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 .
Claim Status
Claims 1-5, 7-12, 14-22, and 37-40 are currently pending in this application.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-5, 7-12 and 14-21, in the reply filed on Sept. 17, 2025 is acknowledged. Claim 22 is withdrawn for being directed to non-elected subject matter, and claims 1-5, 7-12, 14-21, and 37-40 have been considered on the merits.
Benefit of Priority Claim
Acknowledgement is made of applicant’s claim for the benefit of the prior-filed application US 63/004,537 under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c). The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 63/004,537, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. Entitlement to priority to April 3, 2020 based on 63/004,537 does not apply to the subject matter of claims 5, 12, and 39, therefore the earliest effective filing date of claims 5, 12, and 39 is Feb. 20, 2019 based on PCT/US2021/025471.
Claim Interpretation
In claim 1, the phrases “configured to be in contact with” regarding a surface of a cell support structure is not interpreted as a limiting and, thus, the first and second surfaces may be of any shape (including flat, tubular, ellipsoid, etc. (instant [0087[) that provides support to the cells.
In claim 1, the phrase “induces luminal fluid secretion” is interpreted as encompassing in an in vivo gastrointestinal tract or to the equivalent apical side of an in vitro monolayer, and the term “fluid” encompasses a liquid, viscoelastic gel, hydrogel, semisolid and/or viscous colloid.
In claim 15, the term “blocks” is interpreted as encompassing both a partial block and a complete block of secretion.
In claim 17, the phrase “stem cells comprise gastrointestinal epithelial cells” is interpreted to require the gastrointestinal epithelial cells to be capable of differentiating into enteroendocrine (EEC) cells as well as self-renewal into more undifferentiated cells having said capability.
In claim 4, the method comprising “adding one or more hormones and/or compounds to a medium composition to induce luminal fluid liquid secretion” is interpreted as requiring contacting the differentiating stem cells and/or EEC-enriched monolayer with said medium composition, e.g., via contacting the first and/or second surface with the medium.
In claim 20, the method comprising “adding one or more hormones compounds in an expansion medium to enhance formation of EEC” is interpreted as requiring contacting the stem cells with said medium, e.g., via contacting the first and/or second surface with the medium, prior to the differentiating step (b).
Claim Rejections - 35 USC § 112(a), Written Description
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-5, 7-12, 14-21, and 38-40 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
When claim 1 is analyzed in light of the specification, the instant invention is directed to a method of generating a live cell construct comprising a substantially continuous cell monolayer enriched with enteroendocrine cells (EECs) and comprising a plurality of EECs subtypes by a method comprising differentiating stem cells into EECs by exposing them to one or more hormones and/or compounds that induces luminal fluid secretion.
M.P.E.P. §2163 states “To satisfy the written description requirement, a patent specification must describe the claimed invention in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention. See, e.g., Moba, B.V. v. Diamond Automation, Inc., 325 F.3d 1306, 1319, 66 USPQ2d 1429, 1438 (Fed. Cir. 2003); Vas-Cath, Inc. v. Mahurkar, 935 F.2d at 1563, 19 USPQ2d at 1116.”
In the instant case, the breadth of claims 1 and 4 regarding the genus of “hormones and/or compounds that induces luminal fluid secretion” represents a broad genus. Similarly regarding claim 38 for the breadth of the genus of wherein the one or more compounds comprise any chemicals, cytokines, metabolites, bacteria and/or bacterial components.
Regarding claim 5, there is significant breadth in the genus of adding to a medium any chemical compounds, methylxanthines, prebiotics, hormones receptor agonists, cytokines, bacterial metabolites, food metabolites, and/or bacteria, or components thereof, to increase the density of the EECs.
The breadth of claim 20 regarding adding any one or more compounds to enhance formation of EEC represents a broad genus.
In analyzing whether the written description requirement is met for genus claims, it is first determined whether a representative number of species have been described. In the instant case, the specification fails to provide any clear description of a representative number species for this genus.
Nowhere does the application describe a single compound that literally increases the density of EEC cells when added during the differentiation step compared to the same method performed without the compound. The application merely suggests the increase of an EEC cell type marker as indicative of a change in overall EEC density. There is no description of a representative species of plurality of compounds (which includes merely H2O and oxygen), chemicals (which includes cadmium), cytokines (which includes erythropoietin and thrombopoietin), metabolites, bacteria, bacterial components, methylxanthines (which includes theacrine), prebiotics (which includes pectin), and food metabolites that increases the density of EECs in the claimed methods. Instead, the written description represents an invitation to the skilled artisan to figure out which species of the aforementioned might possibly increases the density of EECs when added during a differentiation step in the claimed methods wherein such compounds and chemicals are merely functionally defined without a single working example.
Within the context of the recited methods, the application describes a limited set of compounds that can enhance formation of EEC constrained to a vasoactive peptide (VIP), Wnt activator (e.g., CHIR99021), or VIP combined with BIMU8 (Examples 2 and 7, FIG. 3-4, 8, 11) wherein the stem cells are colonic stem cells (transverse colon). The instant specification prophetically describes examples of the preceding in the chemical compounds diterpenoid or forskolin, the methylxanthine IBMX, the prebiotics oligofructose and inulin-type fructans, the hormones serotonin, arginine, vasopressin, and angiotensin II, the receptor agonists BIMU8, Liraglutide (Saxenda), AM1638 (e.g., FFAR1 agonist), AR231453 (e.g., GPR119 agonist), and GPBAR1, the cytokines IL-10, IL-6, and TNF-α, the bacteria or food metabolites acetate, propionate and butyrate, the bacteria and/or bacteria components LPS, Akkermansia muciniphila, Bifidobacterium spp., Lactobacillus spp.
Regarding the capability of inducing luminal fluid secretion, there are numerous compounds and agents known in the art representing hormones, chemicals, cytokines, metabolites, bacteria and/or bacterial components, such as serotonin, short-chain fatty acids, and peptidoglycan. However there is no description in the instant application or predictability taught in the prior art that each agent capable of inducing luminal fluid secretion of EEC lineage enriched cell monolayer would necessarily enrich for EEC differentiation of stem cells. There is no description of which compounds (which includes H20), chemicals (which includes cadmium), cytokines (which includes erythropoietin and thrombopoietin), metabolites, bacteria, bacterial components, methylxanthines (which includes theacrine), prebiotics (which includes pectin), and food metabolites actually enhance formation of EECs over the scope of such broad claim language. Instead, the written description represents an invitation to the skilled artisan to figure out which species of the aforementioned defined merely functionally might possibly increases enrich for EECs formation in the claimed methods. For example, a garlic clove is a food that induces luminal fluid secretion but does it also enrich for EEC lineage formation in the claimed culturing and differentiating method?
The skilled artisan could not rely upon the disclosure in the specification such that the specification would sufficiently describe that Applicant was in possession of the broad genus of a compound or chemicals that induces luminal fluid secretion, increases the density of the EECs, or enhance formation of EECs in the recited live construct. The skilled artisan could not rely upon the disclosure in the specification such that the specification would sufficiently describe that Applicant was in possession of a compound(s) which enhances formation of EECs beyond a VIP, Wnt activator, or VIP combined with BIMU8.
In claim 19, there is reference to human stem cells that are gastrointestinal epithelial cells selected from esophagus (squamous), tongue, nasopharynx, oropharynx, laryngeopharynx, and pancreatic epithelial cells. However such specific hybrid cell types lack sufficient written description in the instant application and are not known in the prior art. Therefore, the skilled artisan could not rely upon the disclosure in the specification such that the specification would sufficiently describe that Applicant was in possession of human gastrointestinal tongue epithelial stem cells, human gastrointestinal nasopharynx epithelial stem cells, human gastrointestinal oropharynx epithelial stem cells, human gastrointestinal laryngeopharynx epithelial stem cells, or human gastrointestinal pancreatic epithelial stem cells for use in the claimed methods.
In conclusion, the skilled artisan could not rely upon the disclosure in the specification such that the specification would sufficiently describe that Applicant was in possession of the full scope of methods recited in any one of claims 1, 4-5, 19, 20, and 38, and thus by extension, those recited in claims 2-3, 7-12, 14-18, 21, and 39-40.
35 USC § 112(a), Enablement
Claims 1-5, 7-12, 14-21, and 37-40 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification does not enable any person, skilled in the art to which it pertains or with which it is most nearly connected to, to produce an enteroendocrine cell construct using any compound to increase the density of the EECs in the construct. In addition, the specification does not enable any person, skilled in the art to which it pertains or with which it is most nearly connected to, to produce an enteroendocrine cell construct using any human gastrointestinal epithelial stem cell that is a tongue (hypoglossal), nasopharynx (nasopharyngeal), oropharynx (oropharyngeal), laryngopharynx (laryngopharyngeal) or pancreatic epithelial cell.
Enablement is considered in view of the Wands factors (MPEP 2164.01 (a)). The court in Wands states that "Enablement is not precluded by the necessity for some experimentation such as routine screening. However, experimentation needed to practice the invention must not be undue experimentation. The key word is 'undue.' Not 'experimentation;" (Wands, 8 USPQ2d 104). Clearly, enablement of a claimed invention cannot be predicated on the basis of quantity of experimentation required to make or use the invention. "Whether undue experimentation is needed is not a single, simple factual determination, but rather is a conclusion reached by weighting many factual considerations." (Wands, 8 USPQ2d 1404).
The factors to be considered when determining whether there is sufficient evidence to support a determination that a disclosure does not satisfy the enablement requirement and whether any necessary experimentation required is “undue” include, but are not limited to:
(A) The breadth of the claims;
(B) The nature of the invention;
(C) The state of the prior art;
(D) The level of one of ordinary skill;
(E) The level of predictability in the art;
(F) The amount of direction provided by the inventor;
(G) The existence of working examples; and
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
Furthermore, the USPTO does not have laboratory facilities to test if an invention will function as claimed when working examples are not disclosed in the specification. Therefore, enablement issues are raised and discussed based on the state of knowledge pertinent to an art at the time of the invention. And thus, skepticism raised in the enablement rejections are those raised in the art by artisans of expertise.
All of the Wands factors have been considered with regard to the instant claims, with the most relevant factors discussed below.
Nature of the inventions:
The claims are directed to methods of generating an enteroendocrine cell (EEC) monolayer construct by culturing and differentiating stem cells exposed to one or more hormones and/or compounds that induces luminal fluid secretion, such as in claim 1 wherein some or all of the stem cells are human gastrointestinal epithelial stem cells that are hypoglossal, nasopharyngeal, oropharyngeal, laryngopharyngeal, or pancreatic stem cells (claim 19), or in claim 5 wherein the method comprises adding an agent that increases the density of EECs.
Breadth of the claims
Claim 5 is broadly directed to methods wherein any combination of chemical compounds, methylxanthines, prebiotics, hormones, receptor agonists, cytokines, bacteria or food metabolites, bacteria, or bacteria components increases the density of EECs.
Claim 19 is broadly directed to methods wherein stem cells are tongue (hypoglossal), nasopharynx (nasopharyngeal), oropharynx (oropharyngeal), laryngopharynx (laryngopharyngeal) or pancreatic human gastrointestinal epithelial stem cells. Thus, each of claims 1, 17, and 18 encompasses at least all of the aforementioned stem cell types and are similarly broad if not broader based on claim dependencies, such as encompassing iPSCs, embryonic stem cells, mesenchymal stem cells, etc.,and this extends to claims 2-4, 7-12, 14-16, 20-21, and 37-40 as well.
The state of the art:
The prior art teaches culturing human intestinal organoid-derived or mouse intestinal-derived crypt cells comprising stem cells (e.g., Lgr5+ EEC stem cells) as a monolayer confluently covering a permeable membrane in a Transwell® support structure will spontaneously differentiate into EEC lineages, e.g., chromogranin A+ EECs (Kozuka et al., Stem Cell Reports 9: 1976-90 (2017); IDS ref., at Figs. 1B-C, 3A-B, 4B, 4G and 5; pg. 1978, right col., last para., to pg. 1979, left col., 2nd para.). The prior art teaches adding cytokines like BMP-4 can increase EEC Chga marker expression (FIG. 2, pg. 1980, left col., 2nd para. to right col., 2nd para.). The prior art teaches setups for in vitro mucosal cell monolayer maintenance (e.g., using cells dissociated from gut organoids) having an air-mucus (liquid) interface, and that Notch inhibitor may induce mucus production in some models (Lock et al., Adv Drug Deliv Rev 124: 34-49. (2018) at Fig. 4; pg. 40, left col., 2nd para.).
The prior art does not teach any combination of methylxanthines, prebiotics, hormones, receptor agonists, bacteria or food metabolites, bacteria, or bacteria components that will enrich EECs in such a monolayer culture model. Also, the prior art does not teach any wherein the stem cells are tongue (hypoglossal), nasopharynx (nasopharyngeal), oropharynx (oropharyngeal), laryngopharynx (laryngopharyngeal) or pancreatic human gastrointestinal epithelial stem cells.
Thus, these aspects must be shown to a reasonable extent so that one of the ordinary skills in the art would be able to practice the invention without any undue burden being on such Artisan.
The amount of direction and guidance and working examples provided by Applicant:
The instant specification demonstrates that adding the Wnt activator (CHIR99021) increases the density of enterochromaffin (EC) enteroendocrine cells compared to no Wnt activator (FIG. 11), that adding vasoactive peptide (VIP) each increases the density of ChgA+ enteroendocrine cells compared to none at all (FIG. 3-4, Example 2), and the combination of VIP and BIMU8 increased the density of L-cells when using an air-liquid interface setup, especially when using higher noggin ratios (FIG. 8, Example 7). However none of these examples show a change in the total density of EECs generated by any method as the empirical data lacked a pan-EEC marker or markers for all EECs and all subtypes (at least 15 according to Example 6). Furthermore, the only working embodiments in the instant application are limited specifically to colonic stem cells (transverse colon) (Examples 1-8). Importantly the instant application is silent as to the type of MSC used in the working embodiments.
Nowhere does the specification provide any working example of an agent that increases the total density of EECs via a method recited in the claims. Regarding claim 19, the specification provides working examples only for wherein the stem cells are derived from a human colon, but there is no working example for stem cells from a small intestine, stomach, esophagus, tongue, nasopharynx, oropharynx, laryngeopharynx, or pancreatic epithelium.
Thus, there is no evidence in the instant application or the prior art of any agent or factor that enriches an EEC lineage or cell type for use in the specific method recited in claim 1 beyond a Wnt activator, VIP and/or BIMU8 and possibly a bone morphogenetic protein (BMP) (e.g., BMP-2 or BMP-4), EGF and/or a ROCK inhibitor and this evidence is limited to chromogranin A expressing EECs and/or L-cells. There is no evidence in the art or the instant application that the method recited in claim 1 would predictably produce a continuous monolayer cell construct enriched with EECs and subtypes of EECs when the starting stem cell is from a tongue, nasopharynx, oropharynx, laryngeopharynx, or pancreatic epithelium.
Extensive experimentation would be required to determine how to generate EEC monolayer constructs using stem cells that are solely hypoglossal, nasopharyngeal, oropharyngeal, laryngopharyngeal, or pancreatic stem cells. In summary, the claims are rejected under 35 U.S.C. 112(a) because the specification does not reasonably provide enablement to a person skilled in the art to which it pertains or with which it is most nearly connected to perform the claimed invention over the full scope of claim 5 or 19. Given the lack of working examples, the limited guidance provided in the specification, the lack of guidance in the prior art, and the broad scope of the claims, undue and/or unreasonable experimentation would have been required for one skilled in the art to use the claimed methods to produce the recited product.
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 1-5, 7-12, 14-21, and 37-40 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.
In claim 1, the term “substantially” regarding the covering of stem cells or continuity of the cell monolayer is a relative term which renders the claim indefinite because neither the claim nor the specification provides a standard for ascertaining the requisite degree of “substantialness” and, thus, one of ordinary skill in the art would not be reasonably appraised of the scope of these claim limitations. Claims 2-5, 7-12, 14-21, and 37-40 are included in this rejection for being dependent on indefinite claim 1.
In claims 1-2 and 7, the term “thin” regarding a layer of fluid is a relative term which renders the claim indefinite because neither the claims nor the specification provides a standard for ascertaining the requisite degree of “thinness” and, thus, one of ordinary skill in the art would not be reasonably appraised of the scope of this claim limitation. Claims 3-5, 8-12, 14-21, and 37-40 are included in this rejection for being dependent on indefinite claim 1.
In claim 8, the term “high” regarding a barrier integrity is a relative term which renders the claim indefinite because neither the claim nor the specification provides a standard for ascertaining the requisite degree of “highness” and, thus, one of ordinary skill in the art would not be reasonably appraised of the scope of this claim limitation. Claims 3-5, 8-12, 14-21, and 37-40 are included in this rejection for being dependent on an indefinite claim.
In claim 18, the phrasing of human gastrointestinal epithelial cells are tongue, nasopharynx, oropharynx, laryngopharynx, or pancreatic epithelial cells is incoherent because an epithelial cell cannot be both gastrointestinal and pancreatic, hypoglossal, nasopharynxal, oropharynxal, or laryngopharynxal.
Claim 38 recites wherein the compound (or compounds) comprises a chemical (chemicals) or bacteria. By ordinary meaning, all compounds are chemicals, and moreover, the term “compound” is not typically used to include complex multi-compound living cells like a bacterium. If the applicant acts as her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The instant application fails to do so.
In claim 39, the term “thick” regarding a mucus layer is a relative term which renders the claim indefinite because neither the claim nor the specification provides a standard for ascertaining the requisite degree of “thickness” and, thus, one of ordinary skill in the art would not be reasonably appraised of the scope of this claim limitation.
Claim Rejections - 35 USC § 112(d)
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.
Claims 14-16 are 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.
Each of claims 14, 15, and 16 is directed to an intended use of the product of the method of claim 1 and does not recite any active process step or limitation to any structure of claim1. When the phrase “used for screening” is considered, it is determined to merely represent intended use language for the claimed product which does not imply any additional limitation not expressly recited in claim 1. See MPEP 2111.02. Thus, none of claims 14-16 further limits the method of claim 1 either expressly or implicitly by any additional limitation not recited in claim 1.
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 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 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.
Claims 1-2, 4-5, 8-12, 14-21, 37-38, and 40 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Boccellato (WO2019/141824A1; IDS ref.).
The claims are interpreted as provided in a previous section.
Regarding claim 1, Boccellato discloses methods of producing long-term culture live cell constructs comprising epithelial cells (mucosoid culture) (pg. 1, 1st para.; pg. 8; pg. 20, lines 1-6), the method comprising: (a) culturing stem cells (pg. 10, lines 6-15 (e.g., from gastric or colon mucosa) pg. 59, lines 5-12, pg. 60, lines 1-7 and 22-28) that are capable of differentiating into enteroendocrine cells (EECs) on a cell support structure (thin matrix-coated solid semi-permeable filter) comprising both a first surface configured to be in contact with a liquid or an air-liquid interface and a second surface configured to be in contact with a liquid interface (pg. 10, last para., to pg. 11, 1st para.; FIG. 1; pg. 4, 1st para.), until at least a portion of the first surface of the cell support structure is substantially covered by cells (pg. 10, lines 18-20); and (b) differentiating the stem cells into EECs cells by exposing the stem cells to one or more hormones and/or compounds that induces luminal fluid secretion (e.g., wherein the medium comprises gastrin, a bacterium or bacteria components (Table 1; pg. 15, line 18-21; pg. 2, line 4)), and by maintaining a thin layer of fluid at the first surface of the cell support structure (FIG. 1), thereby generating an EEC-comprising live cell monolayer construct (polarized, mucus-secreting epithelial layer) comprising CHGA positive EECs, mucus-secreting EEC subtypes (e.g., MUC5+, MUC6+, and/or MUC2+) and EEC stem cells (LGR5+, β-catenin+, and CD44+) (Examples 1-2; FIG. 2, 8-10; pg. 19, lines 11-16, 18-23). Thus, the EECs in Boccellato are enriched to some extent or base level. Even if Boccellato does not expressly disclose the method produces an EEC-“enriched” cell monolayer, Boccellato discloses methods comprising the same EEC-enriching active steps recited in claim 1 and, thus, such an EEC-enriched live cell construct is generated by these methods of Boccellato absent evidence to the contrary.
Regarding claim 2, Boccellato discloses wherein the fluid comprises a liquid, e.g., fluid materials or mucus released by the mucosoid (FIG. 1; pg. 5, lines 23-25).
Regarding claims 4-5, Boccellato discloses wherein the hormone and compound gastrin is added to the culture medium (Table 1, pg. 33, line 16, Example 2). Although Boccellato does not disclose that the disclosed step of adding the hormone gastrin to the medium is expressly for (1) inducing luminal fluid liquid secretion or (2) increasing the density of EECs formed, these effects would inherently occur. Boccellato discloses a method comprising the same active steps as the claims, and, thus, the recited effects in claim 4 or 5 are expected to be produced inherently by performing such methods disclosed by Boccellato.
Similarly, none of claims 8-12 and 14-16 recites any active process step or implied limitation to the method of claim 1. Thus, Boccellato’s disclosure of a method comprising the same active steps as claim 1, anticipates claims 8-12 and 14-16.
Regarding claims 17-19, Boccellato discloses wherein the stem cells are derived human gastrointestinal epithelia from gastric or colon tissues (Examples 1-2).
Regarding claim 20, Boccellato discloses wherein the culturing medium comprises the compound CHIR99021, which enhances formation of EECs (Table 1, Examples 1-2).
Regarding claims 21 and 40, Boccellato discloses wherein the culturing medium comprises the Wnt signaling activator CHIR99021 and the Wnt signaling enhancers WNT3A and R-spondin1 (Example 2).
Thus, Boccellato anticipates the claimed invention.
Claim 39 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Allbritton (US20210395661A1; IDS ref).
Regarding claim 39, Allbritton discloses methods comprising (a) culturing stem cells that are capable of differentiating into EECs on a cell support structure comprising, a first surface configured to be in contact with a liquid or an air-liquid interface and a second surface configured to be in contact with a liquid interface, until at least a portion of the first surface of the cell support structure is substantially covered by the stem cells; (b) differentiating the stem cells into EECs cells by exposing the stem cells to one or more hormones and/or compounds that induces luminal fluid secretion ([0009]-[0010]; [0047]; [0082]), such as a hypertonic solution or medium comprising a hormone compound (e.g., vasoactive intestinal peptide, serotonin, 5-HT, substance P, BMP, gastrin, cholecystokinin, secretin, ghrelin, motilin, GIP, leptin, GLP, somatostatin, and/or neurotensin), and adding a hypertonic medium to the stem cells to stimulate luminal fluid secretion (hypersecretion) to enhance the creation of a mucus layer ([0126]; [0081]-[0082]), and by maintaining a layer of fluid at the first surface of the cell support structure (e.g., at a depth of 0.001 mm), thereby generating an EEC-enriched live cell construct comprising a substantially continuous and EEC-enriched cell monolayer comprising EECs and subtypes of EECs and a thick mucus layer ([0061]), e.g., as much as 1 cm thick ([0057]). Thus, Allbritton anticipates the claimed invention.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-2, 4-5, 7-12, 14-21, 37-38, and 40 are rejected under 35 U.S.C. 103 as being unpatentable over Boccellato (WO2019/141824A1; IDS ref.) in view of Sontheimer (Sontheimer-Phelps, A., et al., Cell Mol Gastroenterol Hepatol 9: 507-26 (2020)).
The claims are interpreted as set forth in a previous section.
As set forth fully above, anticipates claims 1-2, 4-5, 8-12, 14-21, 37-38, and 40, and thus, the subject matter of claims 1-2, 4-5, 8-12, 14-21, 37-38, and 40 is rendered obvious over Boccellato.
Regarding claims 3 and 7, Boccellato does not teach maintaining the fluid layer at the first surface in a range of about 0.001 mm to about 10 mm above the cell monolayer or maintaining the fluid layer at the first surface using a microfluidic flow step.
However Sontheimer teaches microfluidic setups for intestine or colon tissue polarized epithelial monolayer culture “on-a-chip” that resembles in vivo tissues made from differentiating primary epithelial stem cells (Abstract, pg. 508, right col., last para.; Fig. 2-3; pg. 518, right col., 1st para.). Sontheimer teaches the microfluidic colonic monolayer setup maintains epithelial stem cell proliferation while providing differentiated cells that reconstitutes a mucus bilayer and can be used to assay changes in mucus physiology in response to stimuli (pg. 513, right col., 2nd para.; Fig. 7, 9-10). Sontheimer teaches wherein the fluid layer on the first surface is constrained to 1 mm (1000 µm) (pg. 2020, left col., 2nd para.) and the total height of the mucus layer is measured to be at least 300-600 µm (Fig. 8, Fig. 9E).
It would have been prima facie obvious to one of ordinary skill in the art before the effective time of filing to use a microfluidic setup taught by Sontheimer to perform a method of Boccellato wherein the fluid layer above the first surface is 1 mm or less as in Sontheimer. One of ordinary skill in the art without the goal of replicating natural gut epithelia and its mucus layer would be motivated by Sontheimer showing microfluidic culture achieves such close resemblance to human colonic epithelia and mucus layers and associated apparatus for assaying changes in mucus physiology (Fig. 7A). Furthermore Boccellato teaches using its methods for human medical applications, growing human cells and tissues recapitulating natural ones, investigating responses to stimuli and mimicking pathological conditions, e.g., for screening diagnostic or therapeutic agents (pg. 3, lines 1-11; pg. 21, line 20, to pg. 22, line 4; pg. 26, line 25, to pg. 30 line 2; pg. 1, lines 28-29).
Thus, the claimed invention as a whole is prima facie obvious prior to the earliest effective filing date in the absence of evidence to the contrary.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-2, 4-5, 8-12, 14-21, 37-38, and 40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 and 11-24 of US Patent 11,193,110 (reference patent) as evidenced by Boccellato (WO2019/141824A1; IDS ref.).
Although the claims at issue are not identical, they are not patentably distinct from each other because claims 2-4 and 12-14 of the reference application teaches a live cell construct comprising a cell support structure surface and a monolayer of primary epithelial cells (e.g., intestinal or stomach gastrointestinal cells) on top of the surface wherein the cells comprise progenitor and/or stem cells as well as differentiated cells and methods of making this construct.
While the reference claims do not expressly teach making this construct by differentiating the cells into EECs by exposing to an agent that induces luminal fluid secretion, Boccellato teaches one way to make a gastrointestinal epithelial cell monolayer construct in vitro that is self-renewing is to culture and differentiate epithelial stem cells derived from human stomach or intestine on a support membrane (synthetic polymer (Transwell)) by exposing the stem cells to the hormone gastrin and maintaining a thin layer of fluid above the first surface of the cell support membrane (FIG. 1), resulting in more EEC subtypes (e.g., CHGA+ EECs) (Examples 1-2; FIG. 2, 8-10; pg. 19, lines 11-16, 18-23; pg. 1, 1st para.; pg. 8; pg. 20, lines 1-6; pg. 10, lines 6-15; pg. 59, lines 5-12, pg. 60, lines 1-7 and 22-28; Table 1; pg. 15, line 18-21; pg. 2, line 4). Furthermore, reference claim 7 teaches contacting the cell monolayer with a short chain fatty acid, which is capable of inducing luminal fluid secretion. It would have been obvious to one of ordinary skill in the art to make the construct of the reference claims using such methods taught by Boccellato for maintaining self-renewal for at least 24 hours because Boccellato teaches using its methods for 6+ month cultures (FIG. 8, Example 1; pg. 16, lines 28-29; pg. 52, lines 23-25) and better recapitulating human cells and tissues in vitro, such as for research purposes (pg. 3, lines 1-11; pg. 21, line 20, to pg. 22, line 4; pg. 26, line 25, to pg. 30 line 2; pg. 1, lines 28-29).
Regarding instant claim 2, Boccellato teaches wherein the fluid comprises a liquid, e.g., fluid materials or mucus released by the monolayer (FIG. 1; pg. 5, lines 23-25). Regarding instant claims 4-5, Boccellato teaches wherein the hormone and compound gastrin is added to the culture medium (Table 1, pg. 33, line 16, Example 2). Although Boccellato does not disclose that the disclosed step of adding the hormone gastrin to the medium is expressly for (1) inducing luminal fluid liquid secretion or (2) increasing the density of EECs formed, these effects would inherently occur. As none of instant claims 8-12 and 14-16 recites any active process step or implied limitation to the method of instant claim 1, the method of making the construct of the reference claims taught by Boccellato renders obvious the subject matter of claims 8-12 and 14-16. Regarding claims instant 17-19, Boccellato teaches wherein the stem cells are derived human gastrointestinal epithelia from gastric or colon tissues (Examples 1-2). Regarding instant claim 20, Boccellato teaches wherein the culturing medium comprises the compound CHIR99021, which enhances formation of EECs (Table 1, Examples 1-2). Regarding instant claims 21 and 40, reference claim 7 teaches wherein the culturing medium comprises the Wnt signaling enhancers WNT3A and R-spondin.
Claims 1-5, 8-12, 14-21, and 37-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 and 7-14 of US Patent 12,410,391 (reference patent).
Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of the reference application teaches a method of making a live cell construct with a constitutive mucus layer by culturing and differentiating stem cells, the construct comprising a cell support structure surface (porous membrane) and a confluent monolayer of cells having a basal side and a luminal side wherein the cells comprise mucus-producing cells and the mucus layer is impenetrable to 1 micron diameter objects, whereby differentiation comprises exposure to VIP, such as using stem cells that are intestinal epithelial or gastric (reference claims 9-10). Reference claim 1 teaches contacting the cell monolayer with VIP, which induces luminal fluid secretion. Furthermore, reference claim 8 teaches contacting the cell monolayer with a medium comprising any hormone or chemical additive, such as butyrate, bone morphogenetic protein (BMP), forskolin, guaifenesin, carbachol, prostaglandins, phorbol 12-myristate 13-acetate, or histamine. While the reference claims do not expressly teach making this construct by culturing and differentiating stem cells into EECs by exposing to an agent that induces luminal fluid secretion, this effect would inherently occur and enrich the cell layer for EECs.
Regarding instant claim 2, reference claim 1 teaches a liquid medium at the luminal surface. Regarding instant claim 3, reference claim 1 teaches maintaining a fluid medium at a height of about 0.001 mm to about 10 mm above the luminal surface. Regarding instant claims 4-5, reference claim 1 teaches wherein the hormone and compound VIP is added to the culture medium. Although the reference claims do not disclose that the disclosed step of adding the hormone to the medium is expressly for (1) inducing luminal fluid liquid secretion or (2) increasing the density of EECs formed, these effects would inherently occur. As none of instant claims 8-12 and 14-16 recites any active process step or implied limitation to the method of instant claim 1, the method of making the construct of the reference claims renders obvious the subject matter of claims 8-12 and 14-16. Regarding claims instant 17-19, reference claim 9 teaches wherein the stem cells are intestinal or gastric stem cells. Regarding instant claim 20, reference claims 1 and 8 teach adding VIP and any hormone or chemical additive, such as butyrate, bone morphogenetic protein (BMP), forskolin, guaifenesin, carbachol, prostaglandins, phorbol 12-myristate 13-acetate, or histamine. Regarding instant claims 21 and 40, reference claim 8 teaches wherein the culturing medium comprises the Wnt signaling enhancer bone morphogenetic protein (BMP) or forskolin. Regarding instant claim 39, reference claim 28 teaches adding to the luminal side medium a physiologically hypertonic salt solution, which would inherently induces a thicker mucus layer.
Claims 1-2, 4-5, 8-12, 14-21, 37-38, and 40 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 32-36 and 38 of copending Application No. 18/530,761 (reference application) in view of Boccellato.
Although the claims at issue are not identical, they are not patentably distinct from each other because claims 32-34 of the reference application teaches a live cell construct comprising a cell support structure surface and a monolayer of primary epithelial cells (e.g., intestinal or stomach gastrointestinal cells) on top of the surface wherein the cells comprise progenitor and/or stem cells as well as differentiated cells. While the reference claims do not expressly teach making this construct by differentiating the cells into EECs by exposing to an agent that induces luminal fluid secretion, Boccellato teaches one way to make a gastrointestinal epithelial cell monolayer construct in vitro that is self-renewing is to culture and differentiate epithelial stem cells derived from human stomach or intestine on a support membrane (synthetic polymer (Transwell)) by exposing the stem cells to the hormone gastrin and maintaining a thin layer of fluid above the first surface of the cell support membrane (FIG. 1), resulting in more EEC subtypes (e.g., CHGA+ EECs) (Examples 1-2; FIG. 2, 8-10; pg. 19, lines 11-16, 18-23; pg. 1, 1st para.; pg. 8; pg. 20, lines 1-6; pg. 10, lines 6-15; pg. 59, lines 5-12, pg. 60, lines 1-7 and 22-28; Table 1; pg. 15, line 18-21; pg. 2, line 4). Furthermore, reference claim 38 teaches contacting the cell monolayer with a microbe, which is capable of inducing luminal fluid secretion. It would have been obvious to one of ordinary skill in the art with the goal of making a gastrointestinal construct comprising both stem cells and differentiated cells to make the construct of the reference claims using methods taught by Boccellato as an already proven method for making such a human gastrointestinal construct.
Regarding instant claim 2, Boccellato teaches wherein the fluid comprises a liquid, e.g., fluid materials or mucus released by the monolayer (FIG. 1; pg. 5, lines 23-25). Regarding instant claims 4-5, Boccellato teaches wherein the hormone and compound gastrin is added to the culture medium (Table 1, pg. 33, line 16, Example 2). Although Boccellato does not disclose that the disclosed step of adding the hormone gastrin to the medium is expressly for (1) inducing luminal fluid liquid secretion or (2) increasing the density of EECs formed, these effects would inherently occur. As none of instant claims 8-12 and 14-16 recites any active process step or implied limitation to the method of instant claim 1, the method of making the construct of the reference claims taught by Boccellato renders obvious the subject matter of claims 8-12 and 14-16. Regarding claims instant 17-19, Boccellato teaches wherein the stem cells are derived human gastrointestinal epithelia from gastric or colon tissues (Examples 1-2). Regarding instant claim 20, Boccellato teaches wherein the culturing medium comprises the compound CHIR99021, which enhances formation of EECs (Table 1, Examples 1-2). Regarding instant claims 21 and 40, Boccellato teaches wherein the culturing medium comprises the Wnt signaling activator CHIR99021 and the Wnt signaling enhancers WNT3A and R-spondin1 (Example 2).
This is a provisional nonstatutory double patenting rejection because the reference application claims have not in fact been patented.
Claims 1-5, 8-12, 14-21, and 37-40 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 16-20, 23-24, and 27-29 of copending Application No. 19/275,031 (reference application) in view of Boccellato.
Although the claims at issue are not identical, they are not patentably distinct from each other because claim 16 of the reference application teaches a live cell mucus layer construct comprising a cell support structure surface and a monolayer of cells having a basal side and a luminal side with an air-liquid interface wherein the cells comprise mucus producing cells. While the reference claims do not expressly teach making this construct by culturing stem cells to substantially cover the surface and differentiating the cells into EECs by exposing to an agent that induces luminal fluid secretion, Boccellato teaches one way to make an in vitro a cell monolayer mucus construct is to culture and differentiate epithelial stem cells derived from stomach or colon by exposing the stem cells to the hormone gastrin and maintaining a thin layer of fluid at the first surface of the cell support structure (FIG. 1) resulting in more EEC subtypes (e.g., CHGA+ EECs) (Examples 1-2; FIG. 2, 8-10; pg. 19, lines 11-16, 18-23; pg. 1, 1st para.; pg. 8; pg. 20, lines 1-6; pg. 10, lines 6-15; pg. 59, lines 5-12, pg. 60, lines 1-7 and 22-28; Table 1; pg. 15, line 18-21; pg. 2, line 4). Furthermore, reference claim 23 teaches contacting the cell monolayer with a bacterium, which induces luminal fluid secretion, and reference claim 28 teaches contacting the cell monolayer with a hormone, a chemical additive, a food additive, a bacterial metabolite, and/or a physiologically hypertonic salt solution, such as butyrate, which induces luminal fluid secretion. It would have been obvious to one of ordinary skill in the art with the goal of making a gastrointestinal mucus construct to make the construct of the reference claims using methods taught by Boccellato to better recapitulate human gastrointestinal cells and tissues in vitro, such as for research purposes (pg. 3, lines 1-11; pg. 21, line 20, to pg. 22, line 4; pg. 26, line 25, to pg. 30 line 2; pg. 1, lines 28-29).
Regarding instant claim 2, Boccellato teaches wherein the fluid comprises a liquid, e.g., fluid materials or mucus released by the mucosoid (FIG. 1; pg. 5, lines 23-25). Regarding instant claim 3, reference claims 19-20, 27 and 29 teach maintaining a luminal side liquid depth of 0.001-10 mm, such as 1-100 microns. Regarding instant claims 4-5, Boccellato teaches wherein the hormone and compound gastrin is added to the culture medium (Table 1, pg. 33, line 16, Example 2). Although Boccellato does not disclose that the disclosed step of adding the hormone gastrin to the medium is expressly for (1) inducing luminal fluid liquid secretion or (2) increasing the density of EECs formed, these effects would inherently occur. As none of instant claims 8-12 and 14-16 recites any active process step or implied limitation to the method of instant claim 1, the method of making the construct of the reference claims taught by Boccellato renders obvious the subject matter of claims 8-12 and 14-16. Regarding claims instant 17-19, Boccellato teaches wherein the stem cells are derived human gastrointestinal epithelia from gastric or colon tissues (Examples 1-2). Regarding instant claim 20, Boccellato teaches wherein the culturing medium comprises the compound CHIR99021, which enhances formation of EECs (Table 1, Examples 1-2). Regarding instant claims 21 and 40, Boccellato teaches wherein the culturing medium comprises the Wnt signaling activator CHIR99021 and the Wnt signaling enhancers WNT3A and R-spondin1 (Example 2). Regarding instant claim 39, reference claim 28 teaches adding to the luminal side medium a physiologically hypertonic salt solution, which would inherently induces a thicker mucus layer.
This is a provisional nonstatutory double patenting rejection because the reference application claims have not in fact been patented.
Conclusion
No claim is allowed.
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/ERIC J ROGERS/Examiner, Art Unit 1638
/Tracy Vivlemore/Supervisory Primary Examiner, Art Unit 1638