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 .
Claims 1-6, 8-12, 18, 20, 22, 26-28, 32 and 55 are pending.
Claims 28, 32 and 55 are withdrawn from further consideration by the examiner, 37 C.F.R. 1.142(b) as being drawn to non-elected inventions.
Claims 1-6, 8-12, 18, 20, 22, 26 and 27, drawn to a pharmaceutical formulation that read on (A) sucrose as the polysaccharide, (B) polysorbate 80 as the surfactant, (C) glutamate as the buffer, and (D) SEQ ID NO: 77 as the specific bispecific antibody, are being acted upon in this Office Action.
Priority
Applicant’ claim priority to provisional application 63/069,432, filed August 24, 2020, and 63/197,020 filed June 4, 2021, is acknowledged.
Claim rejections under - 35 U.S.C. 112
The following is a quotation 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 35 U.S.C. 112 (pre-AIA ), first paragraph:
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 1-6, 8-12, 18, 20, 22, 26 and 27 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 pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
The Written Description Guidelines for examination of patent applications indicates, “the written description requirement for a claimed genus may be satisfied through sufficient description of a representative number of species by actual reduction to practice, or by disclosure of relevant, identifying characteristics, i.e., structure or other physical characteristics and/or other chemical properties, by functional characteristics coupled with a known or disclosed correlation between function and structure, or by a combination of such identifying characteristics, sufficient to show applicant was in possession of the claimed genus.” (see MPEP 2163).
Claim 1 encompasses any pharmaceutical formulation comprising (a) any bispecific antibody construct which is a fusion protein comprising any two single chain variable fragments (scFvs) joined by any linker, (b) any saccharide, (c) any surfactant, (d) any buffer, and (e) about 10 mM to about 200 mM methionine; wherein the pH of the formulation is from about 4 to about 7.
Claim 2 encompasses the formulation of claim 1, wherein the pH of the formulation is about 4.2.
Claim 3 encompasses the formulation of claim 1, wherein the saccharide is a monosaccharide or a disaccharide.
Claim 4 encompasses the formulation of claim 1, wherein the saccharide is glucose, galactose, fructose, xylose, sucrose (elected species), lactose, maltose, trehalose, sorbitol, mannitol, or xylitol.
Claim 5 encompasses the formulation of claim 4, wherein the saccharide is sucrose.
Claim 6 encompasses the formulation of claim 1, wherein the surfactant is any nonionic surfactant.
Claim 8 encompasses the formulation of claim 6, wherein the surfactant is polysorbate 20, polysorbate 40, polysorbate 60, or polysorbate 80 (elected species).
Claim 9 encompasses the formulation of claim 6, wherein the surf actant is polysorbate 80.
Claim 10 encompasses the formulation of claim 1, wherein the buffer is an acetate buffer, a glutamate buffer (elected species), a citrate buffer, a lactic buffer, a succinate buffer, a tartrate buffer, a fumarate buffer, a maleate buffer, a histidine buffer, or a phosphate buffer.
Claim 11 encompasses the formulation of claim 10, wherein the buffer is a glutamate buffer.
Claim 12 encompasses the formulation of claim 1, wherein the formulation comprises the bispecific antibody construct at a concentration of from about 1 mg/ml to about 20 mg/ml.
Claim 18 encompasses the formulation of claim 1, which comprises at least about 10% less high molecule weight (HMW) species compared to a matched formulation not comprising methionine when stored for four weeks at -15˚C.
Claim 20 encompasses a frozen pharmaceutical formulation comprising about 1 mg/ml to about 20 mg/mL bispecific antibody construct which is a fusion protein comprising any two single chain variable fragments (scFvs) joined by any linker, any sucrose, glutamic acid, polysorbate 80, and about 10 mM to about 200 mM methionine, wherein the pH of the formulation is from about 4 to about 7.
Claim 22 encompasses the e formulation of claim 21, further comprising a third domain comprising, in an amino to carboxyl order, hinge-CH2 domain-CH3 domain-linker- hinge-CH2 domain-CH3 domain.
Claim 26 encompasses the formulation of claim 21, wherein the bispecific antibody construct comprises the amino acid sequence set forth in SEQ ID NO: 20, SEQ ID NO: 21, SEQ ID NO: 22, SEQ ID NO: 23, SEQ ID NO: 33, SEQ ID NO: 43, SEQ ID NO: 44, SEQ ID NO: 45, SEQ ID NO: 55, SEQ ID NO: 65, SEQ ID NO: 66, SEQ ID NO: 76, SEQ ID NO: 77 (elected species), SEQ ID NO: 87, SEQ ID NO: 97, SEQ ID NO: 98, SEQ ID NO: 99, SEQ ID NO: 109, SEQ ID NO: 110, SEQ ID NO: 111, SEQ ID NO: 121, SEQ ID NO: 122, SEQ ID NO: 131, SEQ ID NO: 141, SEQ ID NO: 142, SEQ ID NO: 146, SEQ ID NO: 147, SEQ ID NO: 156, SEQ ID NO: 165, SEQ ID NO: 174, SEQ ID NO: 183, SEQ ID NO: 184, SEQ ID NO: 185, SEQ ID NO: 186, SEQ ID NO: 187, or SEQ ID NO: 188.
Claim 27 encompasses the formulation of claim 1, wherein the bispecific antibody construct comprises the amino acid sequence set forth in SEQ ID NO: 77.
The specification discloses:
[0091] Compositions comprising 10 mM glutamate, 9% sucrose, 0.01% PS80, 50 mM methionine, pH 4.2, were prepared, each comprising one of the following bispecific antibody constructs: BiTE®-1 (PSMA×CD3), BiTE®-2 (MSLN×CD3), BiTE®-3 (CD19×CD3), BiTE®-4 (CD33×CD3), BiTE®-5 (DLL3×CD3), BiTE®-6 (FLT3×CD3), BiTE®-7 (BCMA×CD3), and BiTE®-8 (CLDN18.2×CD3). The final protein concentration for each of BiTE®-1, BiTE®-2, BiTE®-3, BiTE®-4, BiTE®-6, BiTE®-7, and BiTE®-8 in their respective compositions was 1.5 mg/ml. The final protein concentration for BiTE®-5 was 3.75 mg/ml.
[0092] Protein samples were staged at −20° C. for 24 hours to ensure complete freezing. The samples were then stored at −15° C. for four weeks. In parallel, additional samples were stored at 4° C. and 40° C. to characterize the liquid stability of the formulation with methionine. Some samples were lyophilized to assess the impact of methionine on the lyophilized cake. Lyophilized samples were stored at 4° C. and 40° C.
[0093] The time 0 and stressed samples were evaluated for HMW content by Size Exclusion Ultra High-Performance Liquid Chromatography (SE-UHPLC). SE-UHPLC separates proteins based on differences in their hydrodynamic volumes. Molecules with higher hydrodynamic volumes elute earlier than molecules with smaller volumes. The samples were loaded onto an SE-UHPLC column (BEH200, 4.6×300 mm (Waters Corporation, 186005226)), separated isocratically, and the eluent monitored by UV absorbance. Purity was determined by calculating the percentage of each separated component as compared to the total integrated area. SE-UHPLC settings were as follows: Flow rate: 0.4 mL/min; Run time: 12 min; UV detection: 280 nm; Column temperature: Ambient; Target protein load: 6 μg; Protein compatible flow cell: 5 mm.
[0094] As shown in FIG. 1, the addition of methionine reduced frozen state aggregation levels for various bispecific antibody constructs tested after one month storage at −15° C., which represents accelerated test conditions for −30° C. storage. In a representative experiment, addition of methionine reduced the appearance of HMW species by about 25% to about 85%: BiTE®-1 HMW species reduced about 30%, BiTE®-2 HMW species reduced about 27%, BiTE®-3 HMW species reduced about 36%, BiTE®-4 HMW species reduced about 75%, BiTE®-5 HMW species reduced about 80%, BiTE®-7 HMW species reduced about 76%, and BiTE®-8 HMW species reduced about 60%.
[0095] Methionine's inhibitory effect on aggregation on frozen compositions was surprising, at least in part, because methionine did not display a similar effect on liquid compositions. The impact of methionine on liquid stability was assessed after four weeks' storage at 4° C. and 40° C., and it was determined that the excipient did not impact the liquid stability of the bispecific antibody constructs tested. See FIG. 2 and FIG. 3. The percent HMW species detected in samples stored for four weeks at 4° C. was relatively unaffected by the presence of methionine in the formulation (compare the second and fourth bars in FIG. 2). Similar results were observed under accelerated storage conditions of four weeks at 40° C. (compare the second and fourth bars in FIG. 3).
[0096] In some circumstances, therapeutic protein compositions are lyophilized for storage or transport. The impact of methionine on lyophilized stability was assessed after storage for four weeks at 4° C. and 40° C. See FIGS. 4 and 5. The higher temperature represents an accelerated stability condition. It was determined that methionine did not impact the lyophilized stability of the bispecific antibody constructs tested (compare the second and fourth bars for each construct in FIGS. 4 and 5).
[0097] The addition of other amino acids and excipients to a formulation buffer comprising a BiTE molecule, 10 mM glutamate, 9% sucrose, 0.01% PS80 did not result in a significant decrease in frozen state aggregation levels after one-month storage at −20° C. (FIGS. 6A, 6B and 6C). All proteins were evaluated at 1 mg/ml. The amino acid concentration used in FIG. 6A was 10 mM and the excipient concentration used in FIGS. 6B and 6C was 50 mM.
[0098] The data provided in this Example demonstrate the stability of the formulation of the disclosure comprising methionine at −10° C. to −40° C. (e.g., −20° C. to −35° C., such as −30° C.) for a variety of bispecific antibody constructs. Interestingly, methionine did not significantly inhibit aggregation in liquid formulations or impact the stability of a lyophilized formulation.
Example 2
[0099] Sample Preparation: An appropriate volume of 10 mM glutamate, 9% sucrose, 0.01% PS80, 200 mM methionine (pH 4.2) stock solution was added to 5 mg/mL BiTE®-5 (DLL3×CD3) (SEQ ID NO: 77) sample to achieve a final formulation of 10 mM glutamate, 9% sucrose, 0.01% PS80, pH 4.2 at varying methionine concentrations. The final protein concentration for BiTE®-5 was 2.5 mg/ml. All protein samples were staged at −20° C. for 24 hours to ensure complete freezing. The samples were then stored at −15° C. for 4 weeks. The t0 and stressed samples were evaluated for HMW content by SE-UHPLC.
[0100] SE-UHPLC Analysis: Stability samples were analyzed using SE-UHPLC (Size Exclusion Ultra High-Performance Liquid Chromatography) to monitor aggregation in the frozen state. Size Exclusion Ultra High-Performance Liquid Chromatography (SE-UHPLC) separates proteins based on differences in their hydrodynamic volumes. Molecules with higher hydrodynamic volumes elute earlier than molecules with smaller volumes. The samples are loaded onto an SE-UHPLC column (BEH200, 4.6×300 mm, (Waters Corporation, 186005226)), separated isocratically and the eluent is monitored by UV absorbance. Purity is determined by calculating the percentage of each separated component as compared to the total integrated area. SE-UHPLC settings are as follows: Flow rate: 0.4 mL/min, Run time: 12 min, UV detection: 280 nm, Column temperature: Ambient, Target protein load: 6 μg, Protein compatible flow cell: 5 mm.
[0101] Results: A methionine to BiTE molar ratio of 105 and higher was observed to reduce frozen state aggregation of BiTE®-5 (FIG. 7). Ratios below 105 did not protect against frozen state aggregation to the extent observed using molar ratios of at least 105.
Other than a formulation comprising a bispecific antibody comprising the amino acid sequence of SEQ ID NO: 77 (DLL3 x CD3 BiTE®-5) as set forth in claim 26, (b) a 10 mM glutamate, 9% sucrose, 0.01% polysorbate 80 (PS80), 200 mM methionine and a pH of 4.2 that reduce frozen state aggregation of BiTE-5 bispecific antibody format, the specification does not describe i. Complete structure, e.g., heavy and light chains variable domains, ii. Partial structure, e.g., six CDRs and functional features share by members of the genus of bispecific antibodies that correlated with binding to which antigen encompass by the claimed pharmaceutical formulation for treating any and all cancer.
Even assuming the bispecific antibody comprising the amino acid sequence of SEQ ID NO: 77, the specification discloses just one bispecific antibody that binds specifically to DLL3 and CD3 is not representative of genus. The specification does not describe a representative number of species falling with the scope of the genus or structural features common to the members of the genus so the one of skill in the art can visualize or recognize the member of the genus of the actual claimed bispecific antibody construct encompassed by the claimed pharmaceutical formulation.
An adequate written description must contain enough information about the actual makeup of the claimed products – “a precise definition, such as structure, formula, chemic name, physical properties of other properties, of species falling with the genus sufficient to distinguish the gene from other materials”, which may be present in “functional terminology when the art has established a correlation between structure and function” (Amgen page 1361).
At the time the invention was made, it was known in the art that antibodies have a large repertoire of distinct structures and that a huge variety of antibodies can be made to bind to a single epitope.
For example, Lloyd et al. taught that hundreds of functional antibody fragments can be isolated from an antibody library that bind to the same antigen wherein these antibodies have distinct heavy and light chain sequences (Lloyd et al. of record, Protein Engineering, Design & Selection 2009, 22:159-168; see, e.g., Discussion).
Similarly, Edwards et al., J Mol Biol. 2003 Nov 14;334(1): 103-118, found that over 1000 antibodies, all different in amino acid sequence, were generated to a single protein; 568 different amino acid sequences identified for the V(H) CDR3 domains of these antibodies (Abstract).
Further, even minor changes in the amino acid sequence of a heavy or light variable region, particularly the CDRs, may dramatically affect antigen-binding function and IgG binding to the neonatal Fc receptor (FcRn) and pharmacokinetics.
For example, Piche-Nicholas et al (of record, MABS 10(1): 81-94, 2018; PTO 892) teaches altering complementary-determining region (CDRs) by 1-5 mutations significantly alter binding affinity to FcRn in vitro, see entire document, abstract, p. 95, right col, in particular. Engineering CDRs by modify local charge and thus maintain affinity to FcRn at 400 nM or weaker in vitro while retaining antigen binding may have far-reaching implications in the half-life optimization efforts of IgG therapeutics with respect to in vivo pharmacokinetics, see p. 90, in particular. Given that hundreds of unique antibody structures may bind a single antigen, the structure of an antibody cannot be predicted from the structure of the antigen (as held in Amgen), and a single species, or small group of species, cannot define a structure-function relationship so as to be representative of all the antibodies that bind to that antigen (as held in Abbvie).
Further, given the lack of guidance as to the binding specificity of the bispecific antibody in the formulation, it is unpredictable which cancer can be treated with the claimed formulation. Thus a skilled artisan would reasonably conclude that applicant was not in possession of the full breadth of the claims at the time the instant application was filed.
Vas-Cath Inc. v. Mahurkar, 19 USPQ2d 1111, makes clear that “applicant must convey with reasonable clarity to those skilled in the art that, as of the filing date sought, he or she was in possession of the invention. The invention is, for purposes of the written description inquiry, whatever is now claimed.” (See page 1117.) The specification does not “clearly allow persons of ordinary skill in the art to recognize that [he or she] invented what is claimed.” (See Vas-Cath at page 1116.).
Adequate written description requires more than a mere statement that it is part of the invention and reference to a potential method for isolating it. See Fiers v. Revel, 25 USPQ2d 1601, 1606 (CAFC 1993) and Amgen Inc. v. Chugai Pharmaceutical Co. Ltd., 18 USPQ2d 1016.
One cannot describe what one has not conceived. See Fiddles v. Baird, 30 USPQ2d 1481, 1483. In Fiddles v. Baird, claims directed to mammalian FGF’s were found unpatentable due to lack of written description for the broad class. The specification provided only the bovine sequence. Thus, the specification fails to describe these DNA sequences.
For genus claims, an adequate written description of a claimed genus requires more than a generic statement of an invention's boundaries. A patent must set forth either a representative number of species falling within the scope of the genus or structural features common to the members of the genus. Kubin, Exparte, 83 USPQ2d 1410 (Bd. Pat. App. & Int. 2007); Ariad Pharms., Inc. v. Eli Lilly& Co., 598 F.3d 1336, 1350 (Fed. Cir. 2010).
Therefore, only a formulation comprising (a) a bispecific antibody comprising the amino acid sequence of SEQ ID NO: 77 (DLL3 x CD3 BiTE®-5), (b) a 10 mM glutamate, 9% sucrose, 0.01% polysorbate 80 (PS80), 200 mM methionine and a pH of 4.2 for treating DLL3 expressing cancer, but not the full breadth of the claims meets the written description provision of 35 U.S.C. § 112, first paragraph. Applicant is reminded that Vas-Cath makes clear that the written description provision of 35 U.S.C. § 112 is severable from its enablement provision (see page 1115).
Applicants’ arguments filed April 27, 2026 have been fully considered but are not found persuasive.
Applicants’ position is that the rejection is based on the Office's assertion that claims 1 and 20 do not recite sufficient structural characteristics of a bispecific antibody so as to satisfy the requirements of Section 112(a). For instance, the Office asserted at page 8 of the Action:
...the specification does not describe i. Complete structure, e.g., heavy and light chains variable domains, ii. Partial structure, e.g., six CDRs and functional features share by members of the genus of bispecific antibodies that correlated with binding to which antigen encompass by the claimed pharmaceutical formulation for treating any and all cancer.... The specification does not describe a representative number of species falling with the scope of the genus or structural features common to the members of the genus so the one of skill in the art can visualize or recognize the member of the genus of the actual claimed bispecific antibody construct encompassed by the claimed pharmaceutical formulation.
The Office also asserted that the specification does not describe a representative number of species falling within the scope of the genus or structural features common to the genus. Applicant disagrees the Office's analysis, which fails to appreciate the nature of the claimed invention.
A. The claims are directed to a formulation, not an antibody per se.
The instant claims are directed to a formulation comprising a combination of components, the combination of which provides a technical benefit of reduced aggregation of bispecific antibody constructs stored under certain conditions. The instant invention is not dependent on a particular bispecific antibody which binds particular targets and comprises particular CDR sequences (in contrast to inventions directed to new antibodies, themselves). As explained in the specification, bispecific antibody constructs such as bispecific T cell engaging (BiTE@) antibody constructs (fusion proteins comprising two single chain variable fragments (scFvs) joined by a linker) are prone to protein instability and susceptible to aggregation (i.e., the formation of high molecular weight (HMW) species) when frozen and stored at, e.g., at -30*C. Specification, paragraph [0007]. The applicant surprisingly discovered that methionine reduces the formation of bispecific antibody construct HMW species when frozen and stored at -304C. The instant claims are not directed to bispecific antibody constructs, themselves, but formulations comprising such constructs in combination with components that impart enhanced stability to, e.g., fusion proteins comprising two single chain variable fragments (scFvs) joined by a linker, regardless of binding specificity of the bispecific antibody construct.
The Office's focus on antibody CDR sequences, heavy and light chain variable domains, and antigen-binding specificity is misplaced in the context of the instant claims. M.P.E.P. § 2163 is instructive, which conveys that the specification need only describe in detail "that which is new or not conventional," citing Hybritech v. Monoclonal Antibodies, 802 F.2d 1367, 1384, 231 USPQ 81, 94 (Fed. Cir. 1986).2 In the present case, what is "new or not conventional" is the discovery that methionine reduces aggregation in frozen bispecific antibody formulations - not the bispecific antibodies themselves. As shown in the Example, methionine reduced aggregation (i.e., the appearance of HMW species) by about 25% to
2 See also Falkner v. Inglis, 79 USPQ 2d 1001 (Fed. Cir. 2006), wherein the Federal Circuit stated that there is no per se structural requirement for claims which reference biomolecules ("Specifically, we hold, in accordance with our prior case law, that (1) examples are not necessary to support the adequacy of a written description (2) the written description standard may be met (as it is here) even where actual reduction to practice of an invention is absent; and (3) there is no per se rule that an adequate written description of an invention that involves a biological macromolecule must contain a recitation of known structure."). about 85% in frozen formulations comprising bispecific antibody constructs stored at -304C for a variety of different bispecific antibody constructs having structure recited in claim 1 and 20 (fusion proteins comprising two scFvs joined by a linker) and binding different targets. The formulation is not dependent on the bispecific antibody construct having particular CDR sequences. The claims recite sufficient structural characteristics of the "genus" of bispecific antibody constructs in the context of the instant invention - fusion proteins comprising two single chain variable fragments (scFvs) joined by a linker. The structure of scFvs are well characterized in the art, as is the structure of BiTE@ antibody constructs which incorporate scFvs. The specification need not explicitly describe each and every nuance of the bispecific antibody construct of the formulation when, as in this case, a person of ordinary skill in the art would have understood the inventor to have been in possession of the claimed invention at the time of filing. In re Alton, 76 F.3d 1168, 1175 (Fed. Cir. 1996). See also Falko-Gunter Falkner v. Inglis, 448 F.3d 1357, 1369 (Fed. Cir. 2006) (noting that a requirement for patentees to recite known structures would "neither enforce the quid pro quo between the patentee and the public. . . nor would it be necessary to demonstrate to a person of ordinary skill in the art that the patentee was in possession of the claimed invention").
B. The specification describes a representative number of species to satisfy
Section 112(a).
At page 8 of the Action, the Office stated "The specification does not describe a representative number of species falling with the scope of the genus or structural features common to the members of the genus so the one of skill in the art can visualize or recognize the member of the genus of the actual claimed bispecific antibody construct encompassed by the claimed pharmaceutical formulation." Applicant disagrees. What constitutes a "representative number" is an inverse function of the skill and knowledge in the art. Satisfactory disclosure of a "representative number" depends on whether one of skill in the art would recognize that the applicant was in possession of the necessary common attributes or features of the elements possessed by the members of the genus in view of the species disclosed. Here, the disclosure provides sufficient information to satisfy Section 112(a) in this respect.
First, as explained above, structural features uniting the genus of bispecific antibody constructs of the instantly claimed formulation are explicitly recited in the claims - fusion proteins comprising two scFvs joined by a linker.
Second, the application discloses a representative number of species that demonstrate possession of the claimed "genus." In this regard, the specification describes numerous examples of bispecific antibody constructs with the claimed fusion protein structure, providing CDR sequences, VH and VL sequences, and/or full length construct sequences for each species. See Specification, paragraphs [0037]-[0056]. Further, the instant examples evaluate formulations comprising the claimed components with eight different bispecific antibody constructs: BiTE@-1 (PSMAxCD3), BiTE@-2 (MSLNxCD3), BiTE@-3 (CD19xCD3), BiTE@-4 (CD33xCD3), BiTE@-5 (DLL3xCD3), BiTE@-6 (FLT3xCD3), BiTE@-7 (BCMAxCD3), and BiTE@-8 (CLDN18.2xCD3). See, e.g., Specification, paragraph [0091]. These examples demonstrate enhanced stability in formulations comprising methionine at -104C to -404C for each of the bispecific antibody constructs. Specification, paragraph [0098]. The consistent reduction in aggregation observed across all eight bispecific antibody constructs, despite their different binding specificities, demonstrates that the stabilizing effect of methionine in frozen formulations is a property common to the bispecific antibodies of the instant claims as a structural class. The description in the application and examples provide a sufficient number of representative species to demonstrate possession of the claim-recited "genus." See, e.g., M.P.E.P. § 2163.05, citing In re Rasmussen, 650 F.2d 1212, 1214, 211 USPQ 323, 326-27 (CCPA 1981) (disclosure of a single method of adheringly applying one layer to another was sufficient to support a generic claim to "adheringly applying" because one skilled in the art reading the specification would understand that it is unimportant how the layers are adhered, so long as they are adhered). A person of ordinary skill in the art reading the specification would understand that the methionine-mediated stabilization effect operates independently of the specific antibody structure - the common feature is the bispecific antibody construct format, not the particular CDR sequences or antigen targets.
For at least the aforementioned reasons, the Office's reliance on "antibody diversity" articles is misplaced. The Office cited various articles, such as Piche-Nichols et al. (MABS 10(1): 81-94, 2018), to allegedly establish that antibody sequences are highly variable and sensitive to change. Action, pages 8-9. As explained above, however, the formulation is not dependent on bispecific antibodies having any particular binding affinity or specificity. Notably, examples demonstrate the surprising technical advantage of the instant formulation is not attributable to one particular bispecific antibody construct over another, but rather was achieved using all tested bispecific antibody constructs, regardless of binding target or CDR sequences. The Office's reliance on Amgen Inc. v. Sanofi, AbbVie Deutschland GmbH v. Janssen Biotech, and related cases is also misplaced. The decisions cited by the Office are distinguishable because they involved claims to new antibodies themselves, not claims to formulations comprising antibodies (much less a formulation demonstrated to provide a technical effect to a variety of antibody constructs having different amino acid sequences).
At page 9 of the Action, the Office stated "given the lack of guidance as to the binding specificity of the bispecific antibody in the formulation, it is unpredictable which cancer can be treated with the claimed formulation." The Office's assertions in this regard are irrelevant at least insofar as the claims under examination are not directed to methods of treating cancer.
The specification sufficiently describes the claimed subject matter so as to satisfy the written description requirement of Section 112(a). The instant claims define the common structural features of the "genus" of bispecific antibodies. Further, the specification adequately describes the formulation through working examples demonstrating the protective effect across eight structurally diverse bispecific antibodies, which is sufficient to convey possession of the claimed formulation to a person of ordinary skill in the art. Thus, the written description rejection should be withdrawn.
In response to the argument that the claims are drawn to formulation, not antibody per se, the specification discloses just one formulation.
Example 1
[0090] The following Example demonstrates the stability of the bispecific antibody construct formulation of the disclosure after storage at −10° C. to −40° C. (e.g., −15° C.) at four weeks.
[0091] Compositions comprising 10 mM glutamate, 9% sucrose, 0.01% PS80, 50 mM methionine, pH 4.2, were prepared, each comprising one of the following bispecific antibody constructs: BiTE®-1 (PSMA×CD3), BiTE®-2 (MSLN×CD3), BiTE®-3 (CD19×CD3), BiTE®-4 (CD33×CD3), BiTE®-5 (DLL3×CD3), BiTE®-6 (FLT3×CD3), BiTE®-7 (BCMA×CD3), and BiTE®-8 (CLDN18.2×CD3). The final protein concentration for each of BiTE®-1, BiTE®-2, BiTE®-3, BiTE®-4, BiTE®-6, BiTE®-7, and BiTE®-8 in their respective compositions was 1.5 mg/mL. The final protein concentration for BiTE®-5 was 3.75 mg/mL.
[0092] Protein samples were staged at −20° C. for 24 hours to ensure complete freezing. The samples were then stored at −15° C. for four weeks.
Example 2
[0099] Sample Preparation: An appropriate volume of 10 mM glutamate, 9% sucrose, 0.01% PS80, 200 mM methionine (pH 4.2) stock solution was added to 5 mg/mL BiTE®-5 (DLL3×CD3) (SEQ ID NO: 77) sample to achieve a final formulation of 10 mM glutamate, 9% sucrose, 0.01% PS80, pH 4.2 at varying methionine concentrations. The final protein concentration for BiTE®-5 was 2.5 mg/mL. All protein samples were staged at −20° C. for 24 hours to ensure complete freezing. The samples were then stored at −15° C. for 4 weeks. The t0 and stressed samples were evaluated for HMW content by SE-UHPLC.
However, one species of formulation is not representative of the genus of formulation comprising a combination of any (a) bispecific antibody construct which is a fusion protein comprising any single chain variable fragments (scFvs) joined by any linker, (b) any saccharide, (c) any surfactant, (d) any buffer, and (e) about 10 mM to about 200 mM methionine.
Regarding the number of bispecific antibody construct which is a fusion protein comprising any single chain variable fragments (scFvs) joined by any linker, the specification discloses just eight different bispecific antibody constructs: BiTE@-1 (PSMAxCD3), BiTE@-2 (MSLNxCD3), BiTE@-3 (CD19xCD3), BiTE@-4 (CD33xCD3), BiTE@-5 (DLL3xCD3), BiTE@-6 (FLT3xCD3), BiTE@-7 (BCMAxCD3), and BiTE@-8 (CLDN18.2xCD3).
However, the specification does not describe i. Complete structure, e.g., heavy and light chains variable domains, ii. Partial structure, e.g., six CDRs and functional features share by members of the genus of bispecific antibodies that correlated with binding to which antigen encompass by the claimed pharmaceutical formulation for treating any and all cancer (claim 28 in the event of rejoinder).
At the time the invention was made, it was known in the art that antibodies have a large repertoire of distinct structures and that a huge variety of antibodies can be made to bind to a single epitope.
For example, Lloyd et al. taught that hundreds of functional antibody fragments can be isolated from an antibody library that bind to the same antigen wherein these antibodies have distinct heavy and light chain sequences (Lloyd et al. of record, Protein Engineering, Design & Selection 2009, 22:159-168; see, e.g., Discussion).
Similarly, Edwards et al., (of record, J Mol Biol. 2003 Nov 14;334(1): 103-118; PTO 892), found that over 1000 antibodies, all different in amino acid sequence, were generated to a single protein; 568 different amino acid sequences identified for the V(H) CDR3 domains of these antibodies (Abstract).
Further, even minor changes in the amino acid sequence of a heavy or light variable region, particularly the CDRs, may dramatically affect antigen-binding function and IgG binding to the neonatal Fc receptor (FcRn) and pharmacokinetics.
For example, Piche-Nicholas et al (of record, MABS 10(1): 81-94, 2018; PTO 892) teaches altering complementary-determining region (CDRs) by 1-5 mutations significantly alter binding affinity to FcRn in vitro, see entire document, abstract, p. 95, right col, in particular. Engineering CDRs by modify local charge and thus maintain affinity to FcRn at 400 nM or weaker in vitro while retaining antigen binding may have far-reaching implications in the half-life optimization efforts of IgG therapeutics with respect to in vivo pharmacokinetics, see p. 90, in particular. Given that hundreds of unique antibody structures may bind a single antigen, the structure of an antibody cannot be predicted from the structure of the antigen (as held in Amgen), and a single species, or small group of species, cannot define a structure-function relationship so as to be representative of all the antibodies that bind to that antigen (as held in Abbvie).
Further, given the lack of guidance as to the binding specificity of the bispecific antibody in the formulation, it is unpredictable which cancer can be treated with the claimed formulation. Thus a skilled artisan would reasonably conclude that applicant was not in possession of the full breadth of the claims at the time the instant application was filed.
For these reasons, the rejection is maintained.
Claims 1-6, 8-12, 18, 20, 22, 26 and 27 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for a formulation comprising (a) a bispecific antibody comprising the amino acid sequence of SEQ ID NO: 77 (DLL3 x CD3 BiTE®-5), (b) a 10 mM glutamate, 9% sucrose, 0.01% polysorbate 80 (PS80), 200 mM methionine and a pH of 4.2 for treating DLL3 expressing cancer, does not reasonably provide enablement for a pharmaceutical formulation as set forth in claims 1-6, 8-14, 18, 20-22, 24, 26 and 27 for treating any cancer. The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the invention commensurate in scope with these claims.
Factors to be considered in determining whether undue experimentation is required to practice the claimed invention are summarized In re Wands (858 F2d 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988)). The factors most relevant to this rejection include the nature of the invention, the state of the prior art, the relative skill of those in the art, the amount of direction or guidance disclosed in the specification, the presence or absence of working examples, the predictability or unpredictability of the art, the breadth of the claims, and the quantity of experimentation which would be required in order to practice the invention as claimed.
Enablement is not commensurate in scope with claims as how to make and use the claimed pharmaceutical formulation for treating any and all cancer without guidance as to the binding specificity of the bispecific scFvs antibody.
Claim 1 encompasses any pharmaceutical formulation comprising (a) any bispecific antibody construct which is a fusion protein comprising any two single chain variable fragments (scFvs) joined by any linker, (b) any saccharide, (c) any surfactant, (d) any buffer, and (e) about 10 mM to about 200 mM methionine; wherein the pH of the formulation is from about 4 to about 7.
Claim 2 encompasses the formulation of claim 1, wherein the pH of the formulation is about 4.2.
Claim 3 encompasses the formulation of claim 1, wherein the saccharide is a monosaccharide or a disaccharide.
Claim 4 encompasses the formulation of claim 1, wherein the saccharide is glucose, galactose, fructose, xylose, sucrose (elected species), lactose, maltose, trehalose, sorbitol, mannitol, or xylitol.
Claim 5 encompasses the formulation of claim 4, wherein the saccharide is sucrose.
Claim 6 encompasses the formulation of claim 1, wherein the surfactant is any nonionic surfactant.
Claim 8 encompasses the formulation of claim 6, wherein the surfactant is polysorbate 20, polysorbate 40, polysorbate 60, or polysorbate 80 (elected species).
Claim 9 encompasses the formulation of claim 6, wherein the surf actant is polysorbate 80.
Claim 10 encompasses the formulation of claim 1, wherein the buffer is an acetate buffer, a glutamate buffer (elected species), a citrate buffer, a lactic buffer, a succinate buffer, a tartrate buffer, a fumarate buffer, a maleate buffer, a histidine buffer, or a phosphate buffer.
Claim 11 encompasses the formulation of claim 10, wherein the buffer is a glutamate buffer.
Claim 12 encompasses the formulation of claim 1, wherein the formulation comprises the bispecific antibody construct at a concentration of from about 1 mg/ml to about 20 mg/ml.
Claim 18 encompasses the formulation of claim 1, which comprises at least about 10% less high molecule weight (HMW) species compared to a matched formulation not comprising methionine when stored for four weeks at -15˚C.
Claim 20 encompasses a frozen pharmaceutical formulation comprising about 1 mg/ml to about 20 mg/mL bispecific antibody construct which is a fusion protein comprising any two single chain variable fragments (scFvs) joined by any linker, any sucrose, glutamic acid, polysorbate 80, and about 10 mM to about 200 mM methionine, wherein the pH of the formulation is from about 4 to about 7.
Claim 22 encompasses the e formulation of claim 21, further comprising a third domain comprising, in an amino to carboxyl order, hinge-CH2 domain-CH3 domain-linker- hinge-CH2 domain-CH3 domain.
Claim 26 encompasses the formulation of claim 21, wherein the bispecific antibody construct comprises the amino acid sequence set forth in SEQ ID NO: 20, SEQ ID NO: 21, SEQ ID NO: 22, SEQ ID NO: 23, SEQ ID NO: 33, SEQ ID NO: 43, SEQ ID NO: 44, SEQ ID NO: 45, SEQ ID NO: 55, SEQ ID NO: 65, SEQ ID NO: 66, SEQ ID NO: 76, SEQ ID NO: 77 (elected species), SEQ ID NO: 87, SEQ ID NO: 97, SEQ ID NO: 98, SEQ ID NO: 99, SEQ ID NO: 109, SEQ ID NO: 110, SEQ ID NO: 111, SEQ ID NO: 121, SEQ ID NO: 122, SEQ ID NO: 131, SEQ ID NO: 141, SEQ ID NO: 142, SEQ ID NO: 146, SEQ ID NO: 147, SEQ ID NO: 156, SEQ ID NO: 165, SEQ ID NO: 174, SEQ ID NO: 183, SEQ ID NO: 184, SEQ ID NO: 185, SEQ ID NO: 186, SEQ ID NO: 187, or SEQ ID NO: 188.
Claim 27 encompasses the formulation of claim 1, wherein the bispecific antibody construct comprises the amino acid sequence set forth in SEQ ID NO: 77.
The specification discloses:
[0091] Compositions comprising 10 mM glutamate, 9% sucrose, 0.01% PS80, 50 mM methionine, pH 4.2, were prepared, each comprising one of the following bispecific antibody constructs: BiTE®-1 (PSMA×CD3), BiTE®-2 (MSLN×CD3), BiTE®-3 (CD19×CD3), BiTE®-4 (CD33×CD3), BiTE®-5 (DLL3×CD3), BiTE®-6 (FLT3×CD3), BiTE®-7 (BCMA×CD3), and BiTE®-8 (CLDN18.2×CD3). The final protein concentration for each of BiTE®-1, BiTE®-2, BiTE®-3, BiTE®-4, BiTE®-6, BiTE®-7, and BiTE®-8 in their respective compositions was 1.5 mg/ml. The final protein concentration for BiTE®-5 was 3.75 mg/ml.
[0092] Protein samples were staged at −20° C. for 24 hours to ensure complete freezing. The samples were then stored at −15° C. for four weeks. In parallel, additional samples were stored at 4° C. and 40° C. to characterize the liquid stability of the formulation with methionine. Some samples were lyophilized to assess the impact of methionine on the lyophilized cake. Lyophilized samples were stored at 4° C. and 40° C.
[0093] The time 0 and stressed samples were evaluated for HMW content by Size Exclusion Ultra High-Performance Liquid Chromatography (SE-UHPLC). SE-UHPLC separates proteins based on differences in their hydrodynamic volumes. Molecules with higher hydrodynamic volumes elute earlier than molecules with smaller volumes. The samples were loaded onto an SE-UHPLC column (BEH200, 4.6×300 mm (Waters Corporation, 186005226)), separated isocratically, and the eluent monitored by UV absorbance. Purity was determined by calculating the percentage of each separated component as compared to the total integrated area. SE-UHPLC settings were as follows: Flow rate: 0.4 mL/min; Run time: 12 min; UV detection: 280 nm; Column temperature: Ambient; Target protein load: 6 μg; Protein compatible flow cell: 5 mm.
[0094] As shown in FIG. 1, the addition of methionine reduced frozen state aggregation levels for various bispecific antibody constructs tested after one month storage at −15° C., which represents accelerated test conditions for −30° C. storage. In a representative experiment, addition of methionine reduced the appearance of HMW species by about 25% to about 85%: BiTE®-1 HMW species reduced about 30%, BiTE®-2 HMW species reduced about 27%, BiTE®-3 HMW species reduced about 36%, BiTE®-4 HMW species reduced about 75%, BiTE®-5 HMW species reduced about 80%, BiTE®-7 HMW species reduced about 76%, and BiTE®-8 HMW species reduced about 60%.
[0095] Methionine's inhibitory effect on aggregation on frozen compositions was surprising, at least in part, because methionine did not display a similar effect on liquid compositions. The impact of methionine on liquid stability was assessed after four weeks' storage at 4° C. and 40° C., and it was determined that the excipient did not impact the liquid stability of the bispecific antibody constructs tested. See FIG. 2 and FIG. 3. The percent HMW species detected in samples stored for four weeks at 4° C. was relatively unaffected by the presence of methionine in the formulation (compare the second and fourth bars in FIG. 2). Similar results were observed under accelerated storage conditions of four weeks at 40° C. (compare the second and fourth bars in FIG. 3).
[0096] In some circumstances, therapeutic protein compositions are lyophilized for storage or transport. The impact of methionine on lyophilized stability was assessed after storage for four weeks at 4° C. and 40° C. See FIGS. 4 and 5. The higher temperature represents an accelerated stability condition. It was determined that methionine did not impact the lyophilized stability of the bispecific antibody constructs tested (compare the second and fourth bars for each construct in FIGS. 4 and 5).
[0097] The addition of other amino acids and excipients to a formulation buffer comprising a BiTE molecule, 10 mM glutamate, 9% sucrose, 0.01% PS80 did not result in a significant decrease in frozen state aggregation levels after one-month storage at −20° C. (FIGS. 6A, 6B and 6C). All proteins were evaluated at 1 mg/ml. The amino acid concentration used in FIG. 6A was 10 mM and the excipient concentration used in FIGS. 6B and 6C was 50 mM.
[0098] The data provided in this Example demonstrate the stability of the formulation of the disclosure comprising methionine at −10° C. to −40° C. (e.g., −20° C. to −35° C., such as −30° C.) for a variety of bispecific antibody constructs. Interestingly, methionine did not significantly inhibit aggregation in liquid formulations or impact the stability of a lyophilized formulation.
Example 2
[0099] Sample Preparation: An appropriate volume of 10 mM glutamate, 9% sucrose, 0.01% PS80, 200 mM methionine (pH 4.2) stock solution was added to 5 mg/mL BiTE®-5 (DLL3×CD3) (SEQ ID NO: 77) sample to achieve a final formulation of 10 mM glutamate, 9% sucrose, 0.01% PS80, pH 4.2 at varying methionine concentrations. The final protein concentration for BiTE®-5 was 2.5 mg/ml. All protein samples were staged at −20° C. for 24 hours to ensure complete freezing. The samples were then stored at −15° C. for 4 weeks. The t0 and stressed samples were evaluated for HMW content by SE-UHPLC.
[0100] SE-UHPLC Analysis: Stability samples were analyzed using SE-UHPLC (Size Exclusion Ultra High-Performance Liquid Chromatography) to monitor aggregation in the frozen state. Size Exclusion Ultra High-Performance Liquid Chromatography (SE-UHPLC) separates proteins based on differences in their hydrodynamic volumes. Molecules with higher hydrodynamic volumes elute earlier than molecules with smaller volumes. The samples are loaded onto an SE-UHPLC column (BEH200, 4.6×300 mm, (Waters Corporation, 186005226)), separated isocratically and the eluent is monitored by UV absorbance. Purity is determined by calculating the percentage of each separated component as compared to the total integrated area. SE-UHPLC settings are as follows: Flow rate: 0.4 mL/min, Run time: 12 min, UV detection: 280 nm, Column temperature: Ambient, Target protein load: 6 μg, Protein compatible flow cell: 5 mm.
[0101] Results: A methionine to BiTE molar ratio of 105 and higher was observed to reduce frozen state aggregation of BiTE®-5 (FIG. 7). Ratios below 105 did not protect against frozen state aggregation to the extent observed using molar ratios of at least 105.
Other than a formulation comprising a bispecific antibody comprising the amino acid sequence of SEQ ID NO: 77 (DLL3 x CD3 BiTE®-5) as set forth in claim 26, (b) a 10 mM glutamate, 9% sucrose, 0.01% polysorbate 80 (PS80), 200 mM methionine and a pH of 4.2 that reduce frozen state aggregation of BiTE-5 bispecific antibody format, the specification does not teach i. Complete structure, e.g., heavy and light chains variable domains, ii. Partial structure, e.g., six CDRs and functional features share by members of the genus of bispecific antibodies that correlated with binding to which antigen encompass by the claimed pharmaceutical formulation for treating all cancers.
Even assuming the bispecific antibody comprising the amino acid sequence of SEQ ID NO: 77, the specification discloses just one bispecific antibody that binds specifically to DLL3 and CD3 is not representative of genus.
At the time the invention was made, it was known in the art that antibodies have a large repertoire of distinct structures and that a huge variety of antibodies can be made to bind to a single epitope.
For example, Lloyd et al. taught that hundreds of functional antibody fragments can be isolated from an antibody library that bind to the same antigen wherein these antibodies have distinct heavy and light chain sequences (Lloyd et al. Protein Engineering, Design & Selection 22:159-168, 2009; see, e.g., Discussion).
Similarly, Edwards et al., J Mol Biol. 334(1): 103-118, 2003, found that over 1000 antibodies, all different in amino acid sequence, were generated to a single protein; 568 different amino acid sequences identified for the V(H) CDR3 domains of these antibodies (Abstract).
Further, even minor changes in the amino acid sequence of a heavy or light variable region, particularly the CDRs, may dramatically affect antigen-binding function and IgG binding to the neonatal Fc receptor (FcRn) and pharmacokinetics.
For example, Piche-Nicholas et al MABS 10(1): 81-94, 2018; PTO 892) teaches altering complementary-determining region (CDRs) by 1-5 mutations significantly alter binding affinity to FcRn in vitro, see entire document, abstract, p. 95, right col, in particular. Engineering CDRs by modify local charge and thus maintain affinity to FcRn at 400 nM or weaker in vitro while retaining antigen binding may have far-reaching implications in the half-life optimization efforts of IgG therapeutics with respect to in vivo pharmacokinetics, see p. 90, in particular. Given that hundreds of unique antibody structures may bind a single antigen, the structure of an antibody cannot be predicted from the structure of the antigen, and a single species, or small group of species, cannot define a structure-function relationship so as to be representative of all the antibodies that bind to that antigen.
Further, given the lack of guidance as to the binding specificity of the bispecific antibody in the formulation (claims 1-6, 8-14, 18, 20-22, 24 and 27), it is unpredictable which cancer can be treated with the claimed formulation.
Even assuming the bispecific antibody comprises the amino acid sequence of SEQ ID NO: 77 (claim 26), there are no in vivo working examples. It is not clear that the claimed formulation can treat all cancers.
For treating cancer in human, Hay et al (Nature Biotechnology 32(1): 40-51, January 2014; PTO 892) teach oncology is a particularly challenging disease area in which to achieve phase 3 success. Current animal model (e.g., xenograft tumor models in mice) can be poor predictors of clinical outcomes in humans. Additionally, recent scientific reports show that certain types of cancer, which were previously thought of as one disease, may actually comprise several subtypes of disease with different etiologies, see page 49, right col..
As such, one skilled in the art would need to resort to undue experimentation in a complex and unpredictable field in order to determine how to perform the invention in a manner commensurate in scope with the claims.
Applicants’ arguments filed April 27, 2026 have been fully considered but are not found persuasive.
Applicants’ position is that The claims under examination, however, are not directed to a method of treating cancer. The claims are directed to formulations, i.e., a composition of matter, not methods of treatment.
The Office provided no reasoning as to why the specification does not enable the
formulation of the instant claims. The specification provides ample teaching with respect to saccharides, surfactants, buffers, etc. at paragraphs [0059]-[0067]. Use of methionine is disclosed at, e.g., paragraphs [0068]-[0073]. Bispecific antibody constructs having the structural features of the instant claims were known in the art prior to the effective filing date and are described in the specification at, e.g., paragraphs [0026]-[0058]. Methods of making pharmaceutical compositions are well known in the art, and exemplary methods are provided in the examples. The working examples demonstrate that the formulation can be made and used across a variety of bispecific antibody constructs without undue experimentation. Indeed, the application demonstrates consistent protective effect across eight different bispecific antibody constructs targeting eight different antigens (PSMA, MSLN, CD19, CD33, DLL3, FLT3, BCMA, CLDN18.2). The enablement rejection should be withdrawn.
In response, the enablement requirement refers to the requirement of 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph that the specification describe how to make and how to use the invention, not just how to make, see MPEP § 2164.
In response to the argument that the claims are drawn to formulation, not method of treating cancer, the specification discloses just one formulation.
Example 1
[0090] The following Example demonstrates the stability of the bispecific antibody construct formulation of the disclosure after storage at −10° C. to −40° C. (e.g., −15° C.) at four weeks.
[0091] Compositions comprising 10 mM glutamate, 9% sucrose, 0.01% PS80, 50 mM methionine, pH 4.2, were prepared, each comprising one of the following bispecific antibody constructs: BiTE®-1 (PSMA×CD3), BiTE®-2 (MSLN×CD3), BiTE®-3 (CD19×CD3), BiTE®-4 (CD33×CD3), BiTE®-5 (DLL3×CD3), BiTE®-6 (FLT3×CD3), BiTE®-7 (BCMA×CD3), and BiTE®-8 (CLDN18.2×CD3). The final protein concentration for each of BiTE®-1, BiTE®-2, BiTE®-3, BiTE®-4, BiTE®-6, BiTE®-7, and BiTE®-8 in their respective compositions was 1.5 mg/mL. The final protein concentration for BiTE®-5 was 3.75 mg/mL.
[0092] Protein samples were staged at −20° C. for 24 hours to ensure complete freezing. The samples were then stored at −15° C. for four weeks.
Example 2
[0099] Sample Preparation: An appropriate volume of 10 mM glutamate, 9% sucrose, 0.01% PS80, 200 mM methionine (pH 4.2) stock solution was added to 5 mg/mL BiTE®-5 (DLL3×CD3) (SEQ ID NO: 77) sample to achieve a final formulation of 10 mM glutamate, 9% sucrose, 0.01% PS80, pH 4.2 at varying methionine concentrations. The final protein concentration for BiTE®-5 was 2.5 mg/mL. All protein samples were staged at −20° C. for 24 hours to ensure complete freezing. The samples were then stored at −15° C. for 4 weeks. The t0 and stressed samples were evaluated for HMW content by SE-UHPLC.
However, the specification does not teach formulation comprising which combination of all possible (a) bispecific antibody construct which is a fusion protein comprising any single chain variable fragments (scFvs) joined by any linker, (b) any saccharide, (c) any surfactant, (d) any buffer, and (e) about 10 mM to about 200 mM methionine is effective for reducing aggregation at any and all temperature to enable one of skilled in the art to make and use without undue experimentation.
Regarding the number of bispecific antibody construct which is a fusion protein comprising any single chain variable fragments (scFvs) joined by any linker in the claimed formulation, the specification discloses just eight different bispecific antibody constructs: BiTE@-1 (PSMAxCD3), BiTE@-2 (MSLNxCD3), BiTE@-3 (CD19xCD3), BiTE@-4 (CD33xCD3), BiTE@-5 (DLL3xCD3), BiTE@-6 (FLT3xCD3), BiTE@-7 (BCMAxCD3), and BiTE@-8 (CLDN18.2xCD3).
However, the specification does not teach i. Complete structure, e.g., heavy and light chains variable domains, ii. Partial structure, e.g., six CDRs and functional features share by members of the genus of bispecific antibodies that correlated with binding for treating any and all cancer (claim 28 in the event of rejoinder and compact prosecution).
There are no in vivo working examples in the specification which show that these formulation can treat any and all possible cancer.
At the time the invention was made, it was known in the art that antibodies have a large repertoire of distinct structures and that a huge variety of antibodies can be made to bind to a single epitope.
For example, Lloyd et al. taught that hundreds of functional antibody fragments can be isolated from an antibody library that bind to the same antigen wherein these antibodies have distinct heavy and light chain sequences (Lloyd et al. of record, Protein Engineering, Design & Selection 2009, 22:159-168; see, e.g., Discussion).
Similarly, Edwards et al., (of record, J Mol Biol. 2003 Nov 14;334(1): 103-118; PTO 892), found that over 1000 antibodies, all different in amino acid sequence, were generated to a single protein; 568 different amino acid sequences identified for the V(H) CDR3 domains of these antibodies (Abstract).
Further, even minor changes in the amino acid sequence of a heavy or light variable region, particularly the CDRs, may dramatically affect antigen-binding function and IgG binding to the neonatal Fc receptor (FcRn) and pharmacokinetics.
For example, Piche-Nicholas et al (of record, MABS 10(1): 81-94, 2018; PTO 892) teaches altering complementary-determining region (CDRs) by 1-5 mutations significantly alter binding affinity to FcRn in vitro, see entire document, abstract, p. 95, right col, in particular. Engineering CDRs by modify local charge and thus maintain affinity to FcRn at 400 nM or weaker in vitro while retaining antigen binding may have far-reaching implications in the half-life optimization efforts of IgG therapeutics with respect to in vivo pharmacokinetics, see p. 90, in particular. Given that hundreds of unique antibody structures may bind a single antigen, the structure of an antibody cannot be predicted from the structure of the antigen (as held in Amgen), and a single species, or small group of species, cannot define a structure-function relationship so as to be representative of all the antibodies that bind to that antigen (as held in Abbvie).
Further, given the lack of guidance as to the binding specificity of the bispecific antibody in the formulation, it is unpredictable which cancer can be treated with the claimed formulation. Thus a skilled artisan would reasonably conclude that applicant was not in possession of the full breadth of the claims at the time the instant application was filed.
For these reasons, the rejection is maintained.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) 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.
Claims 1-6, 8-10, 12, 18, 22, 26 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Raum et al (WO2017021349, published February 9, 2017; PTO 892) in view of WO2019020745 publication (published Jan 31, 2019; PTO 1449) and/or WO2007109221 (published September 27, 2007; PTO 1449) as evidenced by WO9316185 publication (newly cited published August 19, 1993; PTO 892).
Claim 1 encompasses a pharmaceutical formulation comprising (a) a bispecific antibody construct which is a fusion protein comprising two single chain variable fragments (scFvs) joined by a linker, (b) a saccharide, (c) a surfactant, (d) a buffer, and (e) about 10 mM to about 200 mM methionine; wherein the pH of the formulation is from about 4 to about 7.
Raum teaches a formulation (p. 64, p. 72, p. 73, p. 78) comprising a DLL3xCD3 bispecific antibody construct comprising a first binding domain which binds to human DLL3 on the surface of a target cell and a second binding domain which binds to human CD3 on the surface of a T cell (see p. 20, p. 24, p. 52), surfactant (p. 72), a saccharide, e.g., sucrose (see p. 74), a surfactant, e.g., polysorbate 20 or Tween 80 (see p. 75, line 1-5), a buffer, e.g., phosphate buffer or PBS (see p. 65, p. 73, line 3) or acetate buffer (see p. 73), methionine (antioxidant, see p. 73, p. 78) and a pH of about 5.0 to 5.5, see p. 73, last line, in particular.
Regarding claim 2, the reference pH 4.0 to 5.5 includes the claimed pH of about 4.2, see p. 73, last line.
Regarding claim 3, Raum teaches that the saccharides include monosaccharide or disaccharide, preferably sucrose, see p. 74, lines 11-12.
Regarding claims 4-5, Raum teaches that the saccharides are glucose, trehalose, sucrose, sorbitol, or xylitol, see p. 74, lines 12-14.
Regarding claims 6, 8-9, Raum teaches that the surfactant is nonionic surfactant, e.g., polysorbates, such as polysorbate 20, polysorbate, triton, Tween 80 (aka polysorbate 80), see p. 75, lines 1-7, polysorbate 80, see p. 79.
Regarding claim 10, Raum teaches that examples of buffers are borate, bicarbonate, Tris-HCI, citrates, phosphates or other organic acids, succinate, phosphate, histidine, acetate, see p. 73.
Regarding claim 12, Raum teaches that the formulation wherein the bispecific antibody comprises 2.5 mg/ml, which is within the claimed range of about 1 mg/ml to about 20 mg/ml, see para bridging p. 65 to 66.
Regarding claim 22, Raum teaches that the bispecific antibody further comprises a third domain comprising, in an N- to C-terminal order, a hinge-CH2-CH3-linker-hinge-CH2-CH3, p. 41, second paragraph, in particular.
Regarding claim 24, Raum teaches that the bispecific antibody is a single chain antibody construct, e.g., (scFv)2, see reference claim 4, or single chain antibody (scFv, see p. 56), in particular.
Regarding claim 26, Raum teaches that the DLL3xCD3 bispecific antibody construct comprising the amino acid sequence of SEQ ID NO: 520, which is 100% identical to the claimed SEQ ID NO: 77, see p. 201, sequence alignment below:
Query Match 100.0%; Score 5312; Length 982;
Best Local Similarity 100.0%;
Matches 982; Conservative 0; Mismatches 0; Indels 0; Gaps 0;
Qy 1 QVQLQESGPGLVKPSETLSLTCTVSGGSISSYYWSWIRQPPGKCLEWIGYVYYSGTTNYN 60
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 1 QVQLQESGPGLVKPSETLSLTCTVSGGSISSYYWSWIRQPPGKCLEWIGYVYYSGTTNYN 60
Qy 61 PSLKSRVTISVDTSKNQFSLKLSSVTAADTAVYYCASIAVTGFYFDYWGQGTLVTVSSGG 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 61 PSLKSRVTISVDTSKNQFSLKLSSVTAADTAVYYCASIAVTGFYFDYWGQGTLVTVSSGG 120
Qy 121 GGSGGGGSGGGGSEIVLTQSPGTLSLSPGERVTLSCRASQRVNNNYLAWYQQRPGQAPRL 180
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 121 GGSGGGGSGGGGSEIVLTQSPGTLSLSPGERVTLSCRASQRVNNNYLAWYQQRPGQAPRL 180
Qy 181 LIYGASSRATGIPDRFSGSGSGTDFTLTISRLEPEDFAVYYCQQYDRSPLTFGCGTKLEI 240
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 181 LIYGASSRATGIPDRFSGSGSGTDFTLTISRLEPEDFAVYYCQQYDRSPLTFGCGTKLEI 240
Qy 241 KSGGGGSEVQLVESGGGLVQPGGSLKLSCAASGFTFNKYAMNWVRQAPGKGLEWVARIRS 300
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 241 KSGGGGSEVQLVESGGGLVQPGGSLKLSCAASGFTFNKYAMNWVRQAPGKGLEWVARIRS 300
Qy 301 KYNNYATYYADSVKDRFTISRDDSKNTAYLQMNNLKTEDTAVYYCVRHGNFGNSYISYWA 360
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 301 KYNNYATYYADSVKDRFTISRDDSKNTAYLQMNNLKTEDTAVYYCVRHGNFGNSYISYWA 360
Qy 361 YWGQGTLVTVSSGGGGSGGGGSGGGGSQTVVTQEPSLTVSPGGTVTLTCGSSTGAVTSGN 420
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 361 YWGQGTLVTVSSGGGGSGGGGSGGGGSQTVVTQEPSLTVSPGGTVTLTCGSSTGAVTSGN 420
Qy 421 YPNWVQQKPGQAPRGLIGGTKFLAPGTPARFSGSLLGGKAALTLSGVQPEDEAEYYCVLW 480
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 421 YPNWVQQKPGQAPRGLIGGTKFLAPGTPARFSGSLLGGKAALTLSGVQPEDEAEYYCVLW 480
Qy 481 YSNRWVFGGGTKLTVLGGGGDKTHTCPPCPAPELLGGPSVFLFPPKPKDTLMISRTPEVT 540
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 481 YSNRWVFGGGTKLTVLGGGGDKTHTCPPCPAPELLGGPSVFLFPPKPKDTLMISRTPEVT 540
Qy 541 CVVVDVSHEDPEVKFNWYVDGVEVHNAKTKPCEEQYGSTYRCVSVLTVLHQDWLNGKEYK 600
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 541 CVVVDVSHEDPEVKFNWYVDGVEVHNAKTKPCEEQYGSTYRCVSVLTVLHQDWLNGKEYK 600
Qy 601 CKVSNKALPAPIEKTISKAKGQPREPQVYTLPPSREEMTKNQVSLTCLVKGFYPSDIAVE 660
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 601 CKVSNKALPAPIEKTISKAKGQPREPQVYTLPPSREEMTKNQVSLTCLVKGFYPSDIAVE 660
Qy 661 WESNGQPENNYKTTPPVLDSDGSFFLYSKLTVDKSRWQQGNVFSCSVMHEALHNHYTQKS 720
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 661 WESNGQPENNYKTTPPVLDSDGSFFLYSKLTVDKSRWQQGNVFSCSVMHEALHNHYTQKS 720
Qy 721 LSLSPGGGGSGGGGSGGGGSGGGGSGGGGSGGGGSDKTHTCPPCPAPELLGGPSVFLFPP 780
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 721 LSLSPGGGGSGGGGSGGGGSGGGGSGGGGSGGGGSDKTHTCPPCPAPELLGGPSVFLFPP 780
Qy 781 KPKDTLMISRTPEVTCVVVDVSHEDPEVKFNWYVDGVEVHNAKTKPCEEQYGSTYRCVSV 840
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 781 KPKDTLMISRTPEVTCVVVDVSHEDPEVKFNWYVDGVEVHNAKTKPCEEQYGSTYRCVSV 840
Qy 841 LTVLHQDWLNGKEYKCKVSNKALPAPIEKTISKAKGQPREPQVYTLPPSREEMTKNQVSL 900
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 841 LTVLHQDWLNGKEYKCKVSNKALPAPIEKTISKAKGQPREPQVYTLPPSREEMTKNQVSL 900
Qy 901 TCLVKGFYPSDIAVEWESNGQPENNYKTTPPVLDSDGSFFLYSKLTVDKSRWQQGNVFSC 960
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 901 TCLVKGFYPSDIAVEWESNGQPENNYKTTPPVLDSDGSFFLYSKLTVDKSRWQQGNVFSC 960
Qy 961 SVMHEALHNHYTQKSLSLSPGK 982
||||||||||||||||||||||
Db 961 SVMHEALHNHYTQKSLSLSPGK 982
Raum does not teach the molar ratio of methionine to antibody construct is about 10x to about 5000x as per claim 1 or about 50x to about 5000x as per claim 13 or wherein the formulation comprises about 10 mM to about 200 mM methionine as per claim 14.
However, the WO2019020745 publication teaches pharmaceutical formulation comprising 1 to 200 mg/ml of a bispecific antibody which binds to carcinoembryonic antigen (CEA) and CD3 (CEA CD3 bispecific antibody, p. 5, lines 23-27), 1 to 100 mM of a buffering, 0.001 to 1% of a surfactant, 1 to 500 mM of at least one stabilizer, and a pH in the range from 4.0 to 7.0, see entire document, abstract, p. 1, in particular. The WO2019020745 publication teaches that the bispecific antibody wherein the first and second binding moieties are fused to each other via a peptide linker, see p. 14, p. 15, lines 19-20, in particular. The WO2019020745 publication teaches that linear antibodies, single-chain antibody molecules, e.g., scFv, see p. 8, lines 15 to 20, WO93/16185 cited therein. Evidentiary reference WO9316185 publication teaches bispecific scFv-chain Fv fusion having two distinct binding sites on the same polypeptide chain, can be used to target via the two antigens for which the molecule is specific, e.g., VH1-linker-VL1-Linker-VH2-linker-VL2, see p. 6, lines 1-2, p. 11, line 10-16, in particular. Bispecific single-chain antibody may have specificity for both the c-erbB-2 and CD3 antigens, see p. 11, line 14-16.
The WO2019020745 publication teaches that Methionine is preferably used at a concentration of about 5 to about 25 mM, most preferably about 10 mM, see p. 22, lines 23-24. The reference about 5 to about 25 mM overlaps the clamed about 10 mM to about 200 mM methionine as in claim 1.
Preferred pharmaceutically acceptable buffers comprise but are not limited to histidine buffers, citrate buffers, succinate buffers, acetate buffers and phosphate buffers as per claim 10, see p. 1-2.
Examples of non-ionic surfactant include polysorbate 20 (polyoxyethylene sorbitan monolaureate, sold under the trademark Tween 20™) and polysorbate 80 (polyoxyethylene sorbitan monooleate, sold under the trademark Tween 80™) as per claims 6, 8-9, see p. 2, reference claims 11, 13, in particular.
Saccharides for use in the present invention are sucrose as per claim 4, see p. 3, line 28. Saccharides can be present in the formulation in an amount of about 100 to about 500 mM, preferably in an amount of about 200 to about 300 mM, more preferably in an amount of about 220 to about 250 mM, particularly an amount of about 230 mM or about 240 mM, most preferably in an amount of about 230 mM.
Antioxidants, e.g., methionine can be used in an amount of about 0.01 to about 100 mM, preferably in an amount of about 5 to about 50 mM and more preferably in an amount of about 5 to about 25 mM. Methionine is preferably used at a concentration of about 5 to about 25 mM, most preferably about 10 mM, which overlaps the claimed range of about 10 mM to about 200 mM methionine as per claim 14, (see p. 4, line 10-12).
In one embodiment, the formulation comprises: 5 to 50 mg/ml of a CEA CD3 bispecific antibody, 15 to 30 mM L-histidine, 0.02 to 0.05% (w/v) polysorbate 20; 120 to 300 mM sucrose, 5 to 25 mM methionine and a pH of 5.5 + 0.5, see p. 23. The WO2019020745 publication teaches that the maximum antibody stability and antibody formulations free from particles, L-histidine/HCI buffer is the most favorable buffer, sucrose in combination with methionine are the most favorable stabilizers, and polysorbate 20 is the most favorable surfactant, see p. 32.
Likewise, the WO2007109221 publication teaches formulations exhibiting reduced aggregation by adding methionine to the formulation to a concentration of about 0.5 mM to about 145 mM, which overlaps the claimed range of about 10 mM to about 200 mM methionine as per claim 14, see entire document, Summary of invention, p. 2, in particular. The WO2007109221 publication teaches that adding methionine to a protein formulation to a concentration of about 0.5 mM to about 145 mM increases the shelf life of the protein formulation compared with a formulation lacking methionine. Examples of proteins include bispecific antibodies, see p. 2-3, p. 14-15. The WO2007109221 publication teaches that the protein of the formulation is an antibody, e.g., a bispecific antibody (see p. 20) having at least two antigen-binding site that specifically bind different antigens, see p. 21, in particular. The protein concentrations in the formulations are generally between 0.5 mg/ml and about 300 mg/ml, between about 0.5 mg/ml and about 25 mg/ml, see p. 24. The pH of a formulation is generally about pH 5.5 to about 6.5, see p. 24, in particular. The WO2007109221 publication teaches the formulation samples were stored at -800C, 25°C, and 4O0C and were evaluated for % HMW over a 4-week period by SEC-HPLC, see Example 4. Addition of methionine to formulations that were subjected to shaking resulted in a decrease in the % HMW levels to 1.0 and 2.2% compared to a matched formulation not comprising methionine when stored for four weeks (1 month), see Table 1.
In view of the combined teachings of the references, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filling date of the claimed invention to combine Raum’s formation comprising a bispecific antibody comprising the amino acid sequence of SEQ ID NO: 77, a saccharide, a surfactant, a buffer, and the WO2019020745 publication’s methionine at a concentration of in an amount of about 0.01 to about 100 mM, or about 5 to about 50 mM or about 5 to about 25 mM in 5 to 50 mg/ml or the WO2007109221 publication’s methionine at a concentration of about 0.5 mM to about 145 mM to a protein formulation in order to reduce aggregation in the formulation and increases the shelf life of the formulation. Claim 14 is included as WO2019020745 publication’s about 0.01 to about 100 mM overlaps the claimed range of about 10 mM to about 200 mM. Likewise, the WO2007109221 publication’s methionine concentration of about 0.5 mM to about 145 mM overlaps the claimed range of about 10 mM to about 200 mM. Claim 18 is included as it is within the purview of ordinary skilled in the art to store the formulation at -15 °C as opposed to -80°C for four weeks prior to evaluated for % HMW over a 4-week period by SEC-HPLC as taught by the WO2007109221 publication.
One of ordinary skill in the art would have had an expectation of success at the time the invention was made to determine a molar ratio, for example, when a bispecific antibody constructed is provided at a concentration of 2.5 mg/ml, 0.125 mM methionine results in a molar ratio of 5.25. 0.25 mM methionine results in a molar ratio of 10.5 (aka about 10x), doubling of methionine to 0.50 mM results in a molar ratio of 21.0. 1.25 mM methionine results in a molar ratio of 52.5 (aka 50x). 2.5 mM of methionine results in a molar ratio of 105 (aka 105x) as per claim 27. 5.0 mM of methionine results in a molar ratio of 210. 10.0 mM of methionine results in a molar ratio of 420. 20.0 mM of methionine results in a molar ratio of 840. 25.0 mM of methionine results in a molar ratio of 1050. 50.0 mM of methionine results in a molar ratio of 2100. 100.0 mM of methionine results in a molar ratio of 4200. 120.0 mM of methionine results in a molar ratio of 5040 (aka about 5000x) as per claim 1.
Claims 13 and 27 are included because it has long been settled to be no more than routine experimentation for one of ordinary skill in the art to optimize concentration. The courts have determined that: “[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." In re Aller, 220 F.2d 454, 454, 105 USPQ 223,235, (CCPA 1955). Since the prior art teaches that concentrations of methionine often vary according to the bispecific antibody being analyzed, and the solutions and parameters appear to work equally as well, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable concentrations of molar ratio of methionine disclosed by the prior art by normal optimization procedures known in the antibody art.
One of ordinary skill in the art would have been motivated to do so because the WO2019020745 publication teaches that methionine is one of the most favorable stabilizers, and the maximum antibody stability and antibody formulations free from particles comprise L-histidine/HCI buffer is the most favorable buffer, sucrose in combination with methionine are the most favorable stabilizers, and polysorbate 20 is the most favorable surfactant, see p. 32.
One of ordinary skill in the art would have been motivated to do so because the WO2007109221 publication teaches that adding methionine to antibody formulation increases the shelf life of the antibody formulation compared with a formulation lacking methionine. Examples of proteins include bispecific antibodies, see p. 2-3, p. 14-15. Therefore, the invention as a whole was clearly prima facie obvious to one of ordinary skill in the art at the time the invention was filed.
“The combination of familiar elements according to known method is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
“The test of obviousness is not express suggestion of the cl aimed invention in any or all of the references but rather what the references taken collectively would suggest to those of ordinary skill in the art presumed to be familiar with them.” See In re Rosselet 146 USPQ 183, 186 (CCPA 1965).
“There is no requirement (under 35 USC 103(a)) that the prior art contain an express suggestion to combine known elements to achieve the claimed invention. Rather, the suggestion to combine may come from the prior art, as filtered through the knowledge of one skilled in the art.,” Motorola, Inc, v. Interdigital Tech. Corn., 43 USPQ2d 1481, 1489 (Fed. Cir. 1997).
Accordingly, the claimed invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filling date of the claimed invention especially in the absence of evidence to the contrary.
Applicants’ arguments filed April 27, 2026 have been fully considered but are not found persuasive.
Applicants’ position is that Claims 1 and 20 have been amended to further define the bispecific antibody as a fusion protein comprising two single chain variable fragments (scFvs) joined by a linker.
The cited art does not teach or suggest the claimed invention, which addresses a problem not recognized in the cited references.
The claims are based, at least in part, on the surprising discovery that including methionine in a bispecific antibody formulation reduces aggregation of the bispecific antibody when stored at low temperatures, and particularly when the composition is frozen and stored at -304C. This observation was surprising, at least in so far that no significant inhibition of aggregation was observed for storage at higher temperatures, e.g., for liquid compositions. The cited art, discussed in more detail below, fails to recognize the unique problem identified by the applicant. The Federal Circuit's reasoning in In re Omeprazole Patent Litigation, 536 F.3d 1361, 87 USPQ2d 1865 (Fed. Cir. 2008), referenced in M.P.E.P. § 2143, is instructive. Similar to the facts of in re Omeprazole, the art cited by the Office does not recognize the problem of bispecific antibody aggregation at intermediate frozen storage temperatures (-154C to -304C). At best, the cited art may suggest aggregation as a problem at elevated temperatures and in liquid storage, but not in frozen storage at the intermediate temperatures reported in the instant application. The specification, by contrast, identifies a previously unrecognized problem: bispecific antibody constructs having the claimed structure are susceptible to aggregation when frozen and stored at intermediate temperatures (e.g., -304C), necessitating storage at -704C. Surprisingly, addition of methionine at the recited concentration reduces aggregation in formulations stored at intermediate frozen temperatures. This could not have been predicted from the cited art, and represents an advancement in the field of antibody storage.
Turning to the disclosure of the cited art, the Office alleged that Raum discloses a formulation comprising a DLL3 x CD3 bispecific antibody construct, a surfactant, a saccharide, a surfactant, a buffer, and methionine, wherein the formulation has a pH of about 5.0 to 5.5. See Action, page 17. As an initial matter, the Office cited nothing in Raum that would lead one of ordinary skill to the combination of features recited by the instant claims at least with respect to selection of methionine, much less methionine at the recited concentration. Raum provides a list of 30 different classes of additives for use with the disclosed formulations, and methionine is listed as just one example of one of the 30 different classes (i.e., as an antioxidant). See Raum, pages 73-75. The Office cited no compelling reasoning as to how or why one of ordinary skill would select an antioxidant out of the 30 different classes of additives, and to select methionine out of the over 100 exemplary additives disclosed in Raum.
The Office asserted that the skilled artisan would be motivated to look to Fast and Warne which allegedly disclose use of methionine in antibody formulations. The Office alleged that Fast purportedly discloses methionine concentrations of about 0.01 mM to about 100 mM (including about 5 to about 50 mM or about 5 to about 25 mM), and Warne purportedly discloses adding methionine to formulations at concentrations ranging from about 0.5 mM to about 145 mM. The Office alleged that it would have been obvious to "combine Raum's formulation" with the amounts of methionine disclosed in Fast and Warne "in order to reduce aggregation in the formulation and increases the shelf life of the formulation." The Office's proposed rationale is not supported by the disclosures. The Office cited nothing in Fast that purportedly suggests that aggregation is a problem with the formulations described therein, or that any issues identified with stability (or solutions to those deficiencies) would extend to bispecific antibodies having the claimed structure, a subtype of structurally distinct antibodies not disclosed in the reference. Similarly, the Office offered no reasoning as to how or why one of ordinary skill would assume that disclosure in Warne would apply to bispecific antibodies having the claimed structure, a subtype of structurally distinct antibodies not disclosed in the reference. For at least these reasons, the rejection should be withdrawn.
B. The application reports surprising and unexpected results that rebut a conclusion of obviousness.
Even if a prima facie case of obviousness was established, and Applicant does not concede this point, the presently claimed invention provides unexpected results that overcome the presumption of obviousness. See M.P.E.P. § 2144.05, citing Iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004); M.P.E.P. § 2145. The data presented in the application establishes the significant and unexpected benefits on HMW aggregation of a pharmaceutical composition comprising a bispecific antibody construct comprising a fusion protein comprising two scFvs joined by a linker, a saccharide, a surfactant, a buffer, and methionine. The remarkable effect demonstrated by the claimed formation is not predictable from the disclosures of Raum, Fast, and Warne, taken alone or together. As explained in paragraph [0007] of the instant application, protein-based pharmaceuticals including the claimed bispecific antibody constructs, such as bispecific T cell engaging (BiTE@) antibody constructs, are susceptible to aggregation (i.e., the formation of high molecular weight (HMW) species) when frozen and stored at, e.g., -30˚C. This instability necessitates storage at -70*C to minimize aggregation. The requirement to maintain a temperature of -70˚C, however, raises significant storage and transportation challenges, as special equipment and procedures are necessary to consistently maintain the low temperature.
The present application discloses the surprising technical effect of methionine at the claimed concentrations in reducing the formation of bispecific antibody construct HMW species when frozen and stored at -30˚C. As shown in Example 1, methionine reduced aggregation (i.e., the appearance of HMW species) by about 25% to about 85% in frozen pharmaceutical formulations of a variety of bispecific antibody constructs stored at -30˚C. A similar protective effect was not detected in liquid formulations stored at 4˚C or 40˚C for a similar time frame. The invention therefore provides a significant technical advantage by, e.g., simplifying the equipment and procedures required to store and transport bispecific antibody constructs while minimizing aggregation.
In more detail, Example 1 demonstrates the stability of formulations of eight different bispecific antibody constructs after storage at -10˚C to -40˚C (e.g., -15˚C) at four weeks. Samples were staged at -20˚C for 24 hours to ensure complete freezing. The samples were then stored at -15˚C for four weeks. In parallel, additional samples were stored at 44C and 400C to characterize the liquid stability of the formulation with methionine. As shown in Figure 1 of the present application, the addition of methionine reduced frozen state aggregation levels for the various bispecific antibody constructs tested after one month of storage at -154C (which represents accelerated test conditions for -304C storage). The inhibitory effect of methionine on aggregation for frozen compositions was surprising, at least in part because methionine did not display a similar effect on liquid compositions. The impact of methionine on liquid stability was assessed after four weeks of storage at 40C and 40˚C, and it was determined that the excipient did not impact the liquid stability of the bispecific antibody constructs tested. Application, Figures 2 and 3. The percent HMW species detected in the samples stored for four weeks at 40C was relatively unaffected by the presence of methionine in the formulation. Id., Figure 2. Similar results were observed under accelerated storage conditions of four weeks at 40˚C. Id., Figure 3.
The aforementioned technical results, which are attributable to methionine, would not be apparent from the disclosures or data presented in Fast and Warne. For instance, Fast Example 1 evaluates the stability of formulations comprising methionine and different antibody constructs, but does not suggest the aggregate reduction for frozen compositions disclosed by the instant application. Example 1 found no change in high molecular weight (HMW) aggregate formation between compositions after 5 freeze-thaw cycles. See Fast Table 1, Formulations D and E. There is thus no technical effect disclosed in Fast that is attributable to methionine. The reference does not suggest the surprising advantage of using 10 mM to 200 mM methionine to reduce aggregation in frozen bispecific antibody construct formulations stored at, e.g., -30*C. Warne purportedly reports that methionine reduced HMW aggregation in antibody compositions at above-freezing temperatures. The Warne data generated with liquid antibody formulations is inconsistent with the instant data generated with liquid BiTE@ formulations reported in the instant application, demonstrating the different properties of bispecific antibody constructs of the instant claims and traditional antibody constructs disclosed in Warne. The data provided in Fast and Warne is not predictive of results generated using the different construct of the instant application, and the data of Raum is similarly not predictive of the surprising results reported in the instant application.
This experimental data described in the instant application provides compelling evidence of unexpected results that are commensurate in scope with the claims and directly tied to the specific features claimed (e.g., a bispecific antibody construct comprising the claimed structure and the concentration of methionine). Such surprising results provide a dispositive basis for overcoming the obviousness rejection. See M.P.E.P. § 2144.05, citing iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004) (explaining that a presumption of obviousness may be overcome by showing that there are new and unexpected results relative to the prior art); and M.P.E.P. § 2145 (noting evidence to rebut a prima facie case of obviousness may include evidence that the claimed invention yields unexpected properties). The rejection should be withdrawn.
In response, the amendment to claims 1 and 20 is acknowledged.
In response to the argument that Raum does not teach about 10 mM to about 200 mM methionine, the WO2019020745 publication (aka Fast) teaches that Methionine is preferably used at a concentration of about 5 to about 25 mM, most preferably about 10 mM, see p. 22, lines 23-24. The reference about 5 to about 25 mM overlaps and falling within the clamed about 10 mM to about 200 mM methionine as in claim 1.
In response to that argument that Fast does not tach the claimed bispecific having the claimed structure which is a fusion protein comprising two single chain variable fragments (scFvs) joined by linker, a subtype of structurally distinct antibodies not disclosed in the reference, the WO2019020745 publication (Fast herein) teaches that the bispecific antibody wherein the first and second binding moieties are fused to each other via a peptide linker, see p. 14, p. 15, lines 19-20, in particular. The WO2019020745 publication teaches that linear antibodies, single-chain antibody molecules, e.g., scFv, see p. 8, lines 15 to 20, WO93/16185 cited therein.
Evidentiary reference WO9316185 publication teaches bispecific scFv-chain Fv fusion having two distinct binding sites on the same polypeptide chain, can be used to target via the two antigens for which the molecule is specific, e.g., VH1-linker-VL1-Linker-VH2-linker-VL2, see p. 6, lines 1-2, p. 11, line 10-16, in particular. Bispecific single-chain antibody may have specificity for both the c-erbB-2 and CD3 antigens (aka BITE, see p. 11, line 14-16.
In response to the argument of unexpected results, the unexpected results in the working examples are not commensurate in scope with the claims.
The working examples in the specification show:
Example 1
[0090] The following Example demonstrates the stability of the bispecific antibody construct formulation of the disclosure after storage at −10° C. to −40° C. (e.g., −15° C.) at four weeks.
[0091] Compositions comprising 10 mM glutamate, 9% sucrose, 0.01% PS80, 50 mM methionine, pH 4.2, were prepared, each comprising one of the following bispecific antibody constructs: BiTE®-1 (PSMA×CD3), BiTE®-2 (MSLN×CD3), BiTE®-3 (CD19×CD3), BiTE®-4 (CD33×CD3), BiTE®-5 (DLL3×CD3), BiTE®-6 (FLT3×CD3), BiTE®-7 (BCMA×CD3), and BiTE®-8 (CLDN18.2×CD3). The final protein concentration for each of BiTE®-1, BiTE®-2, BiTE®-3, BiTE®-4, BiTE®-6, BiTE®-7, and BiTE®-8 in their respective compositions was 1.5 mg/mL. The final protein concentration for BiTE®-5 was 3.75 mg/mL.
[0092] Protein samples were staged at −20° C. for 24 hours to ensure complete freezing. The samples were then stored at −15° C. for four weeks.
Example 2
[0099] Sample Preparation: An appropriate volume of 10 mM glutamate, 9% sucrose, 0.01% PS80, 200 mM methionine (pH 4.2) stock solution was added to 5 mg/mL BiTE®-5 (DLL3×CD3) (SEQ ID NO: 77) sample to achieve a final formulation of 10 mM glutamate, 9% sucrose, 0.01% PS80, pH 4.2 at varying methionine concentrations. The final protein concentration for BiTE®-5 was 2.5 mg/mL. All protein samples were staged at −20° C. for 24 hours to ensure complete freezing. The samples were then stored at −15° C. for 4 weeks. The t0 and stressed samples were evaluated for HMW content by SE-UHPLC.
However, the claims are drawn to pharmaceutical formulation comprising any (a) bispecific antibody construct which is a fusion protein comprising any single chain variable fragments (scFvs) joined by any linker, (b) any saccharide, (c) any surfactant, (d) any buffer, and (e) about 10 mM to about 200 mM methionine.
Section 716.02(d) of the M.P.E.P. states that "[W]hether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness 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. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980) (Claims were directed to a process for removing corrosion at "elevated temperatures" using a certain ion exchange resin (with the exception of claim 8 which recited a temperature in excess of 100°C). Appellant demonstrated unexpected results via comparative tests with the prior art ion exchange resin at 110°C and 130°C. The court affirmed the rejection of claims 1-7 and 9-10 because the term "elevated temperatures" encompassed temperatures as low as 60°C where the prior art ion exchange resin was known to perform well. The rejection of claim 8, directed to a temperature in excess of 100°C, was reversed.). See also In re Peterson, 315 F.3d 1325, 1329-31, 65 USPQ2d 1379, 1382-85 (Fed. Cir. 2003) (data showing improved alloy strength with the addition of 2% rhenium did not evidence unexpected results for the entire claimed range of about 1-3% rhenium); In re Grasselli, 713 F.2d 731, 741, 218 USPQ 769, 777 (Fed. Cir. 1983) (Claims were directed to certain catalysts containing an alkali metal. Evidence presented to rebut an obviousness rejection compared catalysts containing sodium with the prior art. The court held this evidence insufficient to rebut the prima facie case because experiments limited to sodium were not commensurate in scope with the claims.)
In response to the argument that the reference does not suggest the surprising advantage of using 10 mM to 200 mM methionine to reduce aggregation in frozen bispecific antibody construct formulations stored at, e.g., -30˚C, none of the rejected claims recite reduce aggregation in frozen bispecific antibody construct formulations stored at, e.g., -30˚C as argued.
For these reasons, the rejection is maintained.
Claims 11 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Raum et al (of record, WO2017021349, published February 9, 2017; PTO 892) in view of WO2019020745 publication (of record, Fast hereafter, published Jan 31, 2019; PTO 1449) and WO2007/109221 publication (of record, published September 27, 2007; PTO 1449) as evidenced by WO9316185 (newly cited, published August 19, 1993; PTO 892) as applied to claims 1-6, 8-10, 12, 18, 22, 26 and 27 mentioned above and further in view of WO2019157340 publication (of record, published August 15, 2019; PTO 1449).
The combine teachings of Raum, the WO2019020745 publication and/or WO2007/109221 publication have been discussed supra. Fast further teaches that the formulation comprising 1 to 200 mg/ml of CEA CD3 bispecific antibody (p. 1, line 6), preferably, the concentration of CEA CD3 bispecific antibody is in the range of 1 to 10 mg/ml, or 5mg/ml, see p. 21, line 18 to 25, in particular. The reference bispecific antibody concentration in the range of 1 to 10 mg/ml, or 5mg/ml is within the claimed range comprising about 1 mg/ml to about 20 mg/ml. Likewise, Raum teaches that the formulation wherein the bispecific antibody comprises 2.5 mg/ml, which is within the claimed range of about 1 mg/ml to about 20 mg/ml, see para bridging p. 65 to 66.
The references above do not teach the buffer in the formulation is a glutamate buffer as per claim 11 and wherein the formulation include glutamic acid as per claim 20.
However, the WO2019157340 publication teaches a formulation comprising a bispecific antibody, e.g., bispecific antibody that binds CD3 and CD38 (see para. [0065]), 10 mM glutamate buffer as per claim 11 (see para. [0070], [0026], [0088]), a saccharide, e.g., 9% (w/V) sucrose (para. [0021], [0084] to [0087]), a surfactant, e.g., 0.01% (w/V) polysorbate (see para. [0021] to [0022], [0082]), and wherein the pH of the composition is 4.2, see para. [0023], p. 6, para. [0026]. The WO2019157340 publication teaches that the typical bispecific antibody concentration ranges from about 0.1 mg/ml to about 20 mg/ml, see p. 7, line 1-3, para. [0146] to [0147]. Claim 20 is included as the WO2019157340 publication teaches that the frozen formulation (para. 0097], [0198], [0208]) can include glutamic acid as the buffering agent, see para. [0076]. The skilled person will be aware that such choice of a particular dosage form may for example influence the physical state, stability, rate of in vivo release and rate of in vivo clearance of an antibody, see para. [0199].
In view of the combined teachings of the references, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filling date of the claimed invention to substituting a known buffer of Raum, the WO2019020745 publication and/or WO2007/109221 publication for another, e.g., 10 mM glutamate buffer, including glutamic acid as the buffering agent, as taught by the WO2019157340 publication to arrive at the claimed invention with a reasonable expectation of success, e.g., to minimize protein aggregation during storage, loss of function and adverse immunogenic reactions, see para. [0008].
A person of ordinary skill in the art is always motivated to pursue the known options within her or his technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
“The test of obviousness is not express suggestion of the cl aimed invention in any or all of the references but rather what the references taken collectively would suggest to those of ordinary skill in the art presumed to be familiar with them.” See In re Rosselet 146 USPQ 183, 186 (CCPA 1965).
“There is no requirement (under 35 USC 103(a)) that the prior art contain an express suggestion to combine known elements to achieve the claimed invention. Rather, the suggestion to combine may come from the prior art, as filtered through the knowledge of one skilled in the art.,” Motorola, Inc, v. Interdigital Tech. Corn., 43 USPQ2d 1481, 1489 (Fed. Cir. 1997).
Accordingly, the claimed invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filling date of the claimed invention especially in the absence of evidence to the contrary.
Applicants’ arguments filed April 27, 2026 have been fully considered but are not found persuasive.
Applicants’ position is that Christian does not remedy the deficiencies in the rejection by purportedly referencing glutamate buffer and glutamic acid as composition components. Like Raum, Fast, and Warne, Christian does not disclose or suggest formulations comprising methionine at concentration recited in the instant claims, or the technical advantages imparted by methionine on the bispecific antibody constructs of the instant claims. Indeed, the surprising and unexpected results reported in the instant application could not have been predicted from Christian, even if considered in combination with Raum, Fast, and Warne.
For at least the aforementioned reasons, the section 103 rejections should be withdrawn.
In response, the arguments with respect to Raum, Fast, and Warne have been discussed supra and incorporated here by reference.
In response to the argument that the formulation include comprises about 1 mg/ml to about 20 mg/ml bispecific antibody as per amended claim 20, Fast further teaches that the formulation comprising 1 to 200 mg/ml of CEA CD3 bispecific antibody (p. 1, line 6), preferably, the concentration of CEA CD3 bispecific antibody is in the range of 1 to 10 mg/ml, or 5mg/ml, see p. 21, line 18 to 25, in particular. The reference bispecific antibody concentration in the range of 1 to 10 mg/ml, or 5mg/ml is within the claimed range comprising about 1 mg/ml to about 20 mg/ml. Likewise, Raum teaches that the formulation wherein the bispecific antibody comprises 2.5 mg/ml, which is within the claimed range of about 1 mg/ml to about 20 mg/ml, see para bridging p. 65 to 66.
Raum, the WO2019020745 publication and WO2007/109221 publication do not teach the buffer in the formulation is a glutamate buffer as per claims 11 and 20.
However, the WO2019157340 publication teaches a formulation comprising a bispecific antibody, e.g., bispecific antibody that binds CD3 and CD38 (see para. [0065]), 10 mM glutamate buffer as per claim 11 (see para. [0070], [0026], [0088]), a saccharide, e.g., 9% (w/V) sucrose (para. [0021], [0084] to [0087]), a surfactant, e.g., 0.01% (w/V) polysorbate (see para. [0021] to [0022], [0082]), and wherein the pH of the composition is 4.2, see para. [0023], p. 6, para. [0026]. The WO2019157340 publication teaches that the typical bispecific antibody concentration ranges from about 0.1 mg/ml to about 20 mg/ml, see p. 7, line 1-3, para. [0146] to [0147]. Claim 20 is included as the WO2019157340 publication teaches that the frozen formulation (para. 0097], [0198], [0208]) can include glutamic acid as the buffering agent, see para. [0076]. The skilled person will be aware that such choice of a particular dosage form may for example influence the physical state, stability, rate of in vivo release and rate of in vivo clearance of an antibody, see para. [0199].
In view of the combined teachings of the references, it would have been prima facie obvious to a person of ordinary skill in the art before the effective filling date of the claimed invention to substituting a known buffer of Raum, the WO2019020745 publication and/or WO2007/109221 publication for another, e.g., 10 mM glutamate buffer, including glutamic acid as the buffering agent, as taught by the WO2019157340 publication to arrive at the claimed invention with a reasonable expectation of success, e.g., to minimize protein aggregation during storage, loss of function and adverse immunogenic reactions, see para. [0008].
A person of ordinary skill in the art is always motivated to pursue the known options within her or his technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
“The test of obviousness is not express suggestion of the cl aimed invention in any or all of the references but rather what the references taken collectively would suggest to those of ordinary skill in the art presumed to be familiar with them.” See In re Rosselet 146 USPQ 183, 186 (CCPA 1965).
“There is no requirement (under 35 USC 103(a)) that the prior art contain an express suggestion to combine known elements to achieve the claimed invention. Rather, the suggestion to combine may come from the prior art, as filtered through the knowledge of one skilled in the art.,” Motorola, Inc, v. Interdigital Tech. Corn., 43 USPQ2d 1481, 1489 (Fed. Cir. 1997).
Accordingly, the claimed invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filling date of the claimed invention especially in the absence of evidence to the contrary.
For these reasons, the rejection is maintained.
Conclusion
No claim is allowed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHUONG HUYNH whose telephone number is (571)272-0846. The examiner can normally be reached on 9:00 a.m. to 6:30 p.m. The examiner can also be reached on alternate alternative Friday from 9:00 a.m. to 5:30 p.m.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Misook Yu, can be reached at 571-272-0839. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHUONG HUYNH/ Primary Examiner, Art Unit 1641
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