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
This application is a 371 of PCT/EP2021/071058.
The response filed on October 3, 2025 has been entered.
Election/Restrictions
Applicant’s election of Group I with a species election of (1) B. licheniformis as the cell host cell and (2) aprE promoter as the promoter in the reply filed on October 3, 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claim 19 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on October 3, 2025.
Status of Claims
Claims 1-19 are pending.
Claim 19 are withdrawn.
Claims 1-18 are under examination.
Foreign Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on June 7, 2023 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claims 1-2 and 16-17 are objected to because of the following informalities: The microorganisms in claims 1-2 and 16-17 should be italicized. 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.
Claim 11 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 11 recites the limitations “constant rate is within the range of about 70% to about 20”. The metes and bounds of the limitation in the context of the above claim are not clear. The claim does not recite the reference rate. Therefore, it is unclear what rates constitute “about 70% to about 20%. Clarification is requested.
Claim 18 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 18 recites the limitations “wherein said at least one feed solution”. The metes and bounds of the limitation in the context of the above claim are not clear. Claim 1 recites “at least one feed solution” in steps (b) and (c). It is unclear if the “at least one feed solution” recited in claim 18 refers to the at least one feed solution in step (b) or step (c). Clarification is requested.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 18 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 18 recites that the feed solution comprises at least one carbon source. However, claim 1 recites that the at least one feed solution provides a carbon source. Therefore, claim 18 fails to further limit 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 (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.
Claim(s) 1-2, 5-6, 8-13, and 16-18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sun (An auto-inducible expression and high cell density fermentation of Beefy Meaty Peptide with Bacillus subtilis. Bioprocess Biosyst Eng. 2020 Apr;43(4):701-710 – form PTO-1449).
Regarding claims 1 and 16, Sun discloses a method for cultivating a Bacillus subtilis host cell (abstract), comprising the steps of (a) inoculating a fermentation medium with a Bacillus host cell comprising an expression construct for a gene encoding a protein of interest (8BMP) (abstract and page 702, 2nd and 3rd full paragraphs); and (b) cultivating for a first cultivation phase the Bacillus subtilis host cell in said fermentation medium under conditions conducive for the growth of the Bacillus subtilis host cell and the expression of the protein of interest (8BMP) operably linked to a promoter, wherein the cultivation of the Bacillus subtills host cell comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at increasing rates (abstract, page 702, 2nd and 3rd full paragraphs, page 703 “The feeding strategies”, and Fig. 3); and (c) cultivating for a second cultivation phase the Bacillus subtilis host cell culture obtained in step (b) under conditions conducive for the growth of the Bacillus subtilis host cell and the expression of the protein of interest, wherein the cultivation comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at a constant rate, at decreasing rates or at rates increasing less than the rates in step (b), wherein said constant rate or the starting rate of said decreasing rates or the starting rate of said rates increasing less than the rates in step (b) is below the maximum rate of the first cultivation phase (abstract, page 702, 2nd and 3rd full paragraphs, page 703 “The feeding strategies”, and Fig. 3); wherein the expression construct comprises an inducer-independent promoter operably linked to the gene encoding the 8BMP (page 702, 1st full paragraph).
Regarding claim 2, Sun discloses obtaining the 8BMP (page 702, last paragraph).
Regarding claim 5, Sun discloses that the increasing rate in step (b) is exponential (page 702, “The feeding strategies”).
Regarding claim 6, Sun discloses that the exponential rate has a factor of at least about 0.13h-1 and a starting amount of at least 1 g of the carbon source (Fig. 3).
Regarding claim 8, Sun discloses a first cultivation phase for 12 hrs (page 702, “The feeding strategies”).
Regarding claim 9, Sun discloses that the feed solution of step (c) is provided at a constant rate (page 702, “The feeding strategies”).
Regarding claim 10, Sun discloses that the constant rate is below the maximum rate of the feeding rates of the first cultivation (page 702, “The feeding strategies” and Fig. 3).
Regarding claim 11, Sun discloses that the constant rate is within the rage of about 70% to about 20% (page 702, “The feeding strategies” and Fig. 3).
Regarding claim 12, Sun discloses that the second cultivation is carried out for about 8 hrs (page 702, “The feeding strategies”).
Regarding claim 13, Sun discloses that the cell culture is depleted from the carbon source after inoculation and prior to the first cultivation (Fig.3).
Regarding claim 17, Sun discloses introduction of an expression construct for the gene encoding the protein of interest by genetic modification (page 702, right column).
Regarding clam 18, Sun discloses that the feed solution comprises at least one carbon source (page 702, “The feeding strategies”).
Therefore, the reference of Sun anticipates claims 1-2, 5-6, 8-13, and 16-18.
Claim(s) 1, 3-4, 8, and 13-18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Stocks (WO 2007/093179 – cited previously on form PTO-892).
Regarding claim 1, Stocks discloses a method for cultivating various Bacillus host cells (abstract, page 7, lines 25-34, and claim 1), comprising the steps of (a) inoculating a fermentation medium with a Bacillus host cell comprising an expression construct for a gene encoding a protein of interest (page 4, lines 1-26 and claim 1); and (b) cultivating for a first cultivation phase the Bacillus host cell in said fermentation medium under conditions conducive for the growth of the Bacillus host cell and the expression of the protein of interest (hyaluronan synthase) operably linked to a promoter, wherein the cultivation of the Bacillus host cell comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at increasing rates (page 4, lines 1-26, page 5, lines 1-10, page 22, lines 19-24, and claim 1); and (c) cultivating for a second cultivation phase the Bacillus host cell culture obtained in step (b) under conditions conducive for the growth of the Bacillus host cell and the expression of the protein of interest, wherein the cultivation comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at a constant rate, at decreasing rates or at rates increasing less than the rates in step (b), wherein said constant rate or the starting rate of said decreasing rates or the starting rate of said rates increasing less than the rates in step (b) is below the maximum rate of the first cultivation phase (page 4, lines 1-26, page 22, lines 19-24, and claim 1); wherein the expression construct comprises various inducer-independent or a constitutively active promoters, operably linked to the gene encoding the protein of interest (page 13 line 13 through page 15 line 17)
Regarding claim 3, Stocks discloses using a signal peptide to secre the polypeptide (page 17, lines 3-25).
Regarding claim 4, Stocks discloses that the promoter is an amyQ promoter (page 14, lines 8-14).
Regarding claim 8, Stocks discloses a first cultivation phase for 7 hrs (page 22, lines 19-24).
Regarding claim 13, Stocks discloses that the cell culture is depleted from the carbon source after inoculation and prior to the first cultivation (page 22, lines 19-24).
Regarding claim 14, Stocks discloses a first temperature for the first cultivation and a second temperature for the second cultivation (claim 1 ad pages 21-23).
Regarding claim 15, Stocks discloses a temperature difference of 3°C-7°C (claim 27).
Regarding claim 16, Stocks discloses that the Bacillus host cell is a Bacillus licheniformis host cell (page 7, lines 25-34).
Regarding claim 17, Stocks discloses introduction of an expression construct for the gene encoding the protein of interest by genetic modification (page 8, line 16 through page 9, line 12).
Regarding clam 18, Stocks discloses that the feed solution comprises at least one carbon source (page 22, lines 19-24).
Therefore, the reference of Stocks anticipates claims 1, 3-4, 8, and 13-18.
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.
Claim(s) 1-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sun (An auto-inducible expression and high cell density fermentation of Beefy Meaty Peptide with Bacillus subtilis. Bioprocess Biosyst Eng. 2020 Apr;43(4):701-710 – form PTO-1449), Rij (WO 2015/118126 – form PTO-1449), and Stocks (WO 2007/093179 – cited previously on form PTO-892).
Regarding claims 1 and 16, Sun discloses a method for cultivating a Bacillus subtilis host cell (abstract), comprising the steps of (a) inoculating a fermentation medium with a Bacillus host cell comprising an expression construct for a gene encoding a protein of interest (8BMP) (abstract and page 702, 2nd and 3rd full paragraphs); and (b) cultivating for a first cultivation phase the Bacillus subtilis host cell in said fermentation medium under conditions conducive for the growth of the Bacillus subtilis host cell and the expression of the protein of interest (8BMP) operably linked to a promoter, wherein the cultivation of the Bacillus subtills host cell comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at increasing rates (abstract, page 702, 2nd and 3rd full paragraphs, page 703 “The feeding strategies”, and Fig. 3); and (c) cultivating for a second cultivation phase the Bacillus subtilis host cell culture obtained in step (b) under conditions conducive for the growth of the Bacillus subtilis host cell and the expression of the protein of interest, wherein the cultivation comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at a constant rate, at decreasing rates or at rates increasing less than the rates in step (b), wherein said constant rate or the starting rate of said decreasing rates or the starting rate of said rates increasing less than the rates in step (b) is below the maximum rate of the first cultivation phase (abstract, page 702, 2nd and 3rd full paragraphs, page 703 “The feeding strategies”, and Fig. 3); wherein the expression construct comprises an inducer-independent promoter operably linked to the gene encoding the 8BMP (page 702, 1st full paragraph).
Regarding claim 2, Sun discloses obtaining the 8BMP (page 702, last paragraph).
Regarding claim 5, Sun discloses that the increasing rate in step (b) is exponential (page 702, “The feeding strategies”).
Regarding claim 6, Sun discloses that the exponential rate has a factor of at least about 0.13h-1 and a starting amount of at least 1 g of the carbon source (Fig. 3).
Regarding claim 8, Sun discloses a first cultivation phase for 12 hrs (page 702, “The feeding strategies”).
Regarding claim 9, Sun discloses that the feed solution of step (c) is provided at a constant rate (page 702, “The feeding strategies”).
Regarding claim 10, Sun discloses that the constant rate is below the maximum rate of the feeding rates of the first cultivation (page 702, “The feeding strategies” and Fig. 3).
Regarding claim 11, Sun discloses that the constant rate is within the rage of about 70% to about 20% (page 702, “The feeding strategies” and Fig. 3).
Regarding claim 12, Sun discloses that the second cultivation is carried out for about 8 hrs (page 702, “The feeding strategies”).
Regarding claim 13, Sun discloses that the cell culture is depleted from the carbon source after inoculation and prior to the first cultivation (Fig.3).
Regarding claim 17, Sun discloses introduction of an expression construct for the gene encoding the protein of interest by genetic modification (page 702, right column).
Regarding clam 18, Sun discloses that the feed solution comprises at least one carbon source (page 702, “The feeding strategies”).
However, Sun does not disclose using an aprE promoter recited, secreting the 8BMP, amount of carbon source recited in claim 7, and a first temperature in the first cultivation and that is lower than the second temperature in the second cultivation.
Regarding claim 4, use of the promoter aprE in expression of a polypeptide of interest in Bacillus was well known in the art, see Rij (page 18, line 23 through page 19, line 6).
Regarding claim 1, Stocks discloses a method for cultivating various Bacillus host cells (abstract, page 7, lines 25-34, and claim 1), comprising the steps of (a) inoculating a fermentation medium with a Bacillus host cell comprising an expression construct for a gene encoding a protein of interest (page 4, lines 1-26 and claim 1); and (b) cultivating for a first cultivation phase the Bacillus host cell in said fermentation medium under conditions conducive for the growth of the Bacillus host cell and the expression of the protein of interest (hyaluronan synthase) operably linked to a promoter, wherein the cultivation of the Bacillus host cell comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at increasing rates (page 4, lines 1-26, page 5, lines 1-10, page 22, lines 19-24, and claim 1); and (c) cultivating for a second cultivation phase the Bacillus host cell culture obtained in step (b) under conditions conducive for the growth of the Bacillus host cell and the expression of the protein of interest, wherein the cultivation comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at a constant rate, at decreasing rates or at rates increasing less than the rates in step (b), wherein said constant rate or the starting rate of said decreasing rates or the starting rate of said rates increasing less than the rates in step (b) is below the maximum rate of the first cultivation phase (page 4, lines 1-26, page 22, lines 19-24, and claim 1); wherein the expression construct comprises various inducer-independent or a constitutively active promoters, operably linked to the gene encoding the protein of interest (page 13 line 13 through page 15 line 17). Stocks discloses that the method has increased production of hyaluronic acid and thereby increased efficiency in the production of hyaluronan synthase (abstract and pages 5-7).
Regarding claim 3, Stocks discloses using a signal peptide to secret the polypeptide (page 17, lines 3-25).
Regarding claim 4, Stocks discloses that the promoter is an amyQ promoter (page 14, lines 8-14).
Regarding claim 8, Stocks discloses a first cultivation phase for 7 hrs (page 22, lines 19-24).
Regarding claim 13, Stocks discloses that the cell culture is depleted from the carbon source after inoculation and prior to the first cultivation (page 22, lines 19-24).
Regarding claim 14, Stocks discloses a first temperature for the first cultivation and a second temperature for the second cultivation (claim 1 ad pages 21-23).
Regarding claim 15, Stocks discloses a temperature difference of 3°C-7°C (claim 27).
Regarding claim 16, Stocks discloses that the Bacillus host cell is a Bacillus licheniformis host cell (page 7, lines 25-34).
Regarding claim 17, Stocks discloses introduction of an expression construct for the gene encoding the protein of interest by genetic modification (page 8, line 16 through page 9, line 12).
Regarding clam 18, Stocks discloses that the feed solution comprises at least one carbon source (page 22, lines 19-24).
Regarding claim 7, it would have been well within the knowledge of one having ordinary skill in the art to vary and optimize the concentrations of the carbon source using standard techniques and protocols. Further, “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.”. See MPEP 2144.
Therefore, in combining the teachings of the above references, it would have been obvious to one having ordinary skill in the art before the claimed invention was effectively filed to modify the method of Sun by substituting the promoter with an aprE promoter, secrete the 8BMP polypeptide into the culture medium by using a secretion signal sequence, optimize the amount of the carbon source in step (b), culture the host cell at a first temperature in the first cultivation that is lower than the 2nd temperature in the second cultivation, and substitute the Bacillus subtilis host cell of with Bacillus licheniformis. One having ordinary skill in the art would have been motivated to do so in order to further increase production and secretion of the 8BMP. One having ordinary skill in the art would have had a reasonable expectation of success at arriving at the claimed invention because Sun discloses a method of producing 8BMP in a Bacillus host cell under a first cultivation comprising a feed with an exponentially increasing rate of a carbon source and a second cultivation comprising a feed with a constant rate of a carbon source, Rij discloses use of an aprE promoter in expression of a protein of interest in Bacillus host cells, and Stocks discloses secretion of a protein of interest in Bacillus host cells, using two different temperatures in the cultivation of Bacillus/Bacillus licheniformis host cell.
Therefore, the above references render claims 1-18 prima facie obvious.
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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3-14 of copending Application No. 18/018,112 (reference application), Rij (WO 2015/118126 – form PTO-1449), and Stocks (WO 2007/093179 – cited previously on form PTO-892). Although the claims at issue are not identical, they are not patentably distinct from each other because they are claiming common subject matter, as follows: The claims of the instant application and the claims of the reference application are directed to a method of producing a protein of interest in Bacillus licheniformis.
Regarding claims 1 and 18 of the instant application, claim 1 of the reference application recites a method for cultivating a Bacillus host cell, comprising the steps of (a) inoculating a fermentation medium with a Bacillus host cell comprising an expression construct for a gene encoding a protein of interest; and (b1) cultivating for a first cultivation phase the Bacillus host cell in said fermentation medium under conditions conducive for the growth of the Bacillus subtilis host cell, wherein the cultivation of the Bacillus host cell comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at increasing rates; and (b2) cultivating for a second cultivation phase the Bacillus host cell culture obtained in step (b1) under conditions conducive for the growth of the Bacillus subtilis host cell and the expression of the protein of interest, wherein the cultivation comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at a constant rate, at decreasing rates or at rates increasing less than the rates in step (b1), wherein said constant rate or the starting rate of said decreasing rates or the starting rate of said rates increasing less than the rates in step (b) is below the maximum rate of the first cultivation phase.
Regarding claim 2 of the instant application, claim 1 of the reference application recites obtaining the protein of interest.
Regarding claim 5 of the instant application, claim 3 of the reference application recites that the increasing rates of step (b) are an exponentially increasing rates.
Regarding claim 6 of the instant application, claim 4 of the reference application recites that the exponential rate has a factor of at least about 0.13h-1 and a starting amount of at least 1 g of the carbon source (Fig. 3).
Regarding claim 7 of the instant application, claim 5 of the reference application recites that 50 g of a carbon source per kg of Bacillus host cell is present.
Regarding claim 8 of the instant application, claim 6 of the reference application recites a first cultivation phase of 3h up to 48h.
Regarding claim 9 of the instant application, claim 7 of the reference application recites that the feed solution of step (b2) is provided at a constant rate.
Regarding claim 10 of the instant application, claim 1 of the reference application recites that the constant rate is below the maximum rate of the feeding rates of the first cultivation.
Regarding claim 11 of the instant application, claim 8 of the reference application recites that the constant rate is within the rage of about 70% to about 20% (page 702, “The feeding strategies” and Fig. 3).
Regarding claim 12 of the instant application, claim 9 of the reference application recites that the second cultivation is carried out for about 40h up to 120h.
Regarding claim 13 of the instant application, claim 12 of the reference application recites that the cell culture is depleted from the carbon source after inoculation and prior to the first cultivation.
Regarding claim 14 of the instant application, claim 11 of the reference application recites a first temperature for the first cultivation and a second temperature for the second cultivation (claim 1 ad pages 21-23).
However, the claims of the reference application do not recite a promoter operably linked to the protein of interest, secretion of the protein of interest, temperature difference of about 3°C between the first and second temperatures, and introducing the gene encoding the protein of interest by genetic modification.
Regarding claims 1 and 14 of the instant application, Stocks discloses a method for cultivating various Bacillus host cells (abstract, page 7, lines 25-34, and claim 1), comprising the steps of (a) inoculating a fermentation medium with a Bacillus host cell comprising an expression construct for a gene encoding a protein of interest (page 4, lines 1-26 and claim 1); and (b) cultivating for a first cultivation phase the Bacillus host cell in said fermentation medium under conditions conducive for the growth of the Bacillus host cell and the expression of the protein of interest (hyaluronan synthase) operably linked to a promoter, wherein the cultivation of the Bacillus host cell comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at increasing rates and at a first temperature (page 4, lines 1-26, page 5, lines 1-10, page 22, lines 19-24, and claim 1); and (c) cultivating for a second cultivation phase the Bacillus host cell culture obtained in step (b) under conditions conducive for the growth of the Bacillus host cell and the expression of the protein of interest, wherein the cultivation comprises the addition of at least one feed solution and wherein the at least one feed solution provides a carbon source at a constant rate, at decreasing rates or at rates increasing less than the rates in step (b), wherein said constant rate or the starting rate of said decreasing rates or the starting rate of said rates increasing less than the rates in step (b) is below the maximum rate of the first cultivation phase and at a second temperature higher than the first temperature (page 4, lines 1-26, page 22, lines 19-24, and claim 1); wherein the expression construct comprises various inducer-independent or a constitutively active promoters, operably linked to the gene encoding the protein of interest (page 13 line 13 through page 15 line 17). Stocks discloses that the method has increased production of hyaluronic acid and thereby increased efficiency in the production of hyaluronan synthase (abstract and pages 5-7).
Regarding claim 3, Stocks discloses using a signal peptide to secret the polypeptide (page 17, lines 3-25).
Regarding claim 4, Stocks discloses that the promoter is an amyQ promoter (page 14, lines 8-14).
Regarding claim 4, use of the promoter aprE in expression of a polypeptide of interest in Bacillus was well known in the art, see Rij (page 18, line 23 through page 19, line 6).
Regarding claim 14, Stocks discloses a first temperature for the first cultivation and a second temperature for the second cultivation (claim 1 ad pages 21-23).
Regarding claim 15, Stocks discloses a temperature difference of 3°C-7°C (claim 27).
Regarding claim 16, Stocks discloses that the Bacillus host cell is a Bacillus licheniformis host cell (page 7, lines 25-34).
Regarding claim 17, Stocks discloses introduction of an expression construct for the gene encoding the protein of interest by genetic modification (page 8, line 16 through page 9, line 12).
Regarding clam 18, Stocks discloses that the feed solution comprises at least one carbon source (page 22, lines 19-24).
Therefore, it would have been obvious to one having ordinary skill in the art to modify the claims of the reference application by using an aprE promoter or amyQ promoter to express the gene encoding the protein of interest by genetic modification in Bacillus subtilis or Bacillus licheniforms and secrete the protein of interest. One having ordinary skill in the art would have been motivated to do so in order to increase expression of the protein of interest. One having ordinary skill in the art would have had a reasonable expectation of success at arriving at the claimed invention because the claims of the reference application discloses a method of producing a polypeptide of interest in a Bacillus host cell under two cultivation steps with different feed rate and temperature and introduction of a protein of interest into Bacillus subtilis/Bacillus licheniformis host cells using aprE or amyQ promoters were known in the art.
Therefore, the conflicting claims are not patentably distinct from each other.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Claims 1-19 are pending.
Claim 19 is withdrawn.
Claims 1-18 are rejected.
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/YONG D PAK/Primary Examiner, Art Unit 1652