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 .
Status of the Claims
Claims 1-4, 6-8, 10-12, 14-15,17-18, 20-23, and 27-28 are pending (claim set as filed on 05/05/2026).
Applicant’s election without traverse of Group I, drawn to the method claims, in the reply filed on 12/01/2025 is again acknowledged. Claims 27-28 stand withdrawn as being directed to the non-elected device claims.
Therefore, only method claims 1-4, 6-8, 10-12, 14-15,17-18, and 20-23 are presented for examination.
Priority
This application is a 371 of PCT/IL2021/051009 filed on 08/18/2021, which has a provisional application no.: 63/066,925 filed on 08/18/2020.
Information Disclosure Statement
The Information Disclosure Statement (IDS) submitted on 06/23/2026 is acknowledged. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the Examiner.
Withdrawal of Rejections
The response and amendments filed on 05/05/2026 are acknowledged. Any previously applied minor objections and/or minor rejections (i.e., formal matters), not explicitly restated herein for brevity, have been withdrawn necessitated by Applicant’s formality corrections and/or amendments. For the purposes of clarity of the record, the reasons for the Examiner’s withdrawal, and/or maintaining if applicable, of the substantive or essential claim rejections are detailed directly below and/or in the Examiner’s response to arguments section.
The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Maintained Rejections
Claim Rejections - 35 USC §103, Obviousness
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-4, 6-8, 10-12, 14-15, 17-18, and 20-23 are rejected under 35 U.S.C. 103 as being unpatentable over She (US 2018/0092348 - cited by the ISA and in the IDS filed on 03/18/2024) in view of Brockbank (US 2018/0192639 A1).
She’s general disclosure relates to the field of cryopreservation and, in particular, relates to compositions and methods for the cryopreservation of biological materials such as cells and tissues (see abstract & ¶ [0002]). Cryopreservation is used for long-time preservation of cells and tissues for cell transplantation, tissue engineering, and regenerative medicine (see ¶ [0003], [0071]). Vitrification is defined by the viscosity of the sample reaching a sufficiently high value to behave like a solid but without crystallization. This glassy state can be induced in most liquids if cooling occurs rapidly. The addition of cryoprotectants can decrease the required high cooling rates (see ¶ [0006], [0076]).
Regarding the contacting with vitrification solution and cryopreserving, She teaches “a method for preserving (e.g., cryopreserving) a biological material. The method may comprise the following steps: (a) combining/mixing/contacting the present preservation composition with a biological material; (b) cooling and/or freezing the mixture; and (c) storing the biological material (e.g., at appropriate storing conditions)” (claim 7) (see ¶ [0016]-[0017], [0047], [0052], [0072], [0113]-[0115]). She teaches mixing freezing solutions with the cell suspension at a 1:1 volume ratio so that the desired working concentration can be obtained (see ¶ [0196]-[0197]: Example 1). “The temperature(s) suitable for freezing or storing the biological material may vary. For instance, cells may be frozen or stored at a temperature ranging from about -70° C to about -200° C. In one embodiment, cells may be frozen or stored at or above the boiling temperature of liquid nitrogen, i.e., at or above about -196°C” (see ¶ [0054], [0072]-[0073]). She further teaches “a non-linear cooling cryopreservation method is achieved by a non-constant cooling rate during at least a portion of the method. In another embodiment, the non-linear cryopreservation method is achieved by a two-step cooling process, wherein the cells or tissue are cooled at a constant or non-constant rate to a first temperature and then subsequently at a constant or non-constant rate to a second temperature (e.g., storage temperature)” (see ¶ [0077]-[0078]). She also teaches “the biological material in the cryopreservation composition is exposed to a temperature less than or equal to -80°C (e.g., dry ice), less than or equal to -100°C, -196°C (e.g., liquid nitrogen), or -205°C (e.g., slush nitrogen which is a mixture of liquid and solid nitrogen)” (see She at ¶ [0131]).
Regarding claim 8, She teaches lyophilization (see ¶ [0055], [0072], [0150], [0162] which is a freeze-drying procedure under vacuum conditions). Claim interpretation: note that the claims recite the term “optionally” in several occurrences, the MPEP 2111.04 states that “a claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure”.
Regarding claim 10, She teaches the cell suspension in the cryopreservation is distributed into cryotubes or cryovials etc., which are then placed in a freezing container (see ¶ [0140]-[0142], which is essentially devoid of air).
Regarding claim 12, She teaches the biological material in the cryopreservation composition is exposed to a temperature less than or equal to -80° C. (e.g., dry ice), less than or
equal to -100° C., -196° C. (e.g., liquid nitrogen), or -205°C. (e.g., slush nitrogen which is a mixture of liquid and solid nitrogen) (see ¶ [0131]).
Regarding claims 20-21 pertaining to the vitrification solution, She discloses cryoprotectants are used to preserve the viability of the cells and tissues during freezing. Commonly used cryoprotectants include glycerol, DMSO, and PEG. Furthermore, some additives, such as macromolecules and sugars, may be added to further decrease the damages on cells and tissues during cryopreservation (see ¶ [0004], [0106]). The cryopreservation solution comprises 0.1-0.5 M of a saccharide (e.g., trehalose), 1-5% of a macromolecule (e.g., albumin) (see ¶ [0008]-[0023], [0031]-[0042], [0059]-[0065], [0089]).
Regarding claim 23 pertaining to thawing and transplanting, She teaches “the method further comprises the step (c) thawing the frozen mixture or the combination of the cryopreservation composition and the biological material” (see ¶ [0019], [0048], [0115], [0150]-[0161]). She teaches “the present preservation compositions and methods, as well as the biological material recovered from preservation using the present preservation compositions and methods can be used for research and/or clinical application (e.g., cell-based therapies, transplantation, regenerative medicine, diagnostics and genetic testing, cell/tissue banking for surveillance, toxicity testing and for in vitro fertilization). (see ¶ [0003], [0170], [0184], [0186]-[0187]).
However, She does not explicitly or expressly teach: the exact claim language pertaining to the temperature and duration limitations (such as seen in claims 1-2, 6, 11-12, 14-15, 17-18, and 22).
Brockbank’s general disclosure relates to the field of cell, tissue, and organ preservation, particularly new ice-free formulations (e.g., for vitrification) incorporating sugars, such as disaccharides (e.g., trehalose and sucrose), and protocols that improve sample material properties and biological viability (see ¶ [0003]-[0006]). Brockbank discloses “a sample to be preserved (e.g., such as a tissue or cellular material) is vitrified when it reaches the glass transition temperature (Tg)” (see ¶ [0032]-[0033]).
The claimed temperature and/or duration conditions would have been readily apparent or prima facie obvious to one of ordinary skill in the art following the guidance of the cited reference because based upon the overall objective provided by She with respect to maximizing the integrity and viability of the biological material for long-term cryopreservation, the adjustments of particular conventional working conditions (e.g., temperature and duration) are deemed a matter of judicious selection and routine optimization which are within the purview of the skill artisan. The disclosure of She establishes the conditions of variable parameters such that one of ordinary skill in the art would recognize that the temperature conditions and duration of exposure are result effective optimizable variables. In particular, She expressly discloses:
“parameters of the freezing step and/or thawing step are optimized such that temperature ramp-up and/or ramp-down rates do not disrupt the integrity of the biological material, and does not adversely affect the viability or function of the biological material post-thaw” (see She at ¶ [0135]).
“a temperature ramp-down phase having a selected rate of temperature reduction. In some embodiments, a rate of temperature reduction in a temperature ramp-down phase is about 10°C per minute, about 1° C per minute, about 2°C per minute, about 5°C per minute, about 7°C per minute, about 12°C per minute, about 15°C per minute, about 17°C per minute, about 20°C per minute” (see She at ¶ [0136]-[0139]).
Furthermore, the secondary reference of Brockbank discloses:
“the cryoprotectant formulations supplemented with sugars (such as trehalose and or sucrose) have a reduced propensity for ice nucleation during exposure to temperatures above the glass transition temperature. Thus, cellular materials in these formulation will tolerate short term exposure to temperatures such as -80°C., for minutes or hours. The precise duration depending upon the cryoprotectant/ sugar formulation. The duration tolerated at each temperature will depend upon the relative cytotoxicity of the cryoprotectant formulation employed at that temperature” (see Brockbank at ¶ [0068]).
“the glass transition temperature of the first solution (such as a cryoprotectant formulation) may be in set at any desired level, such as, for example, in a range of from about -100°C to about -140°C, such as about -110°C to about -130°C, or -115°C to about -130°C” (see Brockbank at ¶ [0069]-[0072]).
Therefore, these are motivation for someone of ordinary skill in the art to practice or test the parameter widely to find those that are functional or optimal which then would be inclusive or cover the steps as instantly claimed. Note the MPEP 2144.05(I)(A) states “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where 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”. Furthermore, She teaches that a temperature ramp-down phase may include a flash freezing (e.g., maximal temperature reduction) step (see ¶ [0137], which is similar to a rapid freeze step) and also teaches a two-step non-linear cooling step (see ¶ [0077]-[0078]) or a slow-freezing step (see ¶ [0127]-[0130]), which allows for a different temperature exposure similar to a gradual freeze step). Absent any teaching of criticality by the Applicant concerning the temperature or duration, it would be prima facie obvious that one of ordinary skill in the art would recognize these limitations are result effective variables which can be met as a matter of routine optimization (MPEP 2144.05 II), and considering that She is not restricted in the cryopreservation protocol but rather invites modification as “freeze-drying and cryopreservation in accordance with the present disclosure may be carried out in any method suitable to the biological material. The freezing of above methods of the present disclosure can be done in any method or apparatus known in the art” (see She at ¶ [0126]).
Regarding claims 3-4 pertaining to the biological sample, She does not teach wherein said biological sample comprises a tissue or an organ being vascularized, innervated, or both. However, Brockbank teaches a large volume cellular material or sample refers to living biological material containing cellular components, whether the material is natural or manmade and includes cells, tissues and organs (see Brockbank at ¶ [0026]-[0027]); wherein an organ “refers to any organ, such as, for example, liver, lung, kidney, intestine, heart, pancreas, testes, placenta, thymus, adrenal gland, arteries, veins, lymph nodes, bone or skeletal muscle” (see Brockbank at ¶ [0027]-[0028]). Brockbank teaches “the method of any of the above aspects may be a method in which the cellular material is selected from the group consisting of heart valves, skin, tendons and peripheral nerve grafts” (i.e., vascularized or innervated) (see Brockbank at ¶ [0068], [0083], [0090]); and further discloses fingers and limb extremities (see Brockbank at ¶ [0078]). Accordingly, it would have been further obvious to envisage the biological sample being a limb, or a tissue or organ that is vascularized and/or innervated such as taught by Brockbank in the cryopreservation process of She. The ordinary artisan would have had a reasonable expectation of success is because both of the cited references are in the same field of endeavor directed to improvement of long-term cryopreservation protocols of biological materials.
Examiner’s Response to Arguments
Applicant’s amendments and arguments filed on 05/05/2026 have been fully considered but they are not persuasive and deemed insufficient to overcome the prior arts of record.
In response to Applicant’s argument (addressing page 9 of the remarks) that neither She nor Brockbank teach the specific claimed sequential combination of an ultra-cold first step followed by a warmer second step at or above a transition glass point temperature (Tg): this argument is not persuasive because “In determining the differences between the prior art and the claims, the question under 35 U.S.C. 103 is not whether the differences themselves would have been obvious, but whether the claimed invention as a whole would have been obvious”. Both the claimed invention and the cited prior arts, as a whole, are directed to the integrity, viability, and improvement of long-term cryopreservation protocols of biological materials. For instance, She expressly discloses “parameters of the freezing step and/or thawing step are optimized such that temperature ramp-up and/or ramp-down rates do not disrupt the integrity of the biological material, and does not adversely affect the viability or function of the biological material post-thaw” (see She at ¶ [0135]). She also teaches “the biological material in the cryopreservation composition is exposed to a temperature less than or equal to -80°C (e.g., dry ice), less than or equal to -100°C, -196°C (e.g., liquid nitrogen), or -205°C (e.g., slush nitrogen which is a mixture of liquid and solid nitrogen)” (see She at ¶ [0131]). Thus, it is within the purview of the ordinary artisan to perform the claimed flash freeze step to the desired temperatures followed by a temperature ramp-down such as suggested by She and wherein the secondary reference by Brockbank discloses that the precise temperature will vary depending upon the cryoprotectant sugar formulation and where the cellular materials will tolerate a short-term exposure (see Brockbank at ¶ [0068]). Brockbank teaches “the glass transition temperature of the first solution (such as a cryoprotectant formulation) may be in set at any desired level, such as, for example, in a range of from about -100°C to about -140°C, such as about -110°C to about -130°C, or -115°C to about -130°C” (see Brockbank at ¶ [0069]-[0072]). Accordingly, the determination of obviousness is not based solely on the primary reference of She, but rather it is based upon the cited references as a whole and includes the understanding of one of ordinary skill in the art.
In response to Applicant’s argument (addressing page 9 of the remarks) that She teaches the inverse of the claimed protocol: note that the MPEP 2144.04 provides “Examples directed to various common practices which the court has held normally require only ordinary skill in the art and hence are considered routine expedients are discussed below … Changes in Sequence of Adding Ingredients”. Thus, the claims were prima facie obvious because the selection of any order of performing process is obvious in the absence of new or unexpected results. Moreover, note that the claim’s transitional phrase of “comprising” is inclusive or open-ended and does not exclude additional, unrecited elements or method steps (MPEP 2111.03(I)). Thus, the claims allow for additional steps and does not necessarily exclude any other steps from the prior art.
In response to Applicant’s argument (addressing pages 10-11 of the remarks) that “the specification demonstrates the criticality of this brief slush exposure: ¶ [0201] discloses that following up to 7 seconds of slush exposure, blood reperfusion was observed with no signs of damage, whereas flaps exposed to LN slush for 10 seconds showed damage to blood vessels, and extension to 20 seconds led to complete breakage of blood vessels”: this argument is not persuasive because the criticality or unexpected results are not considered to be in commensurate in scope with the claimed invention. The MPEP 716.02(d) states that “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of non-obviousness must be commensurate in scope with the claims which the evidence is offered to support.’ In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range”. For instance, note that the claimed range states “for a period of 3-10 seconds” but Applicant notes that a 10 second exposure showed damage to blood vessels. Moreover, the claim also recites “for a period of at least 3 minutes” but the specification at ¶ [0201] noted a 2 min exposure. The MPEP 716.02(d)(II) further requires that “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range”. Therefore, Applicant is invited to demonstrate data points inside and outside of the claimed ranges (emphasis added) to illustrate criticality.
Conclusion
No claims were allowed.
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 extension fee 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 date of this final action.
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/NGHI V NGUYEN/Primary Examiner, Art Unit 1653
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