DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 06/15/2026 has been entered.
Claims 1, 10, 17, and 34 are amended; claims 2-9, 11-16, 18-33, 36-64, and 67-70 are cancelled; and claims 71-80 are new.
Claims 1, 10, 17, 34-35, 65-66, and 71-80 are currently pending and are examined on the merits herein.
Priority
The instant application, filed 03/14/2023, is a 371 filing of PCT/CN2021/121535, filed 09/29/2021, and claims foreign priority to PCT/CN2020/118988, filed 09/29/2020.
Withdrawn Objections and Rejections
In the office action of 03/13/2026,
The nucleotide sequence was objected to for having sequences in the specification without SEQ ID NOs. Applicant’s amendment to the specification, specifically page 44, to include SEQ ID NOs for the sequences has overcome the objection and the objection is withdrawn.
Claims 9-10 were rejected under 35 USC 112(d). The cancellation of claim 9 and applicant’s amendment to claim 10 to remove limitations regarding the second antigen has overcome the rejections and the rejections are withdrawn.
Claims 1, 3-5, 9-10, 17, 34-35, and 65-66 were rejected under 35 USC 103 over WO’346. Applicant’s amendment to independent claim 1, and claim 34 (which has been amended to be an independent claim) to recite a fusion protein comprising (1) a LTα or variant thereof, (2) a first LTβ or variant thereof, and (3) a second LTβ or variant thereof, have overcome the rejections and the rejections are withdrawn.
The following rejections are new as necessitated by applicant’s amendment to the claims.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 10, 17, 34-35, 65-66, 71-73, and 75-80 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2020/097346 A1 (McGinnes, K., et al) 14 May 2020 in view of US 2018/0222958 A1 (Gurney, A.L., et al) 09 Aug 2018.
WO’346 teaches strategies to co-express a co-stimulatory polypeptide and an anti-GPC3 chimeric antigen receptor (CAR) for use in cell-based immunotherapy. Modulation of costimulatory pathways may be achieved by expressing, or overexpressing, in hematopoietic cells, including hematopoietic stem cells or immune cells such as T cells or NK cells, one or more costimulatory polypeptides. In some instances, hematopoietic cells that co-express one or more co-stimulatory polypeptides and an anti-GPC3 CAR would be expected to exhibit superior bioactivities, for example, cell proliferation, activation, e.g., increased cytokine production, e.g., IL-2 or IFN-γ production, cytotoxicity, and/or in vivo anti-tumor activity (page 1, line 32 – page 2, line 7).
WO’346 demonstrates that expressing tumor necrosis factor (TNF) superfamily costimulatory peptides CD70, LIGHT, and OX40L in T cells in combination with an anti-GPC3 CAR with a 4-1BB costimulatory domain enhances the activity of the T cell relative to anti-GPC3 CAR alone. In the presented experiments, T cells were transduced with virus encoding an anti-GPC3 CAR polypeptide with a 41BB costimulatory domain (GPC3-CAR-4-1BB; SEQ ID NO: 1) or virus encoding GPC3-CAR-4-1BB and CD70 (SEQ ID NO: 34), LIGHT (SEQ ID NO: 43), or OX40L (SEQ ID NO: 47) separated by a P2A ribosomal skip sequence (page 73, lines 14-21). WO’346 further teaches that LIGHT is also known as HVEML and is a ligand of HVEM (page 19, lines 20-37).
WO’346 further discloses that the CAR comprises a CD8α signal sequence, an extracellular antigen binding domain that binds GCP3, a CD8 hinge domain, a CD8 transmembrane domain, and an intracellular domain comprising a 4-1BB costimulatory domain and a CD3ζ cytoplasmic signaling domain (page 44, Table 1 – line 13).
WO’346 tested T cells co-expressing the anti-GPC3 CAR with a 4-1BB costimulatory domain and TNF superfamily member polypeptides CD70, LIGHT, or OX40L in tumor xenograft models in mice and demonstrated enhanced activity (page 78, Example 8). WO’346 studied subcutaneous human hepatocellular carcinoma (HCC) xenograft models established mice. The xenografts were established by subcutaneous injection of Hep G2, Hep 3b, or JHH7 HCC cells. Treatment with GPC3 CAR-T cells was initiated when tumor volumes reached approximately 100 mm3 Mice were randomized into treatment groups of 5 mice each, based on tumor volume, and treated with T cells expressing the GPC3 CAR alone or in combination with CD70, LIGHT, or OX40L at a dose of 5x105 CAR+ cells intravenously (pages 78-79, Example 8). As WO’346 teaches the administration of the CAR+ T cells to mice, the T cells would have necessarily had to been in the form of a composition comprising pharmaceutically acceptable excipient, such as a vehicle.
WO’346 further teaches alternative co-stimulatory polypeptides and teaches that the co-stimulatory polypeptide can be a member of the B7/CD28 superfamily, a member of the TNF superfamily, or a ligand thereof (page 88, claim 1). WO’346 further teaches that the co-stimulatory peptide is a member of the B7/CD28 superfamily or ligands thereof selected from a group that includes CD28, CD80, CD86, ICOS, ICOSL, B7-H3, and B7-H4 (page 88, claim 3). WO’346 further teaches that the co-stimulatory polypeptide can be a member of the TNF superfamily or a ligand thereof, selected from a group including 4-1BB, 4-1BBL, CD27, CD30, CD30L, CD40, CD40L, GITR, GITRL, HVEM, LIGHT, OX40, OX40L, and LTβR (page 88, claim 3).
WO’346 further teaches that the costimulatory polypeptide may include members of the TNF superfamily or ligands thereof, including TNF-beta, which is LTα, and LTβ (page 2, line 22; page 10, line 30 – page 11, line 8; page 38, line 14).
WO’346 teaches that LTα (TNF-beta) is a member of the TNF superfamily involved in the regulation of cell survival, proliferation, differentiation, and apoptosis. The amino acid sequence of an exemplary human TNF-beta is provided as SEQ ID NO: 45 (page 20, lines 19-26), which is identical to instant SEQ ID NO: 7, as shown in the alignment below:
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WO’346 teaches that LTβ has a sequence of SEQ ID NO: 66 (page 27, lines 36-41), which is identical to instant SEQ ID NO: 10 as shown in the ABSS alignment below:
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WO’346 further teaches that LTBR, or TNFRSF3, is a cell surface receptor that binds to the lymphotoxin membrane form which is a complex of LTα and LTβ. It plays a role in apoptosis, lipid metabolism, and the development and organization of lymphoid tissue and transformed cells (page 23, lines 25-29). WO’346 teaches that LTα and LTβ form heterotrimers which anchor LTα to the cell surface, is involved in the formation of secondary lymphoid organs, and mediates a large variety of inflammatory, immunostimulatory, and antiviral responses (page 27, lines 29-34).
WO’346 teaches that the nucleic acid encoding the co-stimulatory peptide and the nucleic acid encoding the anti-GPC3 CAR polypeptide can be cloned into the same expression vector (page 49, lines 21-32). In some instances, the nucleic acid may comprise two coding sequences, one encoding the anti-GPC3 CAR polypeptide and the other encoding a polypeptide capable of modulating a co-stimulatory pathway, i.e., a co-stimulatory polypeptide. The nucleic acid comprising the two coding sequences can be expressed as independent (and physically separate) polypeptides. To achieve this goal, the nucleic acid sequence may contain a third nucleotide sequence located between the first and second coding sequences. The third nucleotide may, for example, encode a ribosomal skipping site. A ribosomal skipping site is a sequence that impairs normal peptide bond formation. This mechanism results in the translation of additional open reading frames from one messenger RNA. This third nucleotide sequence may, for example, encode a P2A, T2A, or F2A peptide (page 50, lines 1-22). WO’346 further teaches vectors comprising the nucleic acids (page 43, lines 1-30).
WO’346; however, does not teach a fusion polypeptide comprising (1) a LTα or variant thereof, (2) a first LTβ or variant thereof, and (3) a second LTβ or variant thereof.
US’958 teaches polypeptides, agents, and molecules that bind LTβR, including single chain lymphotoxin-αββ polypeptides. Also disclosed are methods of using the polypeptides for inducing and/or enhancing the immune response, as well as methods for the treatment of diseases, such as cancer (abstract).
US’958 teaches fusion proteins comprising lymphotoxin-αββ that bind lymphotoxin-beta receptor (LTβR). The molecules/agents include agonists of LTβR that is involved in the development and organization of lymphoid tissue and in chemokine secretion/release. Methods of using the molecules such as methods of activating/enhancing LTβR signaling, activating an immune response, promoting an immune response, increasing an immune response, recruiting immune cells to a target, recruiting TILs to a tumor, activating T cells, increasing the activity of T cells, promoting activity of T cells, inhibiting tumor growth and/or treating cancer are also provided (page 10, [0093]).
US’958 teaches that lymphotoxin-alpha/beta/beta is a central factor involved in the imitation of the germinal center formation. Lymphotoxin-αββ is a heterotrimeric species comprised of one subunit or copy of lymphotoxin-alpha and two subunits or copies of lymphotoxin-beta. Lymphotoxin-αββ binds to the lymphotoxin-beta receptor (LTβR). The activation of LTβR initiates a signaling event resulting in the expression of chemokines, including but not limited to, CXCL12, CXCL13, CCL19, and CCL21. These chemokines serve to induce the migration of dendritic cells, T cells, and B cells to establish the germinal center (page 1, [0007]).
US’958 further teaches that the polypeptide, molecule, or agent comprises a first copy and a second copy of the extracellular domain of lymphotoxin-beta or a fragment thereof, and a copy of lymphotoxin alpha or a fragment thereof. In some embodiments the fragment of lymphotoxin-beta and/or lymphotoxin-alpha is a function fragment, e.g., is able to form a lymphotoxin αββ heterotrimer and able to bind LTβR. The full-length amino acid sequences of mouse lymphotoxin-alpha and mouse lymphotoxin-beta are known in the art as are the full length amino acid sequences of human lymphotoxin-alpha and lymphotoxin-beta. Lymphotoxin-alpha is a soluble protein and lymphotoxin-beta is a membrane bound protein. The extracellular domain of human lymphotoxin-beta is generally considered to be approximately amino acids 48-244 of SEQ ID NO: 13. Those of skill in the art may differ in their understanding of the exact amino acids corresponding to the extracellular domain of human lymphotoxin-beta. Thus, the N-terminus and/or the C-terminus of the extracellular domain described may be extended or shortened by 1, 2, 3, 4, 5, 6, 7, 8, 0, 10, or more amino acids (page 14, [0135]-[0136]). As US’958 teaches that the fusion protein comprises a first and second copy of the extracellular domain of lymphotoxin-beta, as well as amino acid ranges of the extracellular domain, an ordinarily skilled artisan would reasonably envision that the first and second lymphotoxin-beta polypeptides do not include a transmembrane or an intracellular domain as recited in instant claims 79-80.
US’958 teaches that the fusion protein is structured sequentially as (a) lymphotoxin-alpha-lymphotoxin-beta-lymphotoxin-beta; (b) lymphotoxin-beta-lymphotoxin-alpha-lymphotoxin-beta or ( c) lymphotoxin-beta-lymphotoxin-beta-lymphotoxin-alpha. In some embodiments, the copies of lymphotoxin-beta and lymphotoxin-alpha are all directly linked to each other. In an alternative embodiment, the copies of lymphotoxin-beta and lymphotoxin-alpha are linked to each other with a linker, including a peptide linker (page 14, [0137]). US’958 teaches that the linker is a peptide linker and that linkers should not adversely affect the expression, secretion, or bioactivity of the fusion proteins. Linkers should not be antigenic and should not elicit an immune response. Suitable linkers include mixtures of glycine and serine. Other amino acids can include threonine and alanine (page 14, [0138]).
US’958 teaches that the fusion polypeptides are made using recombinant DNA techniques as known to one skilled in the art. Polynucleotides encoding a polypeptide are isolated and can be cloned into suitable expression vectors which produce the polypeptide when transfected into host cells such as E. coli, simian COS cells, or CHO cells (page 20-21, [0167]-[0168]).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the CAR T cell and polynucleotide of WO’346 by selecting LTα and LTβ as the co-stimulatory polypeptides in the CAR-T cells/polynucleotides disclosed by WO’346 based on the teachings of WO’346 as a whole and as is further supported by US’958. It would have further been obvious to either have the LTα and LTβ polypeptides disclosed by WO’346 in the form of a fusion Lymphotoxin-αββ protein as disclosed by US’958 or to substitute the LTα and LTβ polypeptides disclosed by WO’346 with the Lymphotoxin-αββ fusion protein disclosed by US’958, where the Lymphotoxin-αββ fusion protein comprising one subunit or copy of lymphotoxin-alpha and two subunits or copies of lymphotoxin-beta.
It would have been obvious to use LTα and LTβ as WO’346 teaches the ligands for use as co-stimulatory polypeptides in CAR T cells and teaches that LTα and LTβ form a complex that interacts with the cell surface receptor LTBR and plays a role in apoptosis, lipid metabolism, the development and organization of lymphoid tissues, transformation of cells, and mediates a large variety of inflammatory and immunostimulatory responses. An ordinarily skilled artisan would have had a reasonable expectation of success as WO’346 explicitly discloses the use of LTα and LTβ for use as co-stimulatory polypeptides in CAR-T cells. This conclusion of obviousness is further supported by KSR (E) obvious to try. In this case, WO’346 teaches a finite number of co-stimulatory polypeptides for inclusion in CAR-T cells including LTα and LTβ. As such, one of ordinary skill in the art could have pursued these known, potential solutions, with a reasonable expectation of success. See MPEP 2143. The selection of LTα and LTβ is further supported by US’958, which teaches that activation of LTBR initiates a signaling event resulting in the expression of chemokines that serve to induce the migration of dendritic cells, T cells, and B-cells to establish a germinal center increasing the immune response to tumors. US’958 also teaches that the polypeptides disclosed, which activate LTBR, can be used in methods of inducing, activating, promoting, increasing, enhancing, or prolonging an immune response to cancer, a tumor, and/or tumor cells (page 2, [0009]).
An ordinarily skilled artisan would have been motivated to have the LTα and LTβ polypeptides in the form of a fusion Lymphotoxin-αββ protein as disclosed by US’958 or to substitute the LTα and LTβ polypeptides with the Lymphotoxin-αββ fusion proteins disclosed by US’958 as US’958 teaches that the lymphotoxin-alpha/beta/beta fusion protein is the heterotrimeric species, or complex, that binds to LTβR leading to activation and the expression of chemokines. Furthermore, the inclusion of the Lymphotoxin-αββ fusion protein in the CAR T cell of WO’346 would provide targeted delivery of the fusion protein to the tumor/tumor microenvironment which is also a goal discussed in US’958 (pages 2-3, [0010]; [0015]). An ordinarily skilled artisan would have had a reasonable expectation of success as WO’346 teaches that the co-stimulatory molecule included in the CAR T cell can be LTα and LTβ which form a complex that interacts with the cell surface receptor LTBR.
Regarding claims 17 and 71, US’958 teaches an embodiment in which the human lymphotoxin alpha is SEQ ID NO: 12 (pages 14-15, [0139]). US’958, SEQ ID NO: 12 is identical to instant SEQ ID NO: 8 as shown in the alignment below. As US’958, SEQ ID NO: 12 is identical to instant SEQ ID NO: 8 and does not include any additional amino acids, the sequence meets the limitations of both the LTα comprising and consisting of SEQ ID NO: 8 as recited in claims 17 and 71, respectively.
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Regarding claims 17 and 72-73, US’958 teaches that, in some embodiments, a polypeptide comprises a first and second copy of human lymphotoxin-beta comprising amino acids 49-244 of human lymphotoxin-beta comprising amino acids 49-244 of SEQ ID NO: 13 and a copy of human lymphotoxin-alpha comprising amino acids 35-205 of SEQ ID NO: 10 (page 14, [0139]).
US’958, SEQ ID NO: 13, amino acids 49-244, are identical to instant SEQ ID NO: 11, as shown in the alignment below. As US’958 specifies amino acids 49-244 of the sequence for use in the fusion protein, the sequence taught by US’958 meets the instant claim 17 limitation of the first or second LTβ comprising SEQ ID NO: 11 and also the instant claim 73 limitation of the first or second LTβ consisting of SEQ ID NO: 11.
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Additionally, US’958 SEQ ID NO: 10, amino acids 35-205, are identical to instant SEQ ID NO: 9, as shown in the alignment below. As US’958 specifies amino acids 35-205 of the sequence for use in the fusion protein, the sequence taught by US’958 meets the instant claim 17 limitation of the LTα comprising SEQ ID NO: 9 as well as the instant claim 72 limitation of the LTα consisting of SEQ ID NO: 9.
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Regarding claim 75, US’958 teaches that the fusion protein can comprise SEQ ID NO: 16, 17, or 18 (page 2, [0013]).
US’958, SEQ ID NO: 16 is 98.3% identical to instant SEQ ID NO: 13, as shown in the alignment below, which meets the instant claim 75 limitation of a sequence that is at least 95% identical to SEQ ID NO: 13.
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Regarding claim 76, as discussed in detail above, US’958 teaches lymphotoxin-αββ fusion proteins comprising LTα – LTβ – LTβ (page 2, [0013]). US’958 also teaches that the LTα and LTβs can be linked either directly to each other or linked to each other with a peptide linker (page 2, [0010]).
As discussed above, US’958 also teaches that the LTβ used in the fusion protein can comprises a first and second copy of human lymphotoxin-beta comprising amino acids 49-244 of SEQ ID NO: 13.
As discussed above, WO’346 teaches that LTα has a sequence of SEQ ID NO: 45.
It is noted that WO’346, SEQ ID NO: 45 comprises sequences that are also disclosed in US’958. For instance, US’958 teaches that proteins generally contain a signal sequence that directs the transport of the proteins and that such sequences are located at the N-terminus of nascent polypeptides (page 21, [0169]). US’958 also demonstrates that the amino acids 1-34 of WO’346 are the predicted signal sequence of human lymphotoxin-alpha (page 56, SEQ ID NO: 10, underlined). US’958 also discloses the LTα sequence of SEQ ID NO: 11 (page 56) which is identical to WO’346 SEQ ID NO: 45, amino acids 35-205.
Using the LTα disclosed by WO’346, SEQ ID NO: 45 and directly attaching a first and second LTβ of US’958, amino acids 49-244 of SEQ ID NO: 13 provides a sequence that is 97.5% identical to instant SEQ ID NO: 14 as shown in the alignment below. As the sequence is 97.5% identical, the sequence meets the instant claim limitation of an amino acid sequence that is at least 95% identical to the amino acid sequence of SEQ ID NO: 14.
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It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to produce the fusion protein in the CAR-T cell taught by the combination of WO’346 and US’958 using the LTα – LTβ – LTβ format disclosed by US’958 and directly linking the LTα and LTβs as disclosed by US’958, where LTα is WO’346, SEQ ID NO: 45 and LTβ is US’958, SEQ ID NO: 13, amino acids 49-244. It would have been obvious to use this combination of WO’346 and US’958, and an ordinarily skilled artisan would have had a reasonable expectation of success as US’958 teaches LTα – LTβ fusion protein formats that can bind and activate LTβR and WO’346 also teaches the activation of LTβR with complexes of LTα and LTβ. Additionally, as discussed in detail above, WO’346 and US’958 teach overlapping sequences for LTα and LTβ.
Claims 17 and 74 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2020/097346 A1 (McGinnes, K., et al) 14 May 2020 in view of US 2018/0222958 A1 (Gurney, A.L., et al) 09 Aug 2018 as applied to claim 1 above, and in further view of WO 2018/151820 A1 (Loew, A., et al) 23 Aug 2018.
It is noted that claim 17 was rejected above under 35 USC 103 over WO’346 in view of US’958. The claim is further rejected here to demonstrate that alternative sequences recited also would have been obvious in view of the prior art.
The combination of WO’346 and US’958 teach the CAR-T cell of claim 1 as discussed in detail above.
As discussed in detail above, US’958 teaches that the extracellular domain of human lymphotoxin-beta is generally considered to be approximately amino acids 49-244 of SEQ ID NO: 13. Those of skill in the art may differ in their understanding of the exact amino acids corresponding to the extracellular domain of human lymphotoxin-beta. Thus, the N-terminus and/or C-terminus of the extracellular domain described may extend or be shortened by 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, or more amino acids (page 14, [0136]).
US’958 further teaches various sequences for LTβ including SEQ ID NOs: 15 and 108 (pages 14-15, [0139]). US’958 teaches that SEQ ID NO: 108 is a minimal LTβ sequence comprising amino acids 87-243 (page 74, SEQ ID NO: 108). The sequence is the same as instant SEQ ID NO: 12 with the exception of the C-terminal glycine in the instant sequence, which is noted is the amino acid in position 244 of SEQ ID NO: 13 disclosed by US’958. US’958 also teaches numerous sequences for LTβ that include the G in position 244, including, for example, SEQ ID NO: 15 (page 57).
US’958, however, does not explicitly disclose a sequence consisting of instant SEQ ID NO: 12.
WO’820 teaches multifunctional fusion proteins including a trimeric ligand and methods of making and using the multifunctional molecules for the treatment of cancer (abstract).
WO’820 teaches a fusion protein in which the first, second, and third monomer molecules are independently chosen from lymphotoxin-alpha or lymphotoxin-beta, wherein at least one of the three monomers is LTα and at least one is LTβ. WO’820 teaches embodiments with two LTβ monomers, both having an amino acid sequence of SEQ ID NO: 3 and a LTα having an amino acid sequence of SEQ ID NO: 1 (page 30, line 12 – page 31, line 5).
WO’820, SEQ ID NO: 3, is identical to instant SEQ ID NO: 12 as shown in the alignment below. As WO’820 does not include any additional amino acids, the sequence meets the instant claim 17 limitation of the first or second LTβ comprising SEQ ID NO: 12 as well as the instant claim 74 limitation of the first or second LTβ consisting of SEQ ID NO: 12.
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It is noted that WO’820, SEQ ID NO: 1, which is the LTα sequence taught by WO’820, is also identical to US’958, SEQ ID NO: 12, and instant SEQ ID NO: 8.
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the CAR-T cell taught by the combination of WO’346 and US’958 by substituting the LTβ sequence with WO’820 SEQ ID NO: 3. It would have been obvious to make this substitution and the result would have been predictable as, like US’958, WO’820 is also teaching fusion proteins comprising a LTα monomer and two LTβ monomers. An ordinarily skilled artisan would have had a reasonable expectation of success as both US’958 and WO’820 teach the same LTα monomer for use in the fusion protein demonstrating that the LTβ sequence disclosed by WO’820 would be expected to function in the fusion protein disclosed by the combination of WO’346 and US’958. Furthermore, US’958 teaches a sequence that is identical with the exception of a single G amino acid from LTβ position 244 and teaches that the sequences can be extended to include additional C-terminal amino acids and also teaches that the extracellular sequence of LTβ can extend to amino acid 244, further establishing a reasonable expectation of success.
Response to Arguments
Applicant’s arguments in the response filed 06/15/2026 have been fully considered in so far as they apply to the rejections of the instant office action, but were not persuasive.
Applicant argues that the claim 1 has been amended to recite a fusion protein and that the cited reference, WO’346 (referenced by applicant as “McGinnes”) does not teach a fusion protein. Applicant argues that even assuming that WO’346 does disclose expressing LTα and LTβ, the expression of these proteins separately is not the same as the fusion proteins in a 1:1:1 ratio which remain permanently next to each other.
The rejections of the instant office action are new and do not rely on the teachings of WO’346 alone. In the rejections, the reference US’958 has been applied to demonstrate that fusion proteins comprising a LTα and a first and second LTβ were known in the prior art and would have been obvious to use in the CAR T cells disclosed by WO’346.
Applicant further argues that WO’346 does not provide a reasonable expectation of success that the combination of LTα and LTβ will work to improve anti-tumor performance. Applicant cites Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) as stating that prior art fails to provide a requisite “reasonable expectation” of success where it teaches merely to pursue a “general approach that seemed to be a promising field of experimentation, where the prior art gave only general guidance as to the particular form of the claimed invention and how to achieve it.
This argument, however, is not persuasive.
WO’346 does not provide only a general approach that seemed to be a promising field of experimentation nor does WO’346 only give general guidance, as suggested by applicant. Rather, as discussed in detail in the rejection of the instant office action, WO’346 teaches a finite number of costimulatory polypeptides for inclusion in CAR-T cells including LTα and LTβ polypeptides. As such, it would have been obvious for an ordinarily skilled artisan to pursue these costimulatory polypeptides with a reasonable expectation of success. This reasonable expectation of success is further supported in the instant office action by the teachings of US’958 which demonstrates that it was known that fusion proteins comprising complexes of LTα and LTβ activate LTβR resulting in the expression of chemokines and inducing, activating, promoting, increasing, enhancing, or prolonging immune response to cancer, tumors and/or tumor cells (page 1, [0007]; page 2, [0009]).
Furthermore, although WO’346 does not experimentally demonstrate the combination of LTα and LTβ in the CAR T cells to improve anti-tumor performance, conclusive proof of efficacy is not required in order to establish obviousness, for which the requirement is a reasonable expectation of success. MPEP 2143.02 (I) states that “conclusive proof of efficacy is not required to show a reasonable expectation of success” and reasoning that "the expectation of success need only be reasonable, not absolute”. Furthermore, MPEP 2123 II. states that “disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments.“ and “[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed.”
Applicant further argues that WO’346 teaches that not all costimulatory polypeptides enhance activity. Applicant further references Table 2 of WO’346 as disclosing that many costimulatory polypeptides lead to reduced proliferation and/or reduced IL-2 secretion. Applicant specifically references ICOSL as being taught by WO’346 but leading to reduced proliferation and/or reduced IL-2 secretion.
This argument is not persuasive.
While WO’346 states that not all of the co-expressed costimulatory polypeptides enhanced activity with regards to IL-2 secretion and proliferation, WO’346 does not demonstrate that this is the case with LTα and LTβ nor does WO’346 teach away from the use of LTα and LTβ. Additionally, although the results provided in WO’346 Table 2 do demonstrate varying IL-2 and proliferation activity using different costimulatory polypeptides with different CARs, such teachings do not criticize, discredit, or otherwise discourage the use of LTα and LTβ polypeptides as co-stimulatory polypeptides for use with the CAR-T cells. The results also do not demonstrate or suggest that there would not have been a reasonable expectation of success in using LTα and LTβ. As discussed above, conclusive proof of efficacy is not required in order to establish obviousness.
Furthermore, even if different CAR T cells respond differently to the inclusion of different costimulatory polypeptides, for instance based on the primary costimulatory domain of the CAR as suggested by the results in WO’346 Table 2, the rejected claims do not require any specific CAR or CAR domains nor do the claims require any specific outcomes aside from the general treatment of a disease or disorder as is recited in instant claim 66. As such, it would have been obvious to try the co-stimulatory polypeptides disclosed by WO’346 in a given CAR T cell with a reasonable expectation of success.
Applicant further argues that the current application found that expressing a LTα/LTβ fusion protein leads to more pronounced anti-tumor efficacy in CAR T cells, referencing Example 7 and Fig. 9.
Example 7 of the instant disclosure states that CAR-T cells armored with engineered mutant LTα/LTβ show superior anti-tumor efficacy in comparison to wild-type LTα/LTβ armored CAR-T cells. The example explored the anti-tumor activity of CAR-T cells armored with engineered mutant LTα/LTβ comprising SEQ ID NO: 14 in comparison to CAR T cells armored with wild-type LTα/LTβ. Tumor length and width was measured by caliper every 3-4 days after CAR T treatment. The example concludes that comparison to CAR T cells armored with wild-type LTα/LTβ, the anti-tumor efficacy was more pronounced in CAR-T cells armored with engineered mutant LTα/LTβ TALE, as shown in Fig. 9. Figure 9 is duplicated below for convenience.
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It is noted that no information regarding the CAR in the CAR T cell or the tumor treated is explicitly provided in Example 7. Based on the other examples, it is considered that the CAR possibly comprised an anti-GPC2 sdAb, a 4-1BB costimulatory domain and a CD3z intracellular signaling domain and that the tumor cells were neuroblastoma SH-SY5Y cells.
It is also noted that, while the example provides a comparison to untransduced T cells, the example does not provide results from the CAR-T alone or the CAR-T in combination with LTα and LTβ as is suggested by the closest prior art reference WO’456.
In so far as the CAR-T armored with the wild-type LTα/LTβ could be considered to be a closer prior art, as discussed in MPEP 716.02, as it includes a fusion protein as opposed to LTα and LTβ individually expressed, both appear to have led to a significant reduction in tumor volume compared to untransduced T cells (unT). MPEP 716.02 states that “A difference of degree is not as persuasive as a difference in kind – i.e., if the range produces ‘"a new property dissimilar to the known property,’" rather than producing a predictable result but to an unexpected extent.” In this case, both the inclusion of wildtype LTα/LTβ and mutant LTα/LTβ provided a significant reduction in tumor volume compared to untransduced T cells, and it is not clear that this difference is a difference in kind not simply a difference in degree.
Furthermore, even if the results were identified as being unexpected, which they are not, the results discussed in the response are not commensurate with the entire scope of the instantly claimed invention.
MPEP 716.02(d) states “Whether 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.”
The instantly claimed invention encompasses a CAR T cell comprising a CAR with any extracellular binding domain capable of binding to any antigen, any transmembrane domain, and any intracellular domain. Additionally, based on the use of “comprising” language in the claim, the CAR may also encompass any additional structures including any costimulatory domain, or combinations thereof, within the CAR structure. The examples of the instant disclosure, however, only demonstrate and compare the use of the LTα/β with a specific anti-GPC2 CAR T cell. Table 2 presented by WO’346, which was discussed by applicant in the response, suggests that the CAR T cell used with the co-stimulatory polypeptide, particularly the costimulatory domain in the CAR T cells, may impact the degree of efficacy of the co-stimulatory polypeptide. For instance, when the CD40L was included in a CAR with a 4-1BB costimulatory domain, IL-2 and proliferation were lower than when the domain was used in a CAR with a CD28 costimulatory domain, indicating that efficacy of the CAR T cell is not only impacted by the costimulatory polypeptide that is included, but also by the structure of the CAR.
Furthermore, the claims encompass any LTα/LTβ fusion protein so long as the fusion protein comprises one LTα and a first and second LTβ, including the wild-type LTα/LTβ fusion protein that applicant argues the mutant fusion protein of SEQ ID NO: 14 is better than.
Additionally, the instant claims encompass the treatment of any disease or disorder in a subject; however, the example referenced demonstrates improved anti-tumor activity in a single neuroblastoma tumor model (Examples 4-5, pages 126-127). As such, the examples do not demonstrate that such results would occur over the entire scope of the claimed invention.
Conclusion
No claims are allowed.
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/AUDREY L BUTTICE/Examiner, Art Unit 1647
/SCARLETT Y GOON/Supervisory Patent Examiner
Art Unit 1693
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