DETAILED ACTION
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 .
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. The present application is drawn from PCT/US2021/039672, filed 6/29/2021; and claims benefit under 35 U.S.C. 119(e) to U.S. Provisional application 63/045646, filed 6/29/2020.
While the provisional application (63/045646) provides support for humanized variants of the anti-CSPG4 binding construct, and their use in a CAR (of claims 1-8); the provisional application does not provide support for the additional limitations of the CAR or the expression cassette encoding the CAR of claims 9-20. For example, the provisional application does not teach or contemplate a CAR expression cassette comprising a transcriptional activator (i.e. LEF1; of claims 9-13), or a FMDA 2A sequence (of claims 12 and 17), or the inclusion of “up to three” additional protein coding sequences (of claim 10), or wherein one such sequence encodes a growth factor (of claims 15-16), or comprising a spacer domain (claim 18), or wherein the 4-1BB is fused in-frame to a CD3ζ (claim 19), or comprising a shRNA targeting a MHC gene (claim 20). However, these limitations were disclosed in the PCT/US2021/039672 application.
Therefore, the priority date of claims 1-8 is 6/29/2020, corresponding to the provisional application 63/045646; and the priority date of claims 9-20 is 6/29/2021, corresponding to the filing date of the PCT/US2021/039672 application.
Status of Claims
Claims 1-20 are pending and are being examined on the merits.
Claim Objections
Claim 14 is objected to because of the following informalities: Claim 14 has a grammatical error. The claim recites “wherein said LEF1 selected from…”. It should read that LEF1 is selected from…”. Appropriate correction is required.
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.
Claims 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites wherein the CSPG4 binding member comprises a light chain framework region 3 (FR3) selected from SEQ ID NOs: 226 to 249 and wherein the FR4 is selected from SEQ ID NOs: 250 to 255; claim 2 recites wherein the heavy chain FR3 is selected from SEQ ID NOs: 354-360 and wherein the FR4 is selected from SEQ ID NOs: 361-362. Instant SEQ ID NO: 249 is FGGGTKLEIK. It is known in the art that VL FR4 end with KLEIK sequences, thus SEQ ID NO: 249 is an L-FR4, and not an FR3. Similarly, the “FR3” of SEQ ID NO: 360 is WGQGTLVTVS, and the “FR4” of SEQ ID NOs: 361 is WGQGTTVTVSS and SEQ ID NO: 362 is WGQGTTATVSS. Conversely, the alternate “FR3” of SEQ ID NO: 259 is RFAISLETSARTVYLQINNLRNEDTATYFCFS. Thus, SEQ ID NO: 360 is an H-FR4, and not an FR3. This mis-representative categorization of the cited framework sequences results in a claim that is insolubly ambiguous. A skilled artisan would be confused by the inclusion of FR4 sequences being listed as FR3 sequences, and it would be unclear how to interpret the structure of the claimed CSPG4 binding member. As the metes and bounds of the claim are unclear, claims 1-2 are rejected for indefiniteness. As claims 3-20 ultimately depend from claim 1, and they do not rectify the issue, they are also rejected. Similarly, claim 3 recites wherein the VL is selected from SEQ ID NOs: 67-109 and the VH is selected from SEQ ID NOs: 110-152. However, SEQ ID NO: 109 is clearly a VH, and is not a VL; SEQ ID NO: 109 comprises the HCDRs of instant SEQ ID NOs: 4-6. While the error in properly categorizing the listed sequences in their corresponding FR1-4 or VH/VL designation are cited, specifically, for claims 1 and 3, not all sequence listings have been checked and other instances of mis-designated FR sequences may be present in the claims.
Claims 7-8 and 13-14 cite required sequences of the CAR expression construct, but do not provide the sequences that are required. For example, claim 13 recites the transcriptional activator is selected from LEF1 (Gene ID 51176). Gene ID 51176 is reference to a gene and not a sequence, whereby the gene may encode different isoforms of the protein. That is, it is unclear whether Gene ID 51176 is an example of a generic LEF1 coding sequence, or if the coding sequence is limited to the Gene ID. Further, some of the Gene IDs are dynamic, such that they get updated from time to time; such an update would change the gene structure and therefore cannot be relied upon to provide the structural limitations of the invention. Claim 14 recites wherein said LEF1 is selected from the group consisting of Reference Sequence (RefSeq) ID NOs: NP_057353.1, NP_001124185.1 and NP_001124186.1. Are these sequences the same as GENE ID 51176; are they sequences that further limit GENE ID 51176, as claim 14 depends from claim 13? The claims are drawn to CAR expression constructs, which incorporate specific nucleotide sequences that define the structure of the invention; thus the claims must describe precisely which sequences are required. Claim 7 recites, for example, “CD-3ζ (Gene ID: 919; 12503 CD247)”. Are all these required sequences of the invention; are they alternatives? As the claims recite genes rather than sequences, and in some cases multiple genes, it is unclear what the required sequences of the expression constructs are, or to what degree alternative isoforms or fragments thereof meet the claim limitations. As the metes and bounds of the required expression construct sequence encoding each of the said proteins are unclear, claims 7-8 and 13-14 are indefinite as to the structure of the claimed expression construct. If applicants do not intend for the Gene ID NOs to limit the structure of the claimed proteins, applicants may amend the claims to remove reference to Gene ID NOs for clarity; for example as in claim 16.
Claims 19-20 recite “The chimeric antigen receptor expression construct of Claim [00128]”. As all the limitations of a reference claim are incorporated into a dependent claim, and claims 19-20 are recited as dependent claims, but do not disclose which claim(s) they depend from, it is unclear what limitations are required of the CAR construct of claims 19-20. For example, claim 9 requires the CAR expression construct to further comprise a transcriptional activator in the Wnt signaling pathway. Do the CAR expression constructs of claims 19-20 also require the transcriptional activator, or are limitations such as the inclusion of a shRNA targeting a MHC class I or II gene independent from, and thus do not require, the transcriptional activator? As the metes and bounds of the claims are unclear, the skilled artisan cannot be appraised on whether or not they would be infringing on the scope of the claims. Thus, claims 19-20 are rejected for indefiniteness.
Objections to Specification
35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, requires the specification to be written in “full, clear, concise, and exact terms.” The specification is replete with terms which are not clear, concise and exact. The specification should be revised carefully in order to comply with 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112. Examples of some unclear, inexact or verbose terms used in the specification are: The specifications describe the VL-FR3 is selected from the group consisting of SEQ ID NOs: 226 to 249 and the VL-FR4 is selected from the group consisting of SEQ ID NOs: 250 to 255 (pg. 5, para. 0012). The specifications also describe the VH-FR3 is selected from the group consisting of SEQ ID NOs: 354-360 and the VH-FR4 is selected from the group consisting of SEQ ID NOs: 361 to 382 (pg. 5, para. 0013). As described above, SEQ ID NO: 249 is a VL-FR4, and not a VL-FR3; and SEQ ID NO: 360 is a VH-FR4 and not a VH-FR3. The specifications also describe the VL being selected from SEQ ID NOs: 61-109 and the VH being selected from SEQ ID NOs: 110-152 (pgs. 6-7, para. 0017). However, SEQ ID NO: 109 is a VH, and not a VL, as described above. It is noted that while paragraphs 0012-0013 and 0017 demonstrate the inexact terminology, the referenced terminology is repeated on numerous occasions throughout the specifications. It is also noted, that the sequences listed under the VL-FR1 and VL-FR2, as well as the sequences listed under the VH-FR1 and VH-FR2 have not been checked for mis-labeling of SEQ ID NOs into the incorrect FR designation, and may also contain errors of the same kind. Applicants are required to amend the specifications to properly label which SEQ ID NOs fall into the proper designations of VL or VH, or FRs 1-4.
Claim Interpretation
Claims 1 and 4 are being interpreted such that the sequence of SEQ ID NO: 249 corresponds to an acceptable VL-FR4 sequence, as the sequence of SEQ ID NO: 249 is FGGGTKLEIK, which is known in the art (see below) as an example of a VL-FR4 sequence, and not a VL-FR3 sequence. Claim 3 is being interpreted such that the sequence of SEQ ID NO: 109 is a VH sequence, which corresponds with, and is included as, a VH, of the grouping of SEQ ID NOs: 110-152.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 3-5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Horwitz et al., (US Patent 8318162; issued 11/27/2012).
Horwitz teaches anti-high molecular weight melanoma associated antigen (HMW-MAA) antibodies (abstract). Horwitz teaches HMW-MAA is also known as CSPG4 (col. 1, lines 41-42). Horwitz teaches that murine IND-1 and IND-2 monoclonal antibodies (i.e. anti-CSPG4) are known in the art, and that 73 low risk and 29 moderate risk positions within the heavy and light chain variable regions have been identified in the art as candidates for change in order to make the murine antibody humanized (col. 35, lines 20-40). Horwitz then teaches the IND-1 or IND-2 antibody sequences may be aligned to a human sequence, such as a kappa-4 consensus sequence, and changes may be made at one or more of the low or moderate risk amino acid residues for human-engineering of the murine IND-1 or IND-2 antibodies (col. 35, lines 42-65). Specifically, Horwitz teaches the antibody may compete with binding of an antibody comprising a light chain variable region comprising the amino acid sequence of SEQ ID NO: 7 and a heavy chain variable region comprising the amino acid sequence of SEQ ID NO: 10 (col. 5, lines 39-45); whereby the amino acid sequences of the VL and VH are taught in Tables 3 and 4 (col. 37). The VL of Horwitz SEQ ID NO: 7 is 100% identical to the VL of instant SEQ ID NO: 67 and the VH of Horwitz SEQ ID NO: 10 is 100% identical to instant SEQ ID NO: 114. Thus, the VL/VH of Horwitz SEQ ID NOs: 7 and 10 comprise the LCDRs 1-3 and HCDRs 1-3 of instant SEQ ID NOs: 1-6, respectively; as well as the VL FR1-4 and VH FR1-4 with 100% identity. Specifically, the VL of Horwitz SEQ ID NO: 7 comprises the FR1-4 of instant SEQ ID NOs: 157, 224, 226 and 249, respectively; and the VH of Horwitz SEQ ID NO: 10 comprises the FR1-4 of instant SEQ ID NOs: 333, 352, 359 and 381, respectively. Horwitz also teaches nucleic acids encoding the antibodies, as well as vectors and host cells comprising the nucleic acids (col. 24, lines 54-57).
Therefore, Horwitz anticipates the anti-CSPG4 binding members of instant claims 1 and 3, as well as the nucleic acids of instant claims 4-5.
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.
Claims 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Horwitz et al., (US Patent 8318162; issued 11/27/2012) and Dotti et al., (US 20180251568; published 11/6/2018).
The Dotti et al. reference names an inventor listed on the instant application; however, it was published more than one year before the earliest effective filing date of the instant application and therefore it qualifies as prior art under 35 U.S.C. 102(a)(1).
The reasons why claims 1 and 3-5 are anticipated by Horwitz are described above. Specifically, Horwitz teaches human engineered anti-CSPG4 antibodies comprising the VL CDRs of instant SEQ ID NOs: 1-3 and the VH CDRs of instant SEQ ID NOs: 4-6, as well as the corresponding framework regions VL FR1-4 of SEQ ID NOs: 157, 224, 226 and 249, respectively, as described above. However, Horwitz does not teach wherein the VH FR1-4 comprises a FR1 of SEQ ID NOs: 347-349, a FR2 of SEQ ID NOs: 350-353, a FR3 of SEQ ID NOs: 354-360 and a FR4 of SEQ ID NOs: 361-362, of instant claim 2.
Dotti et al. teaches chimeric antigen receptors (CAR) that target CSPG4, and methods of use (abstract). Dotti teaches the methods are for treating CSPG4, which is also known as HMW-MAA (pg. 4, para. 0037), and wherein the CAR comprises an scFv of 763.74 (pg.1, para. 0008; pg. 4, para. 0034). Dotti teaches the scFv of 763.74 comprises the amino acid sequence of SEQ ID NO: 2 (pg. 4, para. 0041). The scFv of Dotti SEQ ID NO: 2 comprises a signal peptide, a VH, a (G4S)n linker, and a VL. The VH of SEQ ID NO: 2 comprises the HCDRs 1-3 of instant SEQ ID NOs: 4-6, respectively, and the FR1-4 of instant SEQ ID NOs: 347, 352, 359 and 361, respectively.
It would have been obvious to one of skill in the art to utilize the VH of 763.74 with the VL of Horwitz in the anti-CSPG4 antibodies of Horwitz. One would have been motivated to do so in order to human engineer the murine anti-CSPG4 antibodies as taught by Horwitz et al. There would have been a reasonable expectation for success given that both the antibodies of Horwitz and the antibody 763.74 are anti-CSPG4 antibodies comprising the identical VL/VH CDRs, and wherein the framework regions have been humanized in alternative embodiments; therefore the VH of Horwitz and the VH of 763.74 are substitutable in a human engineered anti-CSPG4 binding construct, as taught by Horwitz et al. Thus, the invention was prima facie obvious to one of skill in the art at the time the invention was made.
Specifically, the combination anti-CSPG4 antibody of Horwitz and Dotti, comprising the VL of Horwitz SEQ ID NO: 7 and the VH from Dotti SEQ ID NO: 2, would therefore comprise the CDRs of SEQ ID NOs: 1-6, the VL FR1-4 of instant SEQ ID NOs: 157, 224, 226 and 249, respectively, and the VH FR1-4 of instant SEQ ID NOs: 347, 352, 359 and 361, respectively. Therefore, the combination anti-CSPG4 antibody of Horwitz and Dotti make obvious instant claim 2.
Further, Dotti teaches the anti-CSPG4 scFv may be used in a CAR targeting CSPG4 (pg. 2, para. 0012; re. claim 6), wherein the CAR comprises a transmembrane domain of CD8α (pg. 2, para. 0013; re. claim 7) and an endodomain of CD28 or 4-1BB (pg. 2, para. 0018; re. claim 8). Thus, the combination of Horwitz and Dotti make obvious instant claims 6-8.
Claims 1, 6-14 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Horwitz et al., (US Patent 8318162; issued 11/27/2012) in view of Dai et al., (WO 2020/043152; published 5/3/2020), as evidenced by Chng et al., (mAbs, 7:2, 2015), and further in view of Tantalo et al., (Journal for Immunotherapy of Cancer, published 5/2021) and Wang et al., (PLOS One, published 11/18/2015).
The anti-CSPG4 antibody, or antigen binding scFv, of Horwitz, comprising the VL of SEQ ID NO: 7 and the VH of SEQ ID NO: 10, which are 100% identical to the VL of instant SEQ ID NO: 67 and the VH of instant SEQ ID NO: 114 (of instant claim 3), and therefore comprise the CDRs 1-6, the VL FRs 1-4, and the VH FRs 1-4 (of instant claim 1), is described above.
Dai et al. teaches the art of CARs and nucleic acids encoding the CARs for their expression in T cells (abstract). Dai teaches adoptive T cell immunotherapy encompasses T lymphocytes engineered to express a CAR, and that such CAR-T cells have shown great promise in treating hematological malignancies. Further, Dai teaches CARs commonly contain 3 modules: an extracellular target binding moiety, a transmembrane domain and an intracellular signaling domain; whereby the extracellular target binding moiety binds to a target tumor antigen resulting in a specific anti-tumor response in a MHC-independent manner (pg. 1, para. 0004). Dai teaches the CARs of the invention may comprise a binding domain directed to mesothelin, follicle-stimulating hormone receptor (FSHR) or dnTGFβRII. Thus Dai teaches the binding domain of a CAR may be substitutable with alternative antigen-binding domains which may be directed at various antigens for the purpose of directing the engineered CAR-T cells to the target.
It would have been obvious to one of skill in the art to utilize the anti-CSPG4 scFv binding domain of Horwitz in the CAR constructs of Dai et al. One would have been motivated to do so given that targeting CSPG4 is expressed on the majority of melanoma cells and targeting CSPG4 may be a target in the treatment of cancer, as taught by Horwitz et al. There would have been a reasonable expectation for success given that CARs can be generated from an antibody, or comprising the antigen binding domain from an antibody, as taught by Dai et al. Thus, it would have been prima facie obvious to use the anti-CSPG4 scFv binding domain of Horwitz in the CAR constructs of Dai et al.
Regarding claims 1 and 6-8, as Horwitz teaches the anti-CSPG4 binding construct of instant claim 1, and Dai teaches a CAR comprising a transmembrane domain and an endodomain (intracellular domain), the combination of Horwitz and Dai make obvious instant claim 6. Further, Dai teaches the CAR may comprise a transmembrane domain selected from CD8α or CD28 (pg. 11, para. 0035) and an intracellular domain selected from CD3ζ (pg. 12, para. 0036); thus the combination CAR of Horwitz and Dai make obvious instant claims 7-8.
Dai further teaches the construct encoding the CAR may comprise nucleic acids encoding additional proteins beyond the CAR, which can be separated by a sequence encoding a cleavage recognition sequence. Dai teaches, “this allows the components of the construct to be expressed as a single fusion which undergoes intracellular cleavage to generate the two or more separate proteins,” (pg. 25, para. 00114). Dai teaches suitable cleavage recognition sequences are well known in the art and include, but are not limited to, P2A (pg. 25, para. 00114). Dai provides an example of such a construct, whereby the CAR and additional proteins are encoded in a single construct, and whereby the encoded proteins, beyond the CAR, comprise a 2A peptide sequence such that they are cleaved off of the CAR intracellularly, in Figs. 4 and 5. Dai teaches an embodiment that comprises the CAR, an additional anti-FSHβ CAR and a dnTGFβRII protein in Fig. 6I.
Regarding the 2A peptide, Chng (mAbs 7:2, 2015) teaches a comparison of different 2A peptides on a single cassette, whereby the 2A peptides allow control of LC and HC ratios (abstract). Chng teaches foot-and-mouth disease virus (F2A), as well as E2A, P2A and T2A have all been widely used in biomedical research (pg. 404, col. 1, paras. 2-3). Thus, Chng provides evidence that P2A, of Dai, and F2A of instant claims 12 and 17, were known in the art for the purpose of encoding proteins which may be separable, via cleavage, post-translationally, and that the various species of 2A peptides are substitutable based on routine optimization by the skilled artisan.
Thus, the combination of Horwitz and Dai make obvious an anti-CSPG4 CAR, wherein the construct encoding the CAR also encodes two or more additional proteins, and wherein the sequences encoding the additional proteins are separated from the sequence encoding the CAR by 2A peptides, such that the additional proteins are cleaved post-translation. However, neither Horwitz nor Dai teach whereby one of the additional proteins encoded in the CAR nucleotide construct is a Wnt signaling protein, which is LEF1.
Tantalo et al. teaches understanding T cell phenotype for the design of effective chimeric antigen receptor T cell therapies (title). Tantalo teaches recently stem-like memory T cells (TSCM) are considered a preferred phenotype for CAR T cell products because of their self-renewal capacity, ability to generate other T cell subsets and their increased ability to engraft (pg. 3, col. 1, para. 2). Tantalo describes the generation of human TSCM cells by inducing Wnt signaling in T cells in vitro. Inhibition of this pathway with TWS119, a Wnt pathway activator, promoted the expression of TCF1 and LEF1, which have been determined to promote T cell persistence and self-renewal capacity (pg. 3, col. 1, para. 3). For comparison, the instant specifications describe the term “transcriptional activator in the Wnt signaling pathway” refers to proteins what when exogenously expressed in a cell, activate genes downstream of Wnt/β-catenin signalin pathway, and also include small molecule activators, and include inhibitors of negative regulators of Wnt signaling, such as TWS119 (Specs., pg. 58, para. 00119). However, Tantalo does not teach a construct for increasing the Wnt signaling pathway activity.
Wang et al. teaches LEF-1 regulates tyrosinase gene transcription in vitro (title). Wang teaches that previous studies have revealed that the Wnt signaling factor lymphoid enhancer-binding factor (LEF-1) can enhance CDT and MITF gene expression, and that the current study demonstrates that LEF-1 overexpression increased TYR gene promoter activity (abstract). Wang teaches the construct for overexpressing LEF-1 was the pcDNA3.1-LEF-1-HA expression vector containing full-length LEF-1 cDNA, of GenBank Accession No: NM_016269.4 (pg. 2, para. 5). Wang teaches transfecting melanoma cells with increasing amounts of LEF-1 expression vector showed a dose-dependent increase luciferase activity (pg. 7, Fig. 2).
It would have been obvious to one of skill in the art to add a nucleotide domain encoding LEF-1 protein to the CAR polynucleotide construct of the combination of Horwitz and Dai. One would have been motivated to do so given that increasing expression of LEF-1 protein promotes T cell persistence and self-renewal capacity, as taught by Tantalo et al. There would have been a reasonable expectation for success given that Dai teaches the CAR construct can comprise polynucleotides that encode additional proteins which may be cleaved from the CAR post-translationally, and that LEF-1 was successfully overexpressed in cells by transfecting the cells with a vector comprising a nucleotide that encodes the LEF-1, as taught by Wang et al. Thus, the invention was prima facie obvious to one of skill in the art at the time the invention was made.
Regarding claims 9-14 and 18-19. The combination of Horwitz and Dai make obvious an anti-CSPG4 CAR utilizing the anti-CSPG4 binding domain of Horwitz, whereby the CAR encodes a CD8 TM domain and a CD3ζ intracellular domain of Dai, of claims 1 and 6-8, as described above. The polynucleotide encoding the CAR may also comprise nucleotide domains encoding additional proteins (re. claim 10), and wherein the additional domains each comprise a 2A peptide sequence for post-translational cleavage of the additional proteins (re. claim 11), as taught by Dai, and whereby F2A may be substitutable for P2A (re. claim 12), as evidenced by Chng et al. Further, the combination of Tantalo and Wang make obvious wherein the CAR expression construct, of Horwitz and Dai, further comprises a nucleotide domain encoding LEF-1, a transcriptional activator in the Wnt signaling pathway (re. claim 9). Thus, the combination of Horwitz, Dai, Tantalo and Wang, as evidenced by Chng, make obvious instant claims 9-12.
Regarding claims 13-14, Wang teaches overexpressing LEF-1 in cells using the pcDNA3.1-LEF-1-HA expression vector containing full-length LEF-1 cDNA, of GenBank Accession No: NM_016269.4. GenBank accession number NM_016269.4 is Gene ID 51176, and is NP_057353.1 (isoform 1), see attached GenBank LEF-1 data sheet. Thus, the combination of Horwitz, Dai, Tantalo and Wang, as evidenced by Chng, make obvious the CAR expression construct of instant claims 13-14.
Regarding claims 18-19. The instant specifications define a “spacer” as encompassing a “hinge region”, whereby the spacer or hinge region can be 1-20 amino acids long, and examples of hinge regions include the CH2CH3 region of immunoglobulin, the hinge region from IgG1, and portions of CD3 (Specs., pg. 24, para. 0063). Dai teaches the CAR can further comprise a hinge region connecting the extracellular domain and the transmembrane domain; the hinge region functions to move the extracellular domain away from the surface of the engineered immune cell to enable proper cell/cell contact, binding to the target or antigen and activation. Further, Dai teaches that any suitable hinge region can be used in the CAR of the invention (pg. 30, para. 00135). Thus, Dai makes obvious using a hinge region as a spacer domain in the CAR construct, including a nucleotide domain coding for the hinge region in the CAR expression construct; and thus makes obvious instant claim 18. Dai also teaches the CAR of Fig. 1, whereby the 4-1BB ICD is fused in-frame to a CD3ζ ICD (i.e., no linking peptide); and thus makes obvious instant claim 19.
Claims 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Horwitz et al., (US Patent 8318162; issued 11/27/2012) in view of Dai et al., (WO 2020/043152; published 5/3/2020), as evidenced by Chng et al., (mAbs, 7:2, 2015), and further in view of Tantalo et al., (Journal for Immunotherapy of Cancer, published 5/2021) and Wang et al., (PLOS One, published 11/18/2015) as applied to claims 1, 6-14 and 18-19 above, and further in view of Lanitis et al., (Journal of Experimental Medicine, 218(2), 2/1/2021).
The combination CAR expression construct of Horwitz, Dai, Tantalo and Wang is described above. Specifically the combination makes obvious a CAR expression construct comprising a transcriptional activator, which is LEF-1, in the Wnt signaling pathway, wherein the CAR expression construct comprises a protein coding sequence for up to 3 additional proteins, and whereby the transcriptional activator domain and the additional protein domains comprise a 2A peptide sequence such that the additional proteins are cleaved from the CAR construct post-translationally. However, the combination references do not teach wherein the CAR expression construct comprises a protein coding sequence for a growth factor, as one of the additional protein encoding sequences (i.e., of claims 15-17).
Lanitis teaches optimized gene engineering of murine CAR-T cells reveals the beneficial effects of IL-15 expression (title). Lanitis teaches a bicistronic retroviral vector encoding both a tumor vasculature-targeted CAR and murine IL-15, which confers enhanced effector functions, engraftment, tumor control, and TME reprogramming, including NK cell activation and reduced presence of M2 macrophages (abstract). Lanitis teaches the expression construct in Fig. 4A (pg. 8), whereby the mIL-15 coding sequence is upstream of scFv binding domain sequence and is separated from the binding domain sequence by a T2A peptide.
It would have been obvious to one of skill in the art to include a protein coding sequence for IL-15 in a CAR expression construct, as taught by Lanitis. One would have been motivated to do so given that IL-15 expression confers enhanced effector functions to the CAR-T cells for the purpose of treating cancer, as taught by Lanitis. There would have been a reasonable expectation for success given that Lanitis produced a CAR expression construct that further comprises a coding sequence for IL-15, which includes a T2A peptide. Chng et al. makes obvious the substitution of F2A, P2A and T2A peptides for the same purpose, which is to allow the protein to be cleaved from the CAR construct post-translationally.
Regarding claims 15-17. The combination CAR expression construct of Horwitz, Dai, Tantalo, Wang and Lanitis make obvious the CAR expression construct of instant claim 15-16, wherein the growth factor is IL-15; and also makes obvious the construct of instant claim 17, wherein the growth factor is separated from the CAR expression domain by a F2A sequence.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Horwitz et al., (US Patent 8318162; issued 11/27/2012) in view of Dai et al., (WO 2020/043152; published 5/3/2020), as evidenced by Chng et al., (mAbs, 7:2, 2015), and further in view of Tantalo et al., (Journal for Immunotherapy of Cancer, published 5/2021) and Wang et al., (PLOS One, published 11/18/2015) as applied to claims 1, 6-14 and 18-19 above, and further in view of Gilham et al., (Journal of Clinical Oncology, 38, 5/25/2020, Meeting Abstract 3103) and Ternyila (Targeted Oncology, 11/4/2020).
The combination CAR expression construct of Horwitz, Dai, Tantalo and Wang is described above. Specifically the combination makes obvious a CAR expression construct comprising a transcriptional activator, which is LEF-1, in the Wnt signaling pathway, wherein the CAR expression construct comprises a protein coding sequence for up to 3 additional proteins, and whereby the transcriptional activator domain and the additional protein domains comprise a 2A peptide sequence such that the additional proteins are cleaved from the CAR construct post-translationally. However, the combination does not teach wherein the CAR expression construct comprises a DNA sequence encoding a shRNA sequence targeting an MHC class I or class II gene, wherein the shRNA is embedded in a microRNA scaffold (i.e., claim 20).
Gilham et al. teaches single vector multiplexed shRNA provides a non-gene edited strategy to concurrently knockdown the expression of multiple genes in CAR T cells (title). Gilham teaches the need to modulate gene expression thereby endowing the engineered T cell with specific desired features that enhance anti-tumor activity (background). Gilham teaches short-hairpin RNA (shRNA) were multiplexed within micro-RNA scaffolds that enable the co-expression of the individual shRNA with a CAR and a selectable marker all driven by a PolII promoter within a single retroviral vector (methods). Gilham teaches that shRNA specific for CD3ζ, beta-2-microglobulin, CD52 and diacylglycerol kinase alpha were engineered into the framework downstream of a CD19-CAR (methods); and resulted in a first-in-human clinical trial evaluating the first-generation single shRNA-vector in the context of a BCMA-targeting CAR as a non-gene edited approach to allogeneic CAR-T cell therapy will be initiated in 2020 (conclusions). Thus, Gilham teaches the art of incorporating a shRNA, within a micro-RNA scaffold, for the purpose of enhancing anti-tumor features of a CAR T cell. However, Gilham does not teach the shRNA targets a MHC class I gene.
Ternyila discloses an interview with David E. Gilham, published 11/4/2020, discussing the feasibility of single vector multiplexed shRNA for CAR T cells (title). Ternyila teaches the technology of the discussion revolves around a first-in-human trial presented during the 2020 American Society of Clinical Oncology Virtual Scientific Program, which is evaluating the first-generation single shRNA-vector with BCMA-targeted CAR as a potential non-gene edited approach to utilizing allogeneic CAR T-cell therapy in patients with cancer (pg. 1, para. 1). Gilham discusses the technological advantage is that we can include multiple shRNA into the same vector (pg. 2, para. 2). Gilham states, “in addition to targeting CD3ζ, the T cell receptor complex, we can, for instance, also include another shRNA that targets MHC class 1 for instance,” (pg. 2, para. 3). Gilham also states, “the main reason why this technology works is that we express the shRNA, which is a short stretch of RNA, within the context of a microRNA framework; this microRNA framework allows the shRNA to be expressed within out CAR, and this is the key, the fact that we can have effectively 1 promoter that drives expression of all the genes withing that particular vector, and so the shRNA, the CAR, and other genes are all expressed within that 1 vector,” (pg. 2, para. 4). Thus, Ternyila discloses that the technology of Gilham was conceptualized to apply to shRNA targeting MHC class 1, and that the use of different shRNAs, with different targets, are substitutable within the technology of using a microRNA framework to express such constructs in the same vector encoding the CAR construct.
It would have been obvious to one of skill in the art to modify the CAR expression construct of Horwitz, Dai, Tantalo and Wang to further comprise a microRNA scaffold encoding a shRNA targeting a MHC class I gene. One would have been motivated to do so to enhance the anti-tumor features of a CAR-T cell for therapy, as taught by Gilham et al. There would have been a reasonable expectation for success given that Gilham produced such a construct targeting CD3ζ, and teaches that it can also be used to target a MHC class I gene. Thus, the invention was prima facie obvious to one of skill in the art at the time the invention was made.
The CAR expression construct of the combination of Horwitz, Dai, Tantalo, Wang, Gilham and Ternyila, teaches a CAR expression construct comprising a DNA sequence encoding a shRNA sequence which may target a MHC class I gene, wherein the shRNA sequence is embedded in a microRNA scaffold, and therefore claim 20 is rejected for obviousness.
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 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 and 4-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 13-14 and 17 of U.S. Patent No. 11,725,061; issued 8/15/2023. Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of the claims of US ‘490 anticipate that of the instant claims.
US ‘061 claims a method of inhibiting the proliferation of cancer cells comprising contacting the cancer cells with a therapeutically effective amount of immune cells that express a CAR comprising the anti-CSPG4 scFv 763.74 (claim 1). In looking to the specifications for description of scFv 763.74, it is disclosed that scFv 763.74 is encoded by SEQ ID NO: 2 (col. 8, lines 50-60. The scFv of 763.74, SEQ ID NO: 2, comprises the LCDRs of instant SEQ ID NOs: 1-3, the HCDRs of instant SEQ ID NOs: 4-6, the LFR1-4 of instant SEQ ID NOs: 159, 224, 226 and 249, respectively, and the HFR1-4 of instant SEQ ID NOs: 347, 352, 359 and 361, respectively; all with 100% sequence identity. Thus, the scFv of 763.74 comprises the anti-CSPG4 binding member of instant claim 1 with 100% sequence identity. US ‘061 also claims the binding protein as a CAR construct comprising a transmembrane domain of CD28 (claim 13) and a endodomain of CD28 (claim 14), and immune cells which harbor a polynucleotide that encodes the CAR (claim 17).
Specifically, the anti-CSPG4 CAR of the method of US ‘061, claim 1, anticipates the anti-CSPG4 binding member of instant claim 1 and the CAR of instant claims 6-8; the nucleotide encoding the anti-CSPG4 CAR of the method of US ‘061 claim 17 anticipates the nucleotides of instant claims 4-5.
Claims 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 13-14 and 17 of U.S. Patent No. 11,725,061 in view of Horwitz et al., (US Patent 8318162; issued 11/27/2012).
The reasons why the CAR of US ‘061 anticipate the anti-CSPG4 binding member, and nucleic acids encoding the binding member, of instant claims 1 and 4-8 are described above. However, while US ‘061 teaches the VH of instant SEQ ID NO: 109, US ‘061 does not teach wherein the VL comprises the LFR1-4 of the embodiments of instant claim 2, or the VL of SEQ ID NOs: 67-108, of claim 3.
Horwitz teaches human engineered anti-CSPG4 antibodies comprising the VL of SEQ ID NO: 7 and the VH of SEQ ID NO: 10, as described above. Horwitz SEQ ID NO: 7 is 100% identical to the VL of instant SEQ ID NO: 67 and the VH of Horwitz SEQ ID NO: 10 is 100% identical to instant SEQ ID NO: 114. The VL of Horwitz SEQ ID NO: 7 comprises the VL CDRs of instant SEQ ID NOs: 1-3, as well as the corresponding framework regions VL FR1-4 of SEQ ID NOs: 157, 224, 226 and 249, respectively, as described above.
It would have been obvious to one of skill in the art to utilize the VH of the anti-CSPG4 scFv of US ‘061 with the anti-CSPG4 VL of Horwitz. One would have been motivated to do so in order to generate an alternative embodiment of the anti-CSPG4 binding domain scFv. There would have been a reasonable expectation for success given that both the anti-CSPG4 binding domain, of Horwitz and of US ‘490, are anti-CSPG4 binding domains comprising the identical VL/VH CDRs, coupled with alternative humanized framework regions; therefore the VL of Horwitz and the VL of US ‘490 are substitutable in engineered anti-CSPG4 binding constructs with a reasonable expectation for success at binding CSPG4. Thus, the invention was prima facie obvious to one of skill in the art at the time the invention was made.
Specifically, the VH of US ‘061 SEQ ID NO: 2 is 100% identical to instant SEQ ID NO: 109, comprising VH CDRs of instant SEQ ID NOs: 4-6 and the HFR1-4 of SEQ ID NOs: 347, 352, 359 and 361, respectively. The VL of Horwitz SEQ ID NO: 7 is 100% identical to the VL of instant SEQ ID NO: 67, comprising the VL CDRs of instant SEQ ID NOs: 1-3, and the LFR1-4 of SEQ ID NOs: 157, 224, 226 and 249, respectively.
Thus, the combination anti-CSPG4 scFv of US ‘061 and Horwitz make obvious the anti-SCPG4 binding member of instant claims 2-3, as well as instant claims 1 and 4-8.
Claims 1, 6-14 and 18-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 13-14 and 17 of U.S. Patent No. 11,725,061 in view of Dai et al., (WO 2020/043152; published 5/3/2020), as evidenced by Chng et al., (mAbs, 7:2, 2015), and further in view of Tantalo et al., (Journal for Immunotherapy of Cancer, published 5/2021) and Wang et al., (PLOS One, published 11/18/2015).
The reasons why US ‘061 anticipates the anti-CSPG4 binding member, and CAR, of instant claims 1 and 4-8 are described above.
Dai et al teaches CAR constructs comprising multiple additional protein coding sequences, whereby the additional protein sequences are separated from the CAR via a 2A peptide, as described above. Chng provides evidence that different 2A peptides, i.e. F2A, P2A or T2A are substitutable for the same purpose, as described above. The combination of Tantalo and Wang make obvious engineering the CAR construct to comprise a LEF-1 coding sequence, whereby LEF-1 is a transcriptional activator in the Wnt signaling pathway, as described above.
It would have been obvious to one of skill in the art to add a nucleotide domain encoding LEF-1 protein to the CAR polynucleotide construct of the combination anti-CSPG4 CAR of US ‘061 and Dai. One would have been motivated to do so given that increasing expression of LEF-1 protein promotes T cell persistence and self-renewal capacity, as taught by Tantalo et al. There would have been a reasonable expectation for success given that Dai teaches the CAR construct can comprise polynucleotides that encode additional proteins which may be cleaved from the CAR post-translationally, and that LEF-1 was successfully overexpressed in cells by transfecting the cells with a vector comprising a nucleotide that encodes the LEF-1, as taught by Wang et al. Thus, the invention was prima facie obvious to one of skill in the art at the time the invention was made.
Specifically, the combination anti-CSPG4 CAR of US ‘061 and Dai, comprising the nucleotide encoding the LEF-1 transcriptional activator of Tantalo and Wang, make obvious the CAR of instant claims 9-14, as well as 18-19.
Claims 1 and 6-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 13-14 and 17 of U.S. Patent No. 11,725,061 in view of Dai et al., (WO 2020/043152; published 5/3/2020), as evidenced by Chng et al., (mAbs, 7:2, 2015), and further in view of Tantalo et al., (Journal for Immunotherapy of Cancer, published 5/2021) and Wang et al., (PLOS One, published 11/18/2015) and Lanitis et al., (Journal of Experimental Medicine, 218(2), 2/1/2021).
The reasons why claims 1, 6-14 and 18-19 are rejected over US ‘061 and Dai, Chng, Tantalo and Wang is described above. However, while Dai teaches additional sequences encoding additional proteins, none of the references teach wherein the additional protein coding sequence is for a growth factor, which may be cytokine IL-15 (i.e., re. claims 15-16).
Lanitis et al. teaches a CAR expression construct comprising an IL-15 coding sequence upstream of the scFv coding sequence, and separated by a 2A cleavable peptide sequence, as described above.
It would have been obvious to one of skill in the art to include a protein coding sequence for IL-15 in a CAR expression construct, as taught by Lanitis. One would have been motivated to do so given that IL-15 expression confers enhanced effector functions to the CAR-T cells for the purpose of treating cancer, as taught by Lanitis. There would have been a reasonable expectation for success given that Lanitis produced a CAR expression construct that further comprises a coding sequence for IL-15, which includes a T2A peptide. Chng et al. makes obvious the substitution of F2A, P2A and T2A peptides for the same purpose, which is to allow the protein to be cleaved from the CAR construct post-translationally.
Specifically, the CAR construct of US ‘061, Dai, Chng, Tantalo and Wang, further comprising the IL-15 coding sequence of Lanitis, makes obvious instant claims 15-17.
Claims 1, 6-14 and 18-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 13-14 and 17 of U.S. Patent No. 11,725,061 in view of Dai et al., (WO 2020/043152; published 5/3/2020), as evidenced by Chng et al., (mAbs, 7:2, 2015), and further in view of Tantalo et al., (Journal for Immunotherapy of Cancer, published 5/2021) and Wang et al., (PLOS One, published 11/18/2015) and Gilham et al., (Journal of Clinical Oncology, 38, 5/25/2020, Meeting Abstract 3103) and Ternyila (Targeted Oncology, 11/4/2020).
The reasons why claims 1, 6-14 and 18-19 are rejected over US ‘061 and Dai, Chng, Tantalo and Wang is described above. However, while Dai teaches additional sequences encoding additional proteins, none of the references teach wherein the expression construct encoding the CAR further comprises a microRNA scaffold comprising a shRNA sequence targeting a MHC class 1 or class II gene (i.e., re. claim 20).
The combination of Gilham and Ternyila teach engineering CARs with microRNA scaffolds comprising shRNA targeting a MHC class I gene, such that the engineered cells expressing the CAR would have enhanced anti-tumor properties, as described above.
It would have been obvious to one of skill in the art to modify the CAR expression construct of US ‘061, Dai, Tantalo and Wang to further comprise a microRNA scaffold encoding a shRNA targeting a MHC class I gene. One would have been motivated to do so to enhance the anti-tumor features of a CAR-T cell for therapy, as taught by Gilham et al. There would have been a reasonable expectation for success given that Gilham produced such a construct targeting CD3ζ, and teaches that it can also be used to target a MHC class I gene. Thus, the invention was prima facie obvious to one of skill in the art at the time the invention was made.
Specifically, the combination CAR expression construct of US ‘061, Dai, Tantalo, Wang, Gilham and Ternyila make obvious that of instant claim 20.
Claims 1 and 4-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of U.S. Patent No. 12,428,490; issued 9/30/2025. Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of the claims of US ‘490 anticipate that of the instant claims.
US ‘490 claims a CAR comprising the amino acid sequences of SEQ ID NOs: 1-2 (claim 1). US ‘490 SEQ ID NO: 1 is 100% identical to the VH of instant SEQ ID NO: 114; and US ‘490 SEQ ID NO: 2 is 100% identical to the VL of instant SEQ ID NO: 67. US ‘490 also claims the CAR with a signal peptide (claim 2-3), wherein the CAR further comprises an effector molecule, which may be a cytokine (claim 5), a nucleic acid encoding the CAR (claims 7-9).
Specifically,