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 .
Election/Restrictions
Applicant's election without traverse of Group I (claims 1-2, 5, 11, 14, 17, 22, 24, 26, 30, 33, 36-37 and 64-65) in the reply filed on 12/14/2025 is acknowledged.
Election of the following species on the reply filed on 12/14/2025 is acknowledged:
1) a polynucleotide that shares at least 75%, 80%, 85%, 90%, 95%, 96%, 97%, 98%, 99% or 100% identity with SEQ ID NO: 9.
2) (ii), a cardiac troponin T (hTNNT2) promoter, optionally wherein the hTNNT2 promoter shares at least 75%, at least 80%, at least 85%, at least 90%, at least 95%, at least 96%, at least 97%, at least 98%, at least 99% or 100% identity with SEQ ID NO: 32, optionally wherein the expression cassette comprises exon 1 of the cardiac troponin T (hTNNT2) gene, wherein optionally the hTNNT2 promoter and exon 1 together share at least 75%, at least 80%, at least 85%, at least 90%, at least 95%, at least 96%, at least 97%, at least 98%, at least 99% or 100% identity with SEQ ID NO: 32
3) (i), the variant that shares at least 75%, at least 80%, at least 85%, at least 90%, at least 95%, at least 96%, at least 97%, at least 98%, at least 99%, at 100% identity with SEQ ID NO: 1.
Claims Status
Claims 33, 47, 52, 55, 56, and 63 have been withdrawn from consideration as being drawn to non-elected subject matter, and claims 1, 2, 5, 11, 14, 17, 22, 24, 26, 30, 36, 37 and 63-65 have been considered on the merits.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 2, 5, 11, 14, 17, 22, 24, 26, 30, 36, 37 and 64-65 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claims 1, 14, 22: The claims recite “a functional variant thereof” in regards to a polynucleotide sequence encoding Muscle LIM Protein (MLP). The instant specification defines “functional variant” as “a protein that has one or more amino-acid substitutions, insertions, or deletion compared to a parental protein that retains one or more desired activities of the parental protein” (p11 [0097]).
Thus the claims are directed to a genus of recombinant nucleic acid sequence derivatives that perform the function of MLP. The scope of the genus claimed by “a functional variant of MLP” is extremely broad and encompasses any variant of MLP which comprises any function.
Teachings of the instant specification.
The instant specification teaches the protein MLP is encoded by the gene CSRP3, and that genetic defects in CSRP3 are associated with cardiomyopathies and muscular dystrophies (p1 [0003]).
The instant specification teaches MLP isoforms A and B (p3 [0022]-[0024]). The instant specification also teaches MLP sequences can share ~75%-100% sequence identity with Seq ID NOs 1-5 and 7 (p3 [0025]-[0027], [0030]-[0031], p6 [0061]).
The instant specification teaches expression of CSRP3 in cardiomyocytes using the vectors disclosed by Seq ID NOs: 12-15 (Fig 1-5; p8 [0080]-[0085]).
The instant specification is silent on a specific function of MLP or specific regions of the sequence that can be modified while preserving function.
The state of the Art
Some MLP functional variants are known in the art. Buyandelger et al. (Eur J Phys (2011) 462;135-142) teach mutations in MLP can cause cardiomyopathy, however Buyandelger also teach that the molecular mechanisms are poorly understood (p135 col2 ¶2). Buyandelger further teach MLP is associated with cardiac and skeletal myogenesis, blood vessel remodeling, actin depolymerization, cytoskeletal stability, regulation of contractility, calcium sensitivity and mechanosensation (p1/2 col2/1 ¶2/1).
Buyandelger teach that W4R-MLP has a reduced affinity to telethonin (p137 col1 ¶2). Buyandelger disclose the K69R-MLP variant may effect both calcium sensitivity and nuclear translocation (p139 col1 ¶4).
Vafiadaki et al. (Gene (2015) 566:1;1-19) teach 10 missense and 1 frameshift mutations of CSRP3 are associated with cardiomyopathies and all known mutations are located within the first 100 amino acids of the protein, but none in the C-terminus (p7 ¶2). Vafiadaki further teach some SNPs correspond to the C-terminus of MLP, however their functional significance is unknown and they are not known to correlate with human disease (p7 PP2).
Vafiadaki also teach that, while a large number of MLP mutations are associated with cardiomyopathies, only a few (such as W4R, G58G and K69L) have been functionally characterized (p8 ¶1). Therefore, while some MLP variants are known, there is a high degree of uncertainty as to the functional consequence of variations to the MLP sequence.
Furthermore, while some MLP variants are known in the art, it is also well known that predicting function from sequence is a central problem of biology, as evidenced by Lagator et al. (elife (2022)0:e64543;1-25. Lagator teach predicting function from sequence is possible only locally in a narrow mutational neighborhood around a wildtype sequence rather than globally from any sequence (Abstract).
Lagator experimentally and theoretically estimated that 10-20% of random sequences lead to expression in general (abstract). Furthermore, it is not guaranteed that any sequence that does lead to expression of the exogenous gene will drive its expression the desired cell type.
As such, one of ordinary skill in the art would be required to undergo a
trial-and-error selection process to identify the sequences that fall within the
sequence limitations of the claims and can perform the required function. It
would be unpredictable to determine which sequences perform the function
of MLP a priori.
Conclusion
As discussed supra, the instant specification discloses Seq ID NOs 1-5 and 7 as MLP sequences, however is silent on explicit MLP function or regions known to be critical or non-critical for protein function.
The art teaches some MLP functions are known, however as discussed by Buyandelger, the mechanisms are poorly understood and thus identifying a functional variant comprises a high degree of uncertainty and would require trial-and-error experimentation.
The art also teaches MLP variants are known, primarily in the role of disease, however Vafiadaki further teach that for most MLP variants the functional role of the mutation is unknown (p4 col1/2 ¶4/1).
Therefore the species of MLP functional variants disclosed in the instant specification are not sufficient to predict the broad genus of all MLP functional variants in view of the unpredictability of predicting nucleic acid function with sequence changes, as evidenced by Lagator.
Furthermore, the instant specification provides no guidance as how to
avoid losing key structural components of the MLP protein
with an unspecified amount of nucleic acid changes to the polynucleotide
sequence.
One of ordinary skill in the art would understand that the MLP function requires specific structural features to comprise a functional protein. One of ordinary skill in the art would also understand that the effect of nucleic acid substitutions, deletions, and insertions in the coding sequence of MLP can have unpredictable effects on protein structure and thus activity and
function.
This demonstrates that, while MLP sequence variants are
disclosed in the instant specification, the effect of changes to the nucleotide sequences must be tested empirically to determine how the sequence
change affects MLP function.
MPEP states "[a] specification may call for a reasonable amount of
experimentation to make and use a patented invention. What is reasonable
in any case will depend on the nature of the invention and the underlying
art".
In the case of the instant invention, trial and error experimentation would be required to identify MLP functional variants as claimed and the species examples provided are not of a large enough breadth to impart predictability on the genus as claimed.
Note claims 2, 5, 11, 17, 24, 26, 30, 36, 37 and 64-65 depend from the rejected claims and fail to cure the deficiency.
Regarding claim 5, 17, 24, 30 and 37: The claims recite at least 75%, at least 80%, at least 85% identity with Seq ID NO: 32, Seq ID NO:1, Seq ID NO 5 or 7, Seq ID NO: 1, and Seq ID NOs 77-79, respectively.
Seq ID NO 32 is a nucleic acid sequence encoding the hTNNT2 promoter and comprising 544 nucleotides.
Seq ID NO: 1 is an amino acid sequence encoding MLP and comprising 194 residues.
Seq ID NO: 5 is a nucleic acid sequence encoding MLP and comprising 582 nucleotides.
Seq ID NOs: 77-79 are amino acid sequences encoding AAV capsid proteins comprising 736, 736 and 738 residues respectively.
The broadest reasonable interpretation of at least 75% identity with an amino acid or nucleotide sequence means that the sequence can vary by up to 25% of the positions, at any position. For a nucleotide sequence, there are three possible nucleotides that could substituted within the reference sequence at any one or more positions up to 25% of the sequence. For an amino acid sequence, there are 19 possible amino acids that could be substituted at any one or more positions within the sequence, up to 25% of the sequence.
Thus the genus of sequences claimed by the instant invention is extremely broad.
Teachings of the instant specification
The instant specification provides references sequences for the claimed genera of sequences, but does not provide guidance as to specific domains that can be altered or variants that can be used in the instant invention to generate sequences with at least 75% sequence identity with the claimed Seq ID NOs.
The state of the art:
The instant invention encompasses a broad genus of sequences with at least 75% sequence identity with nucleic acid sequences and amino acid sequences which encode a promoter sequence, MLP protein and capsid protein. These are all sequences that perform a function which is defined by the structure of the encoded nucleic acid sequence (promoter) or protein polypeptide (MLP and capsid).
It is well known in the art that predicting function from a sequence is a central problem of biology and thus there is uncertainty in changing up to 25% of the claimed sequences as evidenced by Lagator et al. (elife (2022)0:e64543;1-25). Lagator teach predicting function from sequence is possible only locally in a narrow mutational neighborhood around a wildtype sequence rather than globally from any sequence (Abstract).
Lagator experimentally and theoretically estimated that 10-20% of random sequences lead to expression in general (abstract). Furthermore, it is not guaranteed that any sequence that does lead to expression of the exogenous gene will drive its expression the desired cell type.
Furthermore, regarding the prediction of changes to a promoter sequence based on known variants, Dong et al. (Human Mutation (2019) 40;1-7) teach Genome-Wide Association Studies (GWAS) provide insights into human phenotypes and assists in identifying functional SNPs (which in a promoter region would be considered a promoter variant) (p1 col1 ¶1/2). Dong further teach that computational tools can intersect the position of variants with regulatory elements to prioritize variants in non-coding regions, however independent methods for evaluating the performance of the tools is needed (p1 col1/2). Thus the prediction of the effect of changes to a promoter sequence is uncertain and must be tested experimentally.
Regarding the prediction of changes to a sequence encoding the MLP protein, as discussed supra, while the art also teaches MLP variants are known, primarily in the role of disease, Vafiadaki further teach that for most MLP variants the functional role of the mutation is unknown (p4 col1/2 ¶4/1). Thus prediction of the effect of sequence changes within the MLP sequence on protein function is uncertain and requires experimental validation.
Regarding the prediction of changes to a capsid protein, Hartman et al. (Nature Communications (2018) 9:1385;1-11) teach that while computational methods can assist with understanding protein self-assembly, the subtly cooperative nature of protein self-assembly interactions still makes it difficult to predict how particularly amino acid substitutions will affect self-assembly behavior (p2 col1 ¶1). Hartman further teach single amino acid substitutions can lead to significant changes to the structure and function of a protein pr protein assembly, often leading to surprising outcomes, further complicating computational predictions (p2 col1 ¶1). Thus the effect of even small changes to protein capsid sequences is unpredictable and must be tested empirically.
Due the unpredictability in predicting the effect on function of even small changes to nucleic acid and polypeptide sequences, as discussed supra, one of ordinary skill in the art would be required to undergo a
trial-and-error selection process to identify the sequences that fall within the
sequence limitations of the claims and can perform the required function. It
would be unpredictable to determine which sequences perform the functions
of a promoter, an MLP or a capsid protein a priori.
Conclusion
As described supra, the instant specification provides reference sequences for comparison to the broad genus of at least 75% sequence identity.
However the instant specification provides no guidance as how to avoid losing key structural or binding components of the claimed promoter, MLP and capsid sequences with substitution of up to 25% of the residues and the art does not provide a remedy.
One of ordinary skill in the art would understand that promoter, MLP and capsid protein function requires structural components to mediate binding to nucleic acid sequences and/or amino acid sequences (e.g. effector proteins, binding partners) for a functional system. One of ordinary skill in the art would also understand that the effect of nucleic acid substitutions or amino acid substitutions in the reference sequences can have unpredictable effects on the structure and function of the promoter or proteins encoded by the sequence.
This demonstrates that, while some promoter variants, MLP variants and capsid protein variants are known in the art, substitution or deletion of up to 25% of the residues within the claimed sequence at any position of the sequence is unpredictable and the effect of said sequence changes would require trial-and-error testing.
MPEP states “[a] specification may call for a reasonable amount of experimentation to make and use a patented invention. What is reasonable in any case will depend on the nature of the invention and the underlying art”.
In the case of the instant claims trial and error and/or laborious screening methods are required to identify sequence variants as claimed and the species examples provided in the instant disclosure and art are not of a large enough breadth to impart predictability on the genus as claimed.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 14 and 26 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.
Regarding claim 14: The claim recites four functional variants i.-iv. using the phrase “and/or”. The limitation i.-iv. can be therefore be interpreted to require one of the recited functional variants (in the alternative using “or”) or to require all of the recited functional variants (inclusively; “and”). Thus the metes and bounds of the claim is unclear.
For purposes of compact prosecution the claim is interpreted in the alternative (“or”), as requiring one of the limitations i.-iv..
Regarding claim 26: As the term “at least” requires a number for the lower end, i.e. at the minimum requirement and the term “at most” requires a number for the upper end, i.e. at the maximum requirement. The term “about” does not provide clear boundary of the range. One cannot determine what the minimum number of the claimed range or the maximum number of the claimed range, and thus, it is indefinite by using “at least about” or “at most about” together in defining the range in the claims. The court held that claims reciting "at least about" were invalid for indefiniteness where there was close prior art and there was nothing in the specification, prosecution history, or the prior art to provide any indication as to what range of specific activity is covered by the term "about." Amgen, Inc. v. Chugai Pharmaceutical Co., 927 F.2d 1200, 18 USPQ2d 1016 (Fed. Cir. 1991).
Claim Rejections - 35 USC § 102
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, 11, 14, 17, 22, 24, 30, 36, 37 and 64-65 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Levin et al. (Cell Reports (2019) 26;1021-1032 and e1-e6) and evidenced by NovaPro (pAAV-IRES-hrGFP vector [online]. NovaPro [retrieved on 04/26/2026]. Retrieved from the Internet: https://www.novoprolabs.com/vector/Vgezdqobq), NCBI NP_476485.2 (NP_476485.2 [online]. NCBI [retrieved on 04/30/2026]. Retrieved from the Internet: <https://www.ncbi.nlm.nih.gov/protein/NP_476485.2?report=genbank&log$=protalign&blast_rank=1&RID=Z6T0T6RG014NCBI) and NCBI NM_057144.2 (NM_057144.2 [online]. NCBI [retrieved on 04/30/2026]. Retrieved from the Internet: https://www.ncbi.nlm.nih.gov/nuccore/NM_057144.2).
Regarding claims 1, 14 and 36-37 The claim comprises optional elements which are interpreted as not required for the claimed invention. Thus the broadest reasonable interpretation of the invention requires a polynucleotide comprising an expression cassette which comprises a polynucleotide sequence encoding Muscle Lim Protein (MLP) or a functional variant thereof, operatively linked to a promoter.
Levin teach Muscle LIM protein (MLP) expression correlates with the ability of retinal ganglion cells to regenerate injured axons (abstract). Levin further teach adult rats receive intravitreal injections of MLP-AAV for over expression of MLP (Fig 3a, p1025 col2 ¶2). MLP-AAV for overexpression reads on a polynucleotide comprising an expression cassette comprising a polynucleotide sequence encoding MLP. Levin teach exogenous MLP increases retinal ganglion cell neurite growth (Fig 5 G). Therefor the MLP taught by Levin is considered functional because it induces an effect (increased neurite length). The MLP-AAV vector taught by Levin is also considered a gene therapy vector because it improves neurite growth (Fig 5G).
Levin teach MLP-AAV is constructed by cloning MLP cDNA into the pAAV-IRES-hrGFP vector (methods -e3 ¶4). As evidenced by NovaPro, the pAAV-IRES-hrGFP expression vector uses the CMV promoter to drive transgene expression, thus MLP is operatively linked to a promoter (NovaPro p1).
Regarding claim 11: Levin teach MLP-AAV is constructed by cloning MLP cDNA into the pAAV-IRES-hrGFP vector (methods -e3 ¶4). As evidenced by NovaPro, the pAAV-IRES-hrGFP expression vector comprises a poly(A) signal.
Regarding claim 17: The claim requires an amino acid sequence with at least 75% identity with Seq Id NO:1.
Levin teach MLP is cloned from rat retinal (Supplementary e3 ¶4). Rat MLP (NCBI NP_476485.2) comprises 96% sequence identity with the instant Seq ID NO:1 (see below; Query is Seq ID NO:1 and Sbjct is rat MLP):
Query 1 MPNWGGGAKCGACEKTVYHAEEIQCNGRSFHKTCFHCMACRKALDSTTVAAHESEIYCKV 60
MPNWGGGAKCGAC+KTVYHAEEIQCNGRSFHKTCFHCMACRKALDSTTVAAHESEIYCKV
Sbjct 1 MPNWGGGAKCGACDKTVYHAEEIQCNGRSFHKTCFHCMACRKALDSTTVAAHESEIYCKV 60
Query 61 CYGRRYGPKGIGYGQGAGCLSTDTGEHLGLQFQQSPKPARSVTTSNPSKFTAKFGESEKC 120
CYGR+YGPKGIG+GQGAGCLSTDTGEHLGLQFQQSPKPAR+ TTSNPSKF+AKFGESEKC
Sbjct 61 CYGRKYGPKGIGFGQGAGCLSTDTGEHLGLQFQQSPKPARAATTSNPSKFSAKFGESEKC 120
Query 121 PRCGKSVYAAEKVMGGGKPWHKTCFRCAICGKSLESTNVTDKDGELYCKVCYAKNFGPTG 180
PRCGKSVYAAEKVMGGGKPWHKTCFRCAICGKSLESTNVTDKDGELYCKVCYAKNFGPTG
Sbjct 121 PRCGKSVYAAEKVMGGGKPWHKTCFRCAICGKSLESTNVTDKDGELYCKVCYAKNFGPTG 180
Query 181 IGFGGLTQQVEKKE 194
IGFGGLT QVEKKE
Sbjct 181 IGFGGLTHQVEKKE 194
Thus the disclosure of Levin reads on the invention as claimed.
Regarding claim 22: Levin teach the nucleotide sequence encoding the MLP protein is cloned from rat. CSRP3 is the name of the gene that encodes the MLP protein, thus the disclosure of Levin reads on the invention as claimed.
Regarding claim 24: The claim requires a nucleotide sequence with at least 75% identity with Seq Id NO:5.
Levin teach MLP is cloned from rat retina (Supplementary e3 ¶4). The nucleotide sequence encoding rat MLP (NCBI NM_057144.2) comprises 90% sequence identity with Seq ID NO: 5 (see below; Query is Seq ID NO:5 and Sbjct is rat CSRP3):
Query 1 ATGCCAAACTGGGGCGGAGGCGCAAAATGTGGAGCCTGTGAAAAGACCGTCTACCATGCA 60
||||| |||||||| ||||| ||||||||||||||||| || ||||| || |||||||||
Sbjct 122 ATGCCGAACTGGGGTGGAGGTGCAAAATGTGGAGCCTGCGACAAGACGGTTTACCATGCA 181
Query 61 GAAGAAATCCAGTGCAATGGAAGGAGTTTCCACAAGACGTGTTTCCACTGCATGGCCTGC 120
|||||||||||||||||||| ||||| ||||| ||||| |||||||||||||||||||||
Sbjct 182 GAAGAAATCCAGTGCAATGGGAGGAGCTTCCATAAGACCTGTTTCCACTGCATGGCCTGC 241
Query 121 AGGAAGGCTCTTGACAGCACGACAGTCGCGGCTCATGAGTCGGAGATCTACTGCAAGGTG 180
||||||||||| |||||||| ||||| || ||||||||||| ||||||||||| |||||
Sbjct 242 AGGAAGGCTCTGGACAGCACCACAGTGGCAGCTCATGAGTCAGAGATCTACTGTAAGGTC 301
Query 181 TGCTATGGGCGCAGATATGGCCCCAAAGGGATCGGGTATGGACAAGGCGCTGGCTGTCTC 240
||||||||||||| ||||||||||| |||||||||| |||||||||||||||||| |||
Sbjct 302 TGCTATGGGCGCAAGTATGGCCCCAAGGGGATCGGGTTTGGACAAGGCGCTGGCTGCCTC 361
Query 241 AGCACAGACACGGGCGAGCATCTCGGCCTGCAGTTCCAACAGTCCCCAAAGCCGGCACGC 300
||||||||||| |||||||| || ||||||||||||||||| ||||||||||| |||||
Sbjct 362 AGCACAGACACCGGCGAGCACCTTGGCCTGCAGTTCCAACAATCCCCAAAGCCAGCACGT 421
Query 301 TCAGTTACCACCAGCAACCCTTCCAAATTCACTGCGAAGTTTGGAGAGTCCGAGAAGTGC 360
||| ||||| |||||||||||||| ||| |||||||||||||||| || |||||||||
Sbjct 422 GCAGCCACCACGAGCAACCCTTCCAAGTTCTCTGCGAAGTTTGGAGAATCAGAGAAGTGC 481
Query 361 CCTCGATGTGGCAAGTCAGTCTATGCTGCTGAGAAGGTTATGGGAGGTGGCAAGCCTTGG 420
|| ||||| || ||||| || ||||||||||||||||| ||||||||||||||||| |||
Sbjct 482 CCACGATGCGGAAAGTCGGTATATGCTGCTGAGAAGGTCATGGGAGGTGGCAAGCCCTGG 541
Query 421 CACAAGACCTGTTTCCGCTGTGCCATCTGTGGGAAGAGTCTGGAGTCCACAAATGTCACT 480
|| |||||||| || ||||| ||||||||||||||||| |||||||||||||||||||||
Sbjct 542 CATAAGACCTGCTTTCGCTGCGCCATCTGTGGGAAGAGCCTGGAGTCCACAAATGTCACT 601
Query 481 GACAAAGATGGGGAACTTTATTGCAAAGTTTGCTATGCCAAAAATTTTGGCCCCACGGGT 540
||||| |||||||| ||||||||||||||||||||||||||||||||||||||||| ||
Sbjct 602 GACAAGGATGGGGAGCTTTATTGCAAAGTTTGCTATGCCAAAAATTTTGGCCCCACAGGC 661
Query 541 ATTGGGTTTGGAGGCCTTACACAACAAGTGGAAAAGAA 578
|||||||||||||| |||||||| ||||||||||||||
Sbjct 662 ATTGGGTTTGGAGGGCTTACACACCAAGTGGAAAAGAA 699
Thus the disclosure of Levin reads on the invention as claimed.
Regarding claim 30: The claim recites optional components that are not considered required for the instant claim, as discussed supra. The claim recites options i. and ii. in the alternative (and/or). Thus the broadest reasonable interpretation of the claim requires only the polynucleotide of claim 1 flanked by 5’ and 3’ inverted terminal repeats.
Levin teach MLP-AAV is constructed by cloning MLP cDNA into the pAAV-IRES-hrGFP vector (methods -e3 ¶4). As evidenced by NovaPro, the pAAV-IRES-hrGFP vector expression cassette is flanked by 5’ and 3’ ITRs (NovaPro p1).
Regarding claim 64: Levin teach adult rats receive intravitreal injections of MLP-AAV for over expression of MLP (Fig 3a, p1025 col2 ¶2). An intravitreal injection of a vector is necessarily a pharmaceutical composition of the vector and thus reads on the instant invention.
Regarding claim 65: The teachings of Levin are discussed supra. A kit is broadly interpreted as a composition comprising the components required for the claimed kit. The instant invention requires a pharmaceutical composition comprising a vector comprising a polynucleotide comprising an expression cassette comprising a polynucleotide sequence encoding MLP.
As discussed supra, Levin teach the combination of components required by the claimed kit, and thus anticipate the kit as claimed.
Therefore the invention as claimed is anticipated by Levin et al..
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 2 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Levin et al. (Cell Reports (2019) 26;1021-1032 as evidenced by NovaPro, NCBI NP_476485.2 and NCBI NM_057144.2 as applied to claims 1, 11, 14, 17, 22, 24, 30, 36, 37 and 64-65 above, and further in view of Marian et al. (Circ Res (2017) 121:7;1-48), Mearini et al. (Nature Communications (2014) 5:5515;1-10) and Ni et al. (Circ Res (2019) p256-262).
Claims 1, 11, 14, 17, 22, 24, 30, 36, 37 and 64-65 are anticipated by Levin et al and thus are also rendered obvious (see above).
Regarding claims 2 and 5: Levin teach the AAV vector for MLP-AAV is pAAV-IRES-hrGFP vector (methods -e3 ¶4). As evidenced by NovaPro, the pAAV-IRES-hrGFP vector comprises the CMV promoter. Levin do not teach the promoter is the cardiac specific promoter troponin T or shares at least 75% identity with Seq ID NO: 32.
Marian teach hypertrophic cardiomyopathy (HCM) is a genetic disorder and an important cause of sudden cardiac death (abstract). Marian further teach that mutations in CSRP3 (the gene encoding muscle LIM protein) are established causes of HCM (p3 ¶2; Table 1A). Marian teach that current treatment of patients with HCM does not target the underlying genetic defect and is therefore not effective in prevention or induction of regression of cardiac hypertrophy and fibrosis (p18/19 ¶4/1).
Mearini teach hypertrophic cardiomyopathy (HCM) is the most prevalent inherited cardiac disease and that MYBPC3 (the gene encoding cMyBP-C) is the most frequently mutated gene (p2 col1 ¶1). Mearini further teach delivery of Mybpc3 using an AAV vector (gene replacement therapy) prevents development of HCM in a mouse model of HCM which comprises a mutation in MYBPC3 (p2 col1 ¶2/3). Mearini teach the AAV vector delivers the transgene under the control of human cardiac troponin T promoter (hTTNT2 promoter) (p2 col1 ¶4). Mearini do not disclose the nucleic acid sequence of the hTTNT2 promoter.
Ni teach AAV vectors containing cardiac troponin T promotor show transgene (GFP) expression in all 4 chambers of the heart (abstract). Ni discloses the hTNNT2 promoter sequence is positions 180-723 of the AAV9-TNT4-GFP vector (supplementary p11). The hTNNT2 promoter taught by Ni shares 100% sequence identity with Seq ID NO: 32 of the instant disclosure. See below for an alignment of Seq ID NO: 32 and the promoter disclosed by Ni. Seq ID NO: 32 and the Sequence of Ni are labeled as Query and Sbjct respectively:
Query 1 CTCAGTCCATTAGGAGCCAGTAGCCTGGAAGATGTCTTTACCCCCAGCATCAGTTCAAGT 60
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Sbjct 1 CTCAGTCCATTAGGAGCCAGTAGCCTGGAAGATGTCTTTACCCCCAGCATCAGTTCAAGT 60
Query 61 GGAGCAGCACATAACTCTTGCCCTCTGCCTTCCAAGATTCTGGTGCTGAGACTTATGGAG 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Sbjct 61 GGAGCAGCACATAACTCTTGCCCTCTGCCTTCCAAGATTCTGGTGCTGAGACTTATGGAG 120
Query 121 TGTCTTGGAGGTTGCCTTCTGCCCCCCAACCCTGCTCCCAGCTGGCCCTCCCAGGCCTGG 180
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Sbjct 121 TGTCTTGGAGGTTGCCTTCTGCCCCCCAACCCTGCTCCCAGCTGGCCCTCCCAGGCCTGG 180
Query 181 GTTGCTGGCCTCTGCTTTATCAGGATTCTCAAGAGGGACAGCTGGTTTATGTTGCATGAC 240
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Sbjct 181 GTTGCTGGCCTCTGCTTTATCAGGATTCTCAAGAGGGACAGCTGGTTTATGTTGCATGAC 240
Query 241 TGTTCCCTGCATATCTGCTCTGGTTTTAAATAGCTTATCTGAGCAGCTGGAGGACCACAT 300
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Sbjct 241 TGTTCCCTGCATATCTGCTCTGGTTTTAAATAGCTTATCTGAGCAGCTGGAGGACCACAT 300
Query 301 GGGCTTATATGGCGTGGGGTACATGTTCCTGTAGCCTTGTCCCTGGCACCTGCCAAAATA 360
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Sbjct 301 GGGCTTATATGGCGTGGGGTACATGTTCCTGTAGCCTTGTCCCTGGCACCTGCCAAAATA 360
Query 361 GCAGCCAAcaccccccacccccaccgccatccccctgccccacccgtccccTGTCGCACA 420
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Sbjct 361 GCAGCCAACACCCCCCACCCCCACCGCCATCCCCCTGCCCCACCCGTCCCCTGTCGCACA 420
Query 421 TTCCTCCCTCCGCAGGGCTGGCTCACCAGGCCCCAGCCCACATGCCTGCTTAAAGCCCTC 480
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Sbjct 421 TTCCTCCCTCCGCAGGGCTGGCTCACCAGGCCCCAGCCCACATGCCTGCTTAAAGCCCTC 480
Query 481 TCCATCCTCTGCCTCACCCAGTCCCCGCTGAGACTGAGCAGACGCCTCCAGGATCTGTCG 540
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Sbjct 481 TCCATCCTCTGCCTCACCCAGTCCCCGCTGAGACTGAGCAGACGCCTCCAGGATCTGTCG 540
Query 541 GCAG 544
||||
Sbjct 541 GCAG 544
It would have been obvious to one of ordinary skill in the art to adapt the composition of Levin drawn to a polynucleotide comprising an expression cassette comprising a polynucleotide sequence encoding MLP by using the cardiac specific hTNNT2 promoter as taught by Ni.
One of ordinary skill in the art would have been motivated to modify the expression cassette as taught by Levin by replacing the CMV promoter with the hTNNT2 promoter to for the purposes of expressing the MLP protein specifically in cardiac cells because Marian teach mutations in CRP3 cause HCM and Mearini teach gene replacement therapy using an AAV to deliver a transgene with expression under the control of the hTNNT2 promoter is successful in treating a mouse model of HCM.
One would have had a reasonable expectation of success because the disclosures are drawn to functional components of AAV vectors used for delivering a transgene for gene therapy. One of ordinary skill in the art would understand that exchanging known functional components of a gene delivery system uses standard methods known in the art and the results would be predictable.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Levin et al. (Cell Reports (2019) 26;1021-1032 as evidenced by NovaPro, NCBI NP_476485.2 and NCBI NM_057144.2 as applied to claims 1, 11, 14, 17, 22, 24, 30, 36, 37 and 64-65 above, and further in view of Ostedgaard et al. (PNAS (2005) 102:8;1-6).
Claims 1, 11, 14, 17, 22, 24, 30, 36, 37 and 64-65 are anticipated by Levin et al and thus are also rendered obvious (see above).
Regarding claim 26: The teachings of Levin are discussed supra. Levin is silent as to the size of the expression cassette.
Ostedgaard et al. (PNAS (2005) 102:8;1-6) teach AAV vectors for gene transfer therapy for a human disease (CFTR) (abstract). Ostedgaard further teach the optimal insert size for AAV vectors is 4.1-4.9 kb (p1 col1 ¶3).
MPEP 2131.03 reads “"[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated' if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985)”
It would have been obvious to one of ordinary skill in the art to adapt the composition of Levin drawn to a polynucleotide comprising an expression cassette comprising a polynucleotide sequence encoding MLP by using an expression cassette (insert) of 4.1-4.9 kb as taught by Ostedgaard.
One of ordinary skill in the art would have been motivated to modify the expression cassette as taught by Levin by incorporating an expression cassette of 4.1-4.9 kb because Ostedgaard teach 4.1-4.9 kb is the optimal insert size for an AAV vector.
One would have had a reasonable expectation of success because both disclosures are drawn to AAV vectors.
Claim 65 is rejected under 35 U.S.C. 103 as being unpatentable over Levin et al. (Cell Reports (2019) 26;1021-1032 as evidenced by NovaPro, NCBI NP_476485.2 and NCBI NM_057144.2 as applied to claims 1, 11, 14, 17, 22, 24, 30, 36, 37 and 64-65 above.
Claims 1, 11, 14, 17, 22, 24, 30, 36, 37 and 64-65 are anticipated by Levin et al and thus are also rendered obvious (see above).
Regarding claim 65: The teachings of Levin are discussed supra. While the teaching of Levin does anticipate the claim, as discussed supra under USC 102, the limitation is also considered obvious.
While Levin do not explicitly disclose a kit comprising a pharmaceutical composition of the MLP-AAV, Levin do describe all the limitations in the kit claims in combination and thus read on the kit product as claimed. It is well-known in the art to separately package ingredients to be combined together for the known advantage of improved storage and prevention of premature reaction and thus it would have been obvious for one of ordinary skill in the art to generate a kit based on the disclosure of Levin and what was commonly known in the art at the time of the invention.
Therefore the invention as claimed is rendered obvious by Levin et al., Marian et al., Mearini et al., Ni et al., Patricio et al. and Ostedgaard et al..
Conclusion
No claims are allowed.
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/ANDREA LYNNE MORRIS SPENCER/Examiner, Art Unit 1631
/TAEYOON KIM/Primary Examiner, Art Unit 1631
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