodies as selections agents.
With respect to claim 6, Germeroth teaches using cryopreservation to store the end product of allogeneic, primary human CAR T-cells with CRISPR-Cas9 TRAC, B2M and PDCD1 disruption, teaches formulating their harvested cells for cryopreservation, e.g., in the presence of a cryoprotectant (see, e.g., paragraphs 53 and 91).
With respect to claim 8, Germeroth teaches donor sourced starting material for the production of CAR T-cells is conveniently stored prior to processing via cryopreservation (see, e.g., paragraphs 106-107).
Moreover, at paragraph 132 Germeroth teaches various “sequential selection” steps where CD4+ and CD8+ T-cells are individually selected from a starting population of cells, which is consistent with claim 18.
Alternatively, paragraph 132 the teachings of Germeroth further encompass in their breadth methods wherein cell selection is performed via chromatography columns employing a step of anti-CD3 selection, consistent with claim 25, noting that an anti-CD3 antibody will inherently activate target cells to some extent.
Likewise, at paragraph 143 Germeroth teaches “In some aspects, the chromatography can be carried out in a flow through mode in which a fluid sample containing the cells, e.g., the target cells, is applied, for example, by gravity flow or by a pump on one end of a column containing the chromatography matrix and in which the fluid sample exists the column at the other end of the column,” consistent with claim 26.
Furthermore, at paragraph 135-136 Germeroth teaches the binding capacity of their “stationary phase,” i.e., their “selection resin” can be, e.g., 100 million target cells per mL, which falls within the range of claim 27, and thus it would be obvious to the skilled artisan to load this many starting cells onto a cell selection column of Germeroth.
With respect to expanding T-cell genetically modified by transduction and transfection, at paragraphs 332 and 337 Germeroth teaches expansion in the context of a bioreactor with a feed port, i.e., expansion feeding, consistent with claim 40.
With respect to claim 43 which recites “activating of step (b) for up to 96 hours at about 37 C and 5% CO2--,” paragraphs 61, 75 and 78 (for example) of Germeroth shows / teaches cell stimulation occurs within 24 hours; paragraph 191 of Germeroth teaches cells bound to a stimulatory reagent including stimulatory agents is incubated at 37°C; and paragraph 336 of Germeroth teaches cells incubated or cultivated at around 5% CO2--, the latter two of which are conditions consistent with the temperature and carbon dioxide parameters of human blood.
With respect to claim 44, paragraphs 395-396 of Germeroth describe post-activation processing steps including wherein “the formulation is carried out using one or more processing step including washing…,” and “…such processing steps for formulating a cell composition are carried out in a closed system. Exemplary of such processing steps can be performed using a centrifugal chamber in conjunction with one or more systems or kits associated with a cell processing system, such as a centrifugal chamber produced and sold by Biosafe SA, including those for use with the Sepax® or Sepax 2® cell processing systems. An exemplary system and process is described in International Publication Number WO2016/073602.”
With respect to claims 29 and 45, paragraph 142 for example of Germeroth teaches CAR transduction with lentiviral vector and an enhancing agent, likewise, paragraph 159 of Kotz teaches teaches CAR transduction with lentiviral vector and an enhancing agent.
At paragraphs 420-421, Germeroth describes "Exemplary Features of the Process and/or Output Populations" (emphasis added):
“[0420] In particular embodiments, the provided methods are used in connection with a process that produces or generates an output population of engineered T cells (e.g., therapeutic cell population) from one or more input populations, such as input populations obtained, selected, or enriched from a single biological sample. In certain embodiments, the output population contains cells that express a recombinant receptor, e.g., a TCR or a CAR. In particular embodiments, the cells of the output populations are suitable for administration to a subject as a therapy, e.g., an autologous cell therapy.
[0421] In particular embodiments, the provided methods are used in connection with an entire process for generating or producing output cells and/or output populations of engineered T cells, such as a process including some or all of the steps of: selecting and stimulating the cells using column chromatography in a single step; collecting spontaneously detached cells without the use of a competition reagent; engineering, transforming, transducing, or transfecting the stimulated cells to express or contain a heterologous or recombinant polynucleotide, e.g., a polynucleotide encoding a recombinant receptor such as a CAR; incubating the cells, removing or separating a stimulatory reagent (e.g., oligomeric stimulatory reagent) from the cells, and harvesting and collecting the cells, in some aspects thereby generating an output population of engineered T cells.”
At paragraphs 443-444 Germeroth further teaches (emphasis added):
“[0443] In particular embodiments, the cells are harvested prior to, prior to about, or prior to at least one, two, three, four, five, six, eight, ten, twenty, or more cell doublings of the cell population, e.g., doublings that occur during the incubating. In certain embodiments, the cells are harvested prior to any doubling of the population, e.g., doubling that occurs during the incubation. In some aspects, reducing the doubling that may occur during an engineering process will, in some embodiments, increase the portion of engineered T cells that are naïve-line. In some embodiments, increasing the doubling during an engineering process increases T cell differentiation that may occur during the engineering process.
[0444] In some aspects, it is contemplated that, for a process for generating or producing engineered cell compositions (e.g., therapeutic cell composition), reducing the expansion or cell doublings that occur during the process, e.g., during the incubation, increase the amount or portion of naïve-like T cells of the resulting engineered cell composition. In particular aspects, increasing the expansion or cell doublings that occur during the process increases the amount or portion of differentiated T cells of the resulting engineered cell composition. In some aspects, it is contemplated that process, such as the processes provided herein, that increase or enlarge the portion of naïve-like cells in the resulting engineered cell composition may increase the potency, efficacy, and persistence, e.g., in vivo after administration, of the engineered cell composition.”
Concluding paragraph 805 of Germeroth states (emphasis added):
“[0993] Together, these data indicate that on-column selection and stimulation can be used in a process for producing engineered T cells (e.g. CAR+ T cells), including in a process in which selected T cells are collected from the column within 4.5 hours after initiation of stimulation with anti-CD3/anti-CD28 oligomeric reagent for use in subsequent steps of the process including transduction. The results demonstrate that the on-column selection and stimulation process results 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 due to the ability to combine the selection and stimulation in a single step.”
An additional advantage of the production method described by Germeroth is that their “condensed process” can occur within the context of “closed system” as set forth in paragraph 81 (emphasis added):
“…in some aspects, the provided methods and other embodiments are advantageous in that they condense multiple processing steps ( e.g., selection and stimulation) and/or eliminate processing steps ( e.g., steps for removing selection reagents and/or agents used to facilitate detachment) and allow the condensed process to occur within the same container and/or closed system, which can provide increased efficiency and sterility.”
Indeed, the idea that shortened production time for CAR T-cells was advantageous was well-known in the art as illustrated by the evidentiary teachings of He.
For example, He compares CAR T-cells made by their “Fast-CAR” method, which minimizes the CAR T-cell production time, to CAR T-cells made by a conventional production method which takes comparably longer, and thus results in greater T-cell doubling and in turn differentiation to more “exhausted” phenotypes, see, e.g., paragraphs 14, 18, 23, 53, 54, 104, 241, 268, 290-291, 313-314, 319-320, 331-333. Note well that more naïve, less-exhausted FAST-CAR T-cells are also cells that can be described as having a greater “central memory phenotype” (TCM) as compared to an “effector memory phenotype” (TEM).
When the above teachings of Germeroth as evidenced by He are considered together it would be obvious to the ordinarily skilled artisan that any CAR T-cell production step that can be performed more efficiently, i.e., in a manner that reduces the production time, thereby reducing the number of T cell doublings, would be reasonable expected to produce CAR+ T cells that exhibit better characteristic for adoptive immunotherapy, e.g., CAR T-cells having more “naïve” or Tcm / Tscm characteristic which are favorable for T-cell persistence and anti-cancer cytotoxicity.
Further consistent with the teachings of Germeroth as evidenced by He, Kotz teaches a “transduction device” (see Abstract) for increasing the efficiency, i.e., the speed, of viral transduction of T-cells (see paragraph 97 describing conventional transduction of T-cells and paragraph 181 describing rapid transduction of T-cells with the device of Kotz). Kotz further describes how T-cells transduced with their transduction device have good viability (see Example 4). The transduction device of Kotz employs fluidic flow channels to facilitate the movement of cells between chamber wherein a semi-permeable membrane facilitates co-localization of the cells such to be transduced, e.g., T-cells, with the transducing viral vector, e.g., a lentiviral vector, in a very small volume (by permitting passage of carrier fluid for the T-cells / the transducing lentiviral vector while preventing the cells and viral vector per se from passing through the membrane, e.g., see Abstract and paragraph 11), i.e., at a very high concentration of, e.g., T-cells and viral particles (see, e.g., Abstract, paragraphs 3, 96, 98-107 and 113). In Example 1, under the header an “Exemplary Device Assembly and Use,” at paragraph 176 Kotz teaches “Once cells/virus have been loaded, block off flow to the device. Place device in 37° C. incubator for desired transduction time,” which is consistent with claim 48. At paragraph 26, Kotz teaches activation of cells to be transduced can occur prior to or substantially simultaneously with viral transduction, the former which is consistent with claim 49. Moreover, at paragraph 159 Kotz teaches their transduction, e.g., lentiviral transduction, may comprising a transduction enhancer such as Retronectin, consistent with claims 29 and 45.
Similarly, the non-patent publication of Moore et al., the authorship of which encompasses each of the inventors listed on Kotz, teaches their micro-fluidic transduction device (“MTD,” see Figure 1C) offers various benefits over conventional transduction, “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 and 6 hours for HSCs. Deployment of the MTD can lead to a significant reduction in viral vector consumption and potentially reduce overall transduction time. As the integration of new genetic material into the target cells is among the most costly steps in the production of engineered cellular therapies, reducing vector and labor-associated costs will facilitate more wide-scale development of these life-saving treatment modalities and ultimately increase patient accessibility.” (see page 8, 2nd full paragraph, emphasis added).
The ability of the MTD of Moore to achieve efficient transduction in a smaller period of time may also diminish the need for post-transduction expansion of the transduced cells:
“…the MTD is expected to increase the transduction efficiency and ultimately the total number of transduced cells. In the context of cellular therapies, a larger number of transduced cells greatly reduces the expansion period required to achieve a therapeutic dose, and as cellular
therapies are improved and developed, the MTD may even eliminate the need for an expansion period altogether. Alternatively, in cases where vector saturation can be achieved, the MTD is expected to reduce the amount of virus needed to reach transduction saturation by ~50%, while potentially also reducing transduction culture time. As lentiviral vector is a major cost driver in manufacturing engineered cellular therapies, a two-fold reduction in required viral vector has the potential to greatly reduce overall manufacturing costs.”
(see page 7-8 bridging paragraph, emphasis added).
Given the teachings of Choi in view of Germeroth, Kotz and Moore as evidenced by He, it would have been obvious to the ordinarily skilled artisan that the CAR T cell production scheme outlined by Choi could be further optimized to:
(i) better enable large-scale production of allogeneic, CAR containing T-cells that are TCR, B2M, and PD-1 triple knockout and thus ready for “off-the-shelf” adoptive immunotherapeutic use; and
(ii) shorten the time required for isolating, activating, transducing and transfecting the target T-cells, which in turn was expected to reduce the number of T cell doublings that occur during these steps so as to produce CAR+ T cells that exhibit better characteristic for adoptive immunotherapy, e.g., CAR T-cells having more “naïve” or Tcm / Tscm characteristic which are favorable for T-cell persistence and anti-cancer cytotoxicity.
For example, one reason it would have been obvious to the ordinarily skilled artisan that the T-cell isolation and activation method described by Germeroth was an improvement over that of Choi was because, as set forth above, Germeroth teaches their process allows for an efficient selection and stimulation process in the context of a “closed system” which Germeroth taught was desirable for CAR T-cell production:
“…in some aspects, the provided methods and other embodiments are advantageous in that they condense multiple processing steps ( e.g., selection and stimulation) and/or eliminate processing steps ( e.g., steps for removing selection reagents and/or agents used to facilitate detachment) and allow the condensed process to occur within the same container and/or closed system, which can provide increased efficiency and sterility.” (see detailed description of Germeroth above)
Along these same lines, modifying the CAR T-cell production method of Choi to incorporate the fluidic channel transduction technology of Kotz was likewise obvious since, consistent with the known benefits of shortened processing time to produce CAR T-cells which have a more naïve phenotype that promote greater potency, efficacy and in vivo persistence (see the teachings of Germeroth as evidenced by He), the micro-fluidic transduction device (“MTD”) of Kotz / Moore was able to transduce T cells in as short as 45-90 minutes.
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.
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) as applied to claims 1, 6, 8, 9, 10, 11, 14, 18, 25-27, 29, 34, 35, 40, 43, 44, 45, 48 and 49 above, and further in view of Wiesinger et al., Cancers (Basel). 2019 Aug 16;11(8):1198, cited herewith.
The teachings of Germeroth, Kotz and Moore, as evidenced by He as applied to claims 1, 6, 8-11, 14, 18, 25-27, 29, 34, 35, 40, 43-45, 48 and 49 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 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, 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.
Claim(s) 32 is 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) as applied to claims 1, 6, 8, 9, 10, 11, 14, 18, 25-27, 29, 34, 35, 40, 43-45, 48 and 49 above, and further in view of Sartorius (Sartocon® Single-Use Cassettes Protein Purification, Concentration and Diafiltration Cell Removal), pages 1-5, April 16, 2021), cited herewith.
The teachings of Germeroth, Kotz and Moore, as evidenced by He as applied to claims 1, 6, 8, 9, 10, 11, 14, 18, 25-27, 29, 34, 35, 40, 43-45, 48 and 49 are given above.
However, these references do not explicitly teach a membrane with a molecular weight cut-off between about 200 kDa and about 1000 kDa.
That said, at paragraph 110 Kotz their device may include “a commercial membrane typically used for ultrafiltration that is extremely hydrophilic…much lower binding to proteins and cells, leading to greater recovery of cells from the device.”
Sartorius teaches the Sartocon® single-use cassette for protein purification, concentration and diafiltration cell removal comprise “ultrafilter with nominal molecular weight cut-offs: 1 kD, 5 kD, 8 kD, 10 kD, 30 kD, 50 kD, 100 kD, 300 kD and microfilters with a pore size of 0.1 μm.” (see page 2, right side, 1st paragraph).
Given the teachings of Kotz and Sartorius it would have been obvious to the ordinarily skilled artisan that the “TMD” device of Kotz/Moore could comprise a commercial ultrafiltration membrane with a molecular weight cut-off of about 200 kDa and about 1000 kDa since according to the teachings of Sartorius ultrafilters and microfilter, each of which have MWCO and/or a pore size cutoff (≤ 300 kDa / 0.1 μm) that would be well understood by the ordinarily skilled artisan prior to applicant’s first filed application to permit the passage of proteins and smaller size solutes through the membrane, while retaining the far, far larger cells / viral particles.
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.
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.
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Claims 1, 8, 10, 11, 14, 18, 25, 26, 27, 29, 43, 44, 45, 48 and 49 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 13 of copending Application No. 18/377685 (reference application) in view of Germeroth et al. (WO2020089343).
Part (c) of reference claim 13 specifies that the transfection step of base claim 1 is one of “electroporation and viral transfection (transduction).” While reference claim 13 does not explicitly recite the isolation technique of instant claim 1 (and dependent claims thereof) wherein antibody-conjugated magnetic bead separation is used to isolate target cells, given the teachings of Germeroth set forth above it would have been obvious to do so; moreover, the ordinarily skilled artisan would have been motivated to use such a magnetic bead based method since it allows select cell, such as CD4+ and CD8+ to be quickly and efficiently isolated form whole blood. Likewise, while the reference claim does not explicitly recite activation of the CD4+ and CD8+ target cells, e.g., with anti-CD3/anti-CD28 antibodies prior to “viral transfection (transduction),” consistent with the teachings of Germeroth set forth above it further would have been obvious to one of ordinary skill in the art to do so since such a step is necessary to not only prime T-cells for transduction but also to promote a limited degree of T-cell expansion relative to the starting number of CD4+ and CD8+ T-cells isolated from PBMC so that the end product will provide a sufficient number of engineered cells for adoptive immunotherapeutic uses. As to the limitations set forth in the rejected claims that depend from claim 1 (8, 10, 11, 14, 18, 25, 26, 27, 29, 43, 44, 45, 48 and 49), these are likewise either inherent to the teachings of Germeroth specifically mentioned in the preceding sentences or naturally follow from the teachings of Germeroth set forth in the initial rejection under 35 USC § 103.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
No claims are allowed.
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/ZACHARY S SKELDING/Primary Examiner, Art Unit 1644