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 .
DETAILED ACTION
Claims 1-15 and 17-18 are pending.
Response to Arguments
Applicant's arguments filed 11/21/2025 have been fully considered but they are not persuasive.
Applicant argues against the rejection of claims under 35 U.S.C. 101 on the grounds that: i) the media system as a whole does not exist in nature, ii) the media system is structurally different from any salts or chelating agents that exist in nature, and iii) has different functional characteristics than any individual media component as evidenced by the surprising an unexpected improvements in fermentation process and reduced media precipitation (Arguments, bottom paragraph on page 10). Applicant argues that the claimed media system has unexpected and markedly different functional properties as compared to the individual media components therein. Applicant argues that the case is analogous to Natural Alternatives Int'l v. Creative Compounds, LLC, 918 F.3d 1338 (Fed. Cir. 2019) because even though the claimed media system may incorporate salts and chelating agents found in nature, the media system as a whole has a different characteristic than the media components and can be used in a manner that the individual components as they appear in nature cannot (Arguments, paragraph 1 on page 12).
In response, the facts of the cited case law differ significantly from the present claims. In Natural Alternatives Int'l v. Creative Compounds, LLC, the claimed dosage forms of beta-alanine can be used to increase athletic performance in a way that naturally occurring beta-alanine cannot. Here, the structure of the claimed product does not have any markedly different characteristics than a product of nature. In essence, the claimed media solution is several salts that occur in nature. Unlike Natural Alternatives Int'l v. Creative Compounds, LLC, there is no markedly different characteristic for the media system (i.e. salts) compared to a product of nature. The salts themselves are not chemically altered or different in any way than naturally occurring salts, nor is there any functional characteristic of the media system that is in any way different than naturally occurring salts. Although Applicant submits that the media system confers improvements in fermentation process and reduced media precipitation, Applicant has not presented convincing evidence of these results as discussed further in the rebuttal of Applicant’s arguments regarding unexpected results. Furthermore, the claimed media system does not recite any components required for fermenting bacteria besides the salts. The result of reduced media precipitation by lower concentrations of salts is not a markedly different characteristic than a product of nature but rather a naturally occurring phenomenon.
Applicant argues against the rejection of claims under 35 U.S.C. 103 over Huber in view of Jensen as evidenced by Li on the grounds that the teachings of Huber contradict those of Jensen. Applicant argues that the rejection does not establish a case of prima facie obviousness because the rejection relies on Huber’s teaching of 79.5 mM phosphate in the feed medium as well as Jensen’s teaching of 0 mM phosphate in the feed medium (Arguments, paragraphs 2-3 on page 15).
In response, this argument is unpersuasive. There is no absolute “requirement” taught by Huber for the amount of phosphate in the feed medium. Rather, Huber suggests that the feeding medium may contain equivalent components that are present in the batch medium in a concentration which is 2-fold to 100-fold higher as compared to the batch medium ([0063]). This is far from an absolute requirement as to the amount of phosphate in the feeding medium. The person of ordinary skill in the art would have had a reasonable expectation of success in establishing an amount of phosphate salt in the batch medium based upon the guidance of Huber, while also relying on Jensen to modify Huber by omitting phosphate.
Applicant also argues that the person of ordinary skill in the art would not have had a reasonable expectation of success in producing recombinant protein using the method of Huber by only modifying the phosphate requirement (Arguments, paragraph 1 on page 16).
In response, this argument is not persuasive because the cited references teach each and every claim limitation. Recombinant protein is merely the translation of a nucleic acid sequence. Huber’s method already produces plasmid DNA, thus producing recombinant protein is merely a matter of introducing a specific protein-coding sequence into the plasmid. Living cells necessarily produce proteins, thus they already contain protein translation machinery. A person of ordinary skill in the art would have had a reasonable expectation of success because these are basic molecular biology techniques. See for example, Thermo Fisher’s “Recombinant protein expression methods,” paragraph 3 (2015, website).
Applicant argues further against the rejection of claims under 35 U.S.C. 103 on the grounds that Applicant’s results are unexpected. Applicant argues that the results in Example 3 show surprising and unexpected improvements in fermentation process and reduced media precipitation of the media system. Applicant argues that Example 3 demonstrates that the claimed media system shows higher titers for the phosphate depleted system (Arguments, page 16, final full paragraph).
Per MPEP 716.02(b), the burden is on the applicant to establish results are unexpected and significant: “the evidence relied upon should establish that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance.” Here, Applicant has not provided sufficient evidence to establish that the results are unexpected, unobvious, and of both statistical and practical significance. First, Applicant has not provided evidence of the statistical and practical significance of the results. See Tables 1 and 2 on page 26. It is unclear whether replicates were performed for any of the tested conditions in Table 1, thus it is unclear whether the results are statistically significant. Applicant has also not explained the significant of “Titer Pellet” and “Titer Supernatant.” Although Applicant concludes the NPM media system resulted in the best product yield (Specification, lines 38-30 on page 25), the results do not appear to be consistent across the different reporter molecules (Fab, eGFP, and sdAb), nor are the results consistent regarding whether or not the product is in the cell pellet or supernatant. For example, the precipitating medium appears to have a higher yield of soluble sdAb (Titer supernatant is 1.7 g/L compared to 1.6 g/L). Likewise, the “titer supernatant” for sdFab in Table 2 appears to be similar for all three media. Applicant has further not explained the practical significance of these results. Furthermore, there is a nexus lacking between the results and the invention as claimed. Per MPEP 716.01(b), to be of probative value, any secondary evidence must be related to the claimed invention. Here, Applicant’s results are specific to a select number of proteins, whereas the claimed invention is generic to any fermentation product, which encompasses any protein, RNA, or recombinant DNA molecule (see dependent claim 18).
Applicant argues against the rejection of claims under 35 U.S.C. 103 over Durany in view of Pirt on the grounds that the calculated concentration of calcium in the batch and feed medium is incorrect because the calculated concentration in the office action is the concentration in the trace element solution, not the batch or feed medium (Arguments, bottom paragraph on page 13).
This argument is persuasive and the rejection is withdrawn. The concentration of calcium in Durany’s batch medium is 0.0028 mM rather than 28 mM, which is less than the claimed amount.
The rejection of claims 10 and 18 under 35 U.S.C. 112(b) for “a protein of interest” is withdrawn in light of the special definition provided in [0157] of the specification.
Information Disclosure Statement
The information disclosure statement filed 11/21/2025 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because the provided copy of the NPL reference is illegible. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Specifically, the NPL reference has not been considered. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
Claim Objections
Claims 6 and 15 are objected to because of the following informalities:
For claim 6, in (a)(iv) “at least one ammonium selected from the group consisting of” should be replaced with “at least one ammonium salt selected from the group consisting of.” Similarly, (a)(v) should recite “at least one sulphate salt” and (a)(vi) should recite “at least one phosphate salt.” Claim 6 should recite in part (b)(iiii) “the feed medium comprises 0 - 10 mM phosphate salt selected from the group consisting of.”
For claim 15, (a)(iv) should recite “at least one ammonium salt selected from the group consisting of,” (a)(v) should recite “at least one sulphate salt selected from the group consisting of,” (a)(vi) should recite “at least one phosphate salt selected from the group consisting of,“ and (b)(iii) should recite “the feed medium comprises 0-10 mM phosphate salt selected from the group consisting of.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
(New Rejection Necessitated by Amendment) Claim 5 is 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 5 recites in b) that the feed medium comprises a phosphate amount which is less than 90% of the phosphate amount contained in the batch medium. However, claim 5 depends from claim 1, which recites in iv) that the amount of phosphate salts is 30-120 mM in the batch medium; and 0-10 mM in the feed medium. Therefore, it is unclear what the required amount of phosphate in the feed medium is: the claimed range or the relative amount.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
(Maintained Rejection) Claims 12-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a product of nature without significantly more.
The rationale for this determination is explained below.
A flowchart has been established to determine subject matter eligibility under 35 U.S.C. 101. See MPEP 2106 part (III) and 2106.04 part (II)(A). The flowchart comprises answering: Step 1) Is the claim to a process, machine, manufacture or composition of matter? Step 2A Prong One) Does the claim recite an abstract idea, law of nature or natural phenomenon? Step 2A Prong Two) Does the claim recite additional elements that integrate the judicial exception into a practical application? Step 2B) Does the claim recite additional elements that amount to significantly more than the judicial exception? The claims are analyzed for eligibility in accordance with their broadest reasonable interpretation.
This rejection applies to the embodiment in which the chelating agent is citrate and/or citric acid.
Claim 12 is drawn toa media system comprising a batch medium comprising calcium salts, magnesium salts, phosphate salts and citric acid and/or a citrate salt, and a feed medium comprising calcium salts, magnesium salts and phosphate salts.
Claim 13 further limits the amounts of the salts in the batch medium and the feed medium and requires that the batch and feed media further comprise an organic carbon source and trace elements, and the batch medium further comprises a nitrogen source and phosphate.
Claim 14 further limits the amounts of the media components and requires that the media contain glucose or glycerol, ammonium and sulphate.
Claim 15 requires that the batch medium comprise CaCl2, MgSO4, glycerol, (NH4)2SO4, NH4Cl, KH2PO4, citrate and/or citric acid. Claim 15 also requires that the batch medium comprises an antifoam agent. Claim 15 requires that the feed medium comprises CaCl2, MgSO4, KH2PO4, glycerol, trace elements, and citrate and/or citric acid.
Claims 12-15 are drawn to a media system, which comprises two different compositions, which are one of the four statutory categories of invention (Step 1: Yes). However, the batch medium and the feed medium each comprise naturally occurring salts. CaCl2 and MgSO4 are both are naturally present in brine (Warren , J. "Calcium Chloride (CaCl2) Article 2 of 2: CaCl2 minerals across time and space." Salty Matters (2017); page 1, right column, paragraph 2). NH4Cl is a naturally occurring mineral (Ohio DNR, 2025 website; line 1). (NH4)2SO4 is naturally found in volcanoes (Comodi et al., Crystals 11.8 (2021): 976; 1. Introduction, line 1). Monopotassium phosphate (KH2PO4) is naturally occurring (EPA Fact Sheet, 1998; B. Biochemical Classification). Trace elements are naturally present in the earth (Virginia Biosolids Council, 2025, “Benefits and risks of trace elements”). Citric acid and citrate are present in fruit (VeryWellHeatlh, 2024, website; paragraph 1) and glycerol is a naturally occurring compound found in animal and plant fats and oils (“What is glycerin?” paragraph 1). Some antifoam agents are naturally occurring, such as vegetable oils like sunflower and soybean oil, as evidenced by Raw Source (2024, website; see “Common Natural Defoaming Agents” on page 3). There is no evidence of record to support that the combination of media components yields markedly different characteristics (such as the chemical structure of the components) than a product of nature.
Therefore, claims 12-15 each recite the judicial exception of a product of nature (Step 2A Prong One: Yes). The judicial exception is not integrated into a practical application (Step 2A Prong Two: No) because the media system merely recites an intended use of the compositions (“for use in a bacterial fermentation process comprising a batch medium and a feed medium for cultivating bacterial cells”). There are no additional elements recited in the claims besides the judicial exception of a product of nature (Step 2B: No). Claim 12 recites “wherein the fed and batch media are each unprecipitated media solutions” but this is merely an intrinsic property of the solutions dependent on the amount of salts in the solutions and does not further limit the structure of either the batch medium or the feed medium.
EDTA is a synthetic compound (not naturally occurring), thus the embodiment in which the chelating agent is EDTA is eligible under 35 U.S.C. 101.
Claim Rejections - 35 USC § 103
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 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.
The following rejections are modified as necessitated by the amendment.
Claims 1-10, 12-15 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Huber (EP 1 584 680 A1; cited in the IDS filed on 5/18/2023) in view of Jensen et al. (Biotechnology and bioengineering 36.1 (1990): 1-11), as evidenced by Li et al. (Biotechnology and bioengineering 111.10 (2014): 1940-1948).
Regarding claims 1, 5, and 12, Huber teaches cultivating E. coli in a batch medium and subsequently cultivating E. coli in a feed medium to produce plasmid DNA (Abstract). Huber’s process is a fermentation ([0001]).
Huber teaches that the feed medium comprises 300 g/L glucose, 7.2 g/L MgSO4·7H2O; 2 g/L citric acid; 5.4 g/L KH2PO4; 14.4 g/L Na2HPO4·12H2O; 220 mg/L CaCl2·2H2O, and trace elements (in the form of iron, cobalt, manganese, copper, and zinc salts) ([0063]). The salts are naturally occurring inorganic substances (i.e. minerals), so Huber’s feed medium is a mineral feed medium.
220 mg/L CaCl2·2H2O (147 g/mol) is equivalent to 1.5 mM calcium, which is within the claimed range of 0-5 mM calcium for the feed medium.
7.2 g/L MgSO4·7H2O (246 g/mol) is equivalent to 29 mM magnesium, which is within the claimed range of 3-100 mM magnesium for the feed medium.
2 g/L citric acid (molar mass 192 g/mol) is equivalent to 10 mM citric acid.
300 g/L glucose is below the claimed range of 500-800 g/L glucose for the feed medium.
5.4 g/L KH2PO4 (136 g/mol) is equivalent to 39 mM phosphate and 14.4 g/L Na2HPO4·12H2O (molar mass 358 g/mol) is equivalent to 40 mM phosphate, thus the total amount of phosphate in Huber’s feed medium is 79 mM.
Huber teaches that the feeding medium may contain equivalent components in a concentration which is 2-fold to 100-fold higher as compared to the batch medium ([0063]). Therefore, Huber’s batch medium also contains salts, which are naturally occurring inorganic substances (i.e. minerals), so Huber’s batch medium is a mineral medium just like the feed medium.
Therefore, Huber’s batch medium contains calcium within the claimed range of 0-10 mM (for the feeding medium containing 10-fold higher calcium, the amount of calcium in Huber’s batch medium is 0.15 mM), magnesium salts within the claimed range of 1-3 mM (for the feeding medium containing 10-fold higher magnesium, the amount of magnesium in Huber’s batch medium is 2.9 mM), glucose within the claimed range of 10-30 g/L (for the feeding medium containing 10-fold higher glucose, the amount of magnesium in Huber’s batch medium is 30 g/L), sulphate within the claimed range of 5-50 mM (for the feeding medium containing 5-fold higher sulphate, the amount of sulphate in Huber’s batch medium is 5.8 mM), citric acid within the claimed range of 5-100 mM (for the feeding medium containing 2-fold higher citric acid, Huber’s batch medium contains 5 mM citric acid).
Regarding the level of phosphate in the batch medium, Huber teaches that the feeding medium comprises 79 mM phosphate (converted from g/L above), thus for a level of phosphate in the batch medium that is 2-fold lower than the feeding medium, the level in the batch medium is 39.5 mM, which is a value within the claimed range of 30-120 mM phosphate.
Huber teaches that the batch medium comprises a source of ammonium in the form of ammonium chloride and/or ammonium sulphate ([0056]). The ammonium concentration in the batch medium is in the range of 0.1 to 8 g/L NH4 ([0055]). For ammonium chloride (molar mass 53 g/mol), this range is equivalent to 1.9 mM to 150 mM, which overlaps with the claimed range of 50 to 125 mM ammonium in the batch medium.
Huber’s batch medium also contains trace elements, since the batch medium contains components equivalent to the feed medium and Huber’s feed medium contains trace elements in the form of iron, cobalt, manganese, copper, and zinc salts ([0063]).
Huber does not teach that the feed medium comprises 0-10 mM phosphate salts.
Jensen teaches a fed-batch cultivation of E. coli for the production of human growth hormone (Abstract), which is a protein. Jensen teaches that omitting phosphate from the feeding medium in a fed-batch fermentation while increasing glucose feed rate blocks biomass formation and consequently improves the production of recombinant protein (page 7, left column and Figure 7).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Huber’s process to reduce or omit phosphate so as to produce a recombinant protein rather than plasmid DNA. The person of ordinary skill in the art would have been motivated to apply the media system of Huber to produce other value-added products, such as proteins. It would have been further obvious to improve the method of Huber by omitting phosphate in the feed medium of Huber per the teaching of Jensen. The person of ordinary skill in the art would have been motivated to improve the yield of recombinant protein. The person of ordinary skill in the art would have had a reasonable expectation of success in applying Huber’s media system to produce recombinant proteins and in applying Jensen’s technique to improve the process of Huber.
Whether or not solutions precipitate is dependent upon the amounts of salts dissolved within the solution. Here, Huber in view of Jensen teaches the claimed structure of both the feed and batch compositions, thus the feed and batch compositions taught by the prior art of Huber in view of Jensen are unprecipitated media solutions. In addition, citric acid eliminates ferric precipitates, as evidenced by Li et al. (Abstract), thus Huber’s batch and fee media are both free of ferric precipitates because both media contain citric acid.
Regarding claim 2, see Huber [0063] regarding the amounts of each of the components in the feed medium. See above discussion of the conversions of g/L to mM for each component and the corresponding amounts in the batch medium based on Huber’s guidance in [0063] regarding relative amounts of the components in the batch and feed media. Huber’s feed medium contains 1.5 mM calcium, which is within the claimed range of up to 4 mM calcium in the feed medium. For a 10-fold lower concentration in the batch medium, Huber’s batch medium contains 0.15 mM calcium, which is within the claimed range of up to 1 mM calcium. Huber’s feed medium contains 29 mM magnesium, which is approaching the claimed range of 30-60 mM in the feed medium. For a 10-fold lower concentration in the batch medium, Huber’s batch medium contains 2.9 mM magnesium, which is within the claimed range of 1-3 mM magnesium in the batch medium.
Regarding claim 3, Huber’s feed medium and batch media contain glucose (“organic carbon source”) and trace elements (see [0063]).
Regarding claim 4, Huber’s feed and batch media further comprise ammonium salts ([0055] and [0063]).
Regarding the batch medium in claim 6, Huber teaches that calcium salts are in the form of calcium chloride and magnesium salts are in the form of magnesium sulfate ([0063]). Huber teaches that ammonium is in the form of ammonium chloride or ammonium sulfate ([0056]). Huber teaches in [0063] that the citric acid concentration is 2 g/L (molar mass 192 g/mol), which is equivalent to 10 mM and thus falls within the claimed range of 5-100 mM. Huber teaches trace elements comprising copper, manganese, sodium, zinc and iron ([0063]). Huber teaches that phosphate is in the form of KH2PO4 and Na2HPO4 ([0063]).
Huber teaches that the carbon source in the medium may be glucose or glycerol ([0050]). Huber teaches that when the carbon source is glycerol in the feeding medium, 100-1000 g/L may be used ([0053]), which overlaps with the claimed range of 500-800 g/L. Huber teaches that the feeding medium may contain equivalent components in a concentration which is 2-fold to 100-fold higher as compared to the batch medium ([0063]). For a 10-fold higher concentration of glycerol in the feeding medium, the concentration of glycerol in the batch medium is 10-100 g/L, which overlaps with the claimed range of 10-30 g/L.
Regarding the feeding medium, Huber teaches that calcium salts are in the form of calcium chloride and magnesium salts are in the form of magnesium sulfate ([0063]). Huber teaches that ammonium is in the form of ammonium chloride or ammonium sulfate ([0056]). Huber teaches citric acid within the claimed range of 0-20 mM (for the feeding medium containing 2-fold higher citric acid, the batch medium contains 5 mM citric acid): see [0063]. Huber teaches trace elements comprising copper, manganese, sodium, zinc and iron ([0063]). Huber teaches that phosphate is in the form of KH2PO4 and Na2HPO4 ([0063]).
Huber teaches that when the carbon source in the feeding medium is glycerol, 100-1000 g/L may be used ([0053]), which is within the claimed range of 500-800 g/L glycerol in the feed medium.
Regarding the amount of phosphate in the feeding medium, Jensen teaches omitting phosphate in the feeding medium (page 7, left column and Figure 7).
Huber does not teach an antifoaming agent in the batch medium. However, Huber teaches that foaming is undesirable during microbial cultivation ([0013]-[0014]).
Jensen’s media contains an antifoam agent (page 2, left column, “Culture media”).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to further improve the method of Huber modified by Jensen by adding an antifoam agent in the batch medium. The person of ordinary skill in the art would have been motivated to reduce the risk of foaming in the media, which Huber teaches is undesirable. The person of ordinary skill in the art would have had a reasonable expectation of success in the addition of an antifoam agent to Huber’s batch medium.
Regarding claim 7, Huber teaches that the pH is controlled to 7.0 in the fermentation process ([0080]), which is within the claimed range of between 6.7 and 7.3.
Regarding claim 8, Huber starts the fed-batch phase when the dry cell weight is 2.5 g/L (see Figure 1 on page 13). Huber also teaches that the fed-batch phase contains a growth-limiting substrate ([0027]).
Huber does not teach that the cells are grown in the batch phase to a density of at least 10 g cell dry weight per liter.
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to optimize by routine experimentation the amount of starting material (host cells) in the batch phase prior to starting the fed-batch phase. The person of ordinary skill in the art would have been motivated to maximize the subsequent yield of the recombinant protein in the method of Huber modified by Jensen. The person of ordinary skill in the art would have had a reasonable expectation of success in the optimization.
Regarding claim 9, Huber’s production cells are E. coli (Abstract), which is a strain of Escherichia.
Regarding claim 10, Huber’s process produces plasmid DNA (Abstract), and as discussed above with respect to the rejection of claim 1, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Huber’s process to produce a recombinant protein. The person of ordinary skill in the art would have been motivated to apply the media system of Huber to produce other value-added products, such as proteins.
Regarding claim 12-13, Huber teaches all elements of the claimed invention (see summary table below), except that the concentration of phosphate in the feeding medium is 0-10 mM.
Huber batch medium1 ([0063])
Huber feeding medium ([0063])
Instant claim 13 batch medium
Instant claim 13 feed medium
Calcium
0.015 mM-0.75 mM
1.5 mM
Up to 1 mM
Up to 5 mM
Magnesium
2.9 mM-14.5 mM
29 mM
1-3 mM
3-100 mM
Phosphate
7.9 mM-39.5 mM
79 mM
30-120 mM
0-10 mM
Citric acid
1.0 mM-5 mM
10 mM
Up to 100 mM
Not limited
Organic carbon source
Yes (glucose)
Yes (glucose)
Yes
Yes
Trace elements
Yes
Yes
Yes
Yes
Nitrogen source
Yes, [0055] (ammonium)
Yes, [0055] (ammonium)
Yes
Not required
1Batch medium calculated by a 2-fol to 10-fold decrease in each component relative to feeding medium. See Huber [0063].
Jensen teaches a fed-batch cultivation of E. coli for the production of human growth hormone (Abstract), which is a protein. Jensen teaches that omitting phosphate from the feeding medium in a fed-batch fermentation while increasing glucose feed rate blocks biomass formation and consequently improves the production of recombinant protein (page 7, left column and Figure 7).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Huber’s process to produce a recombinant protein rather than plasmid DNA. The person of ordinary skill in the art would have been motivated to apply the media system of Huber to produce other value-added products, such as proteins. It would have been further obvious to improve the media system of Huber by omitting phosphate in the feed medium of Huber per the teaching of Jensen. The person of ordinary skill in the art would have been motivated to improve the yield of recombinant protein. The person of ordinary skill in the art would have had a reasonable expectation of success in applying Huber’s media system to produce recombinant proteins and in applying Jensen’s technique to improve the media system of Huber.
Regarding claim 14, Huber teaches all elements of the claimed invention (see summary table below), except for the following: Huber does not teach that the concentration of phosphate in the feeding medium is 0-10 mM and the concentration of glucose in Huber’s feeding medium is slightly lower than the claimed range.
Huber batch medium1 ([0063])
Huber feeding medium ([0063])
Instant claim 14 batch medium
Instant claim 14 feed medium
Calcium
0.015 mM-0.75 mM
1.5 mM
0-1 mM
1-5 mM
Magnesium
2.9 mM-14.5 mM
29 mM
1-3 mM
3-100 mM
Phosphate
7.9 mM-39.5 mM
79 mM
30-120 mM
0-10 mM
Citric acid
1.0 mM-5 mM
10 mM
5-100 mM
Optional
Glucose
30 g/L-150 g/L
300 g/L
10-30 g/L
500-800 g/L
Trace elements
Yes
Yes
Yes
Yes
Ammonium
1.9 mM to 150 mM NH4Cl, [0055]-[0056]
In the form of NH4OH for pH control ([0056])
50-125 mM
Not required
Sulphate
2.9 mM
29 mM
5-50 mM
Not required
1Batch medium calculated by a 2-fold to 10-fold decrease in each component relative to feeding medium (see Huber [0063]), unless otherwise specified.
Jensen teaches that omitting phosphate from the feeding medium in a fed-batch fermentation while increasing glucose feed rate blocks biomass formation and consequently improves the production of recombinant protein (page 7, left column and Figure 7).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to further improve the media system of Huber by omitting phosphate in the feed medium and increasing glucose in the feed medium per the teaching of Jensen. The person of ordinary skill in the art would have been motivated to improve the yield of recombinant protein. The person of ordinary skill in the art would have had a reasonable expectation of success in applying Jensen’s technique to improve the media system of Huber.
Regarding claim 15, Huber teaches that the feed medium comprises CaCl2, MgSo4, (NH4)2SO4, NH4Cl, KH2PO4, NaH2PO4 and trace elements including copper, manganese, zinc, and iron ([0055] and [0063]). Huber teaches that the batch medium comprises the same components ([0063]).
Huber teaches that when the carbon source is glycerol in the feeding medium, 100-1000 g/L may be used ([0053]), which is within the claimed range of 500-800 g/L. Huber teaches that the feeding medium may contain equivalent components in a concentration which is 2-fold to 100-fold higher as compared to the batch medium ([0063]). For a 10-fold higher concentration of glycerol in the feeding medium, the concentration of glycerol in the batch medium is 10-100 g/L, which overlaps with the claimed range of 10-30 g/L.
Huber teaches that the amount of citric acid in the feeding medium is 10 mM ([0063]) and that the amount of citric acid in the batch medium may be between 2-fold and 100-fold less. Therefore, Huber teaches a range for the concentration of citric acid of from 0.1 mM to 5 mM in the batch medium, which is within the claimed range of 5-100 mM. Huber’s concentration of citric acid within the feed medium (10 mM) is within the claimed range of up to 20 mM citric acid.
Huber does not teach that the batch medium comprises an antifoaming agent. However, Huber teaches that foaming is undesirable during microbial cultivation ([0013]-[0014]).
Jensen’s media contains an antifoam agent (page 2, left column, “Culture media”).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to further improve the media system of Huber modified by Jensen by including an antifoam agent in the batch medium. The person of ordinary skill in the art would have been motivated to reduce the risk of foaming in the media, which Huber teaches is undesirable.
Regarding claims 17-18, Jensen teaches isolating the recombinant protein hGH by lysing the cells and performing a DNase digest in order to subsequently quantify the hGH via an ELISA assay (page 2, right column, Analytical Methods, hGH through top left paragraph on page 3).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Huber (EP 1 584 680 A1; cited in the IDS filed on 5/18/2023) in view of Jensen et al. (Biotechnology and bioengineering 36.1 (1990): 1-11) and as evidenced by Li et al. (Biotechnology and bioengineering 111.10 (2014): 1940-1948), as applied to claims 1-10, 12-15 and 17-18 above, further in view of Durany et al. (Process Biochemistry 40.2 (2005): 707-716).
See discussion of Huber and Jensen above, which is incorporated into this rejection as well.
Regarding claim 11, Huber teaches E. coli cells comprising a plasmid (“genetic construct”) in [0077]. However, Huber does not teach a genetic construct to product a protein.
Jensen’s host cells comprise a genetic construct to produce human growth hormone and expression of the human growth hormone is under the control of a constitutive promoter (page 2, Materials and Methods, Organism, paragraph 1).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Huber’s process to produce a recombinant protein rather than plasmid DNA by replacing Huber’s plasmid (“genetic construct”) with Jensen’s plasmid. The person of ordinary skill in the art would have been motivated to apply the media system of Huber to produce other value-added products, such as proteins. The person of ordinary skill in the art would have had a reasonable expectation of success in this modification.
Huber and Jensen do not teach that the E. coli host cells comprise a genetic construct comprising an inducible promoter or that the addition of an inducer controls production of the protein.
Durany teaches E. coli host cells comprising a genetic construct to express Fuc-1-PA, and the construct is under the control of the IPTG inducible promoter (page 708, left column, “2.1. Bacterial strain” paragraph). IPTG is added to the culture medium to induce expression (page 709, right column, paragraph 3).
It would have been further obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to replace Jensen’s constitutive promoter with Durany’s inducible promoter in the method of Huber modified by Jensen such that recombinant protein production would have been controlled by the addition of IPTG. The person of ordinary skill in the art would have been motivated to more tightly regulate production of the recombinant protein. The person of ordinary skill in the art would have had a reasonable expectation of success in this modification.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/LOUISE W HUMPHREY/Supervisory Patent Examiner, Art Unit 1657
/CANDICE LEE SWIFT/Examiner, Art Unit 1657