Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
This application is in response to papers filed on March 18, 2026. Pursuant to amendments filed on March 18, 2026, claims 1, 2, and 6 have been amended, claims 3-5 and 7-10 have been canceled, and claims 11-19 are newly added.
Therefore, claims 1, 2, 6, and 11-19 are currently under examination to which the following grounds of rejection are applicable.
Priority
The instant application is a continuation of International Patent application No. PCT/JP2021/030606 filed August 20, 2021. The International Application claims priority to Japanese Application 2020-139260 filed on August 20, 2020.
Therefore, the earliest possible priority for the instant application is August 20, 2020.
Response to Arguments
Withdrawn Objections/Rejections in response to Applicants’ arguments and amendments:
Specification Objections
In view of Applicants’ amendments to the Specification filed March 18, 2026, wherein the terms Operetta CLS, PerkinElmer and Harmony are marked with the proper symbols indicating use in commerce, the objection to the Specification is withdrawn.
Claim Rejections - 35 USC § 112
In view of Applicants’ amendments filed on March 18, 2026, the rejection of claims 1 and 2 under U.S.C. §112(b) have been withdrawn.
Moreover, claim 1 has been amended to recite the structure of the three-dimensional cell structure comprising “the poly-electrolyte [is] heparin and the extracellular matrix component [is] collagen… wherein a concentration of heparin and collagen each independently in the mixture is from 2.6 x10-8 mg/mL or more and to less than 1.25 x10-2 mg/mL”. Therefore, the claims rejected under U.S.C. §112(a), scope of enablement and written description, have been withdrawn.
Claim Rejections - 35 USC § 102
In view of Applicants’ amendments filed on March 18, 2026, the rejections of claims 1-6, 8 and 10 under U.S.C. §102(a)(2) as being clearly anticipated by Matsusaki et al. (US Pub. 20180355308A1; Cited in IDS filed 2/20/2023.) have been withdrawn. Moreover, it is moot as the rejection is drawn to canceled claims 3-5, 8 and 10.
A response to Applicant’s arguments with regard to a withdrawn rejection is moot. A response to any argument pertaining to a new or maintained rejection can be found below.
Maintained Objections/Rejections in Response to Applicants Arguments or Amendments
Claim Rejections - 35 USC § 103
Claim 1 remains rejected and claims 2, 6 and 11-19 are newly rejected under 35 U.S.C. 103 as being unpatentable over Matsusaki et al. (US Pub. 20180355308A1; Cited in IDS filed 2/20/2023.)
This is a modified rejection necessitated by Applicants’ amendments to the claims in the response filed March 18, 2026.
Regarding claim 1, Matsusaki teaches a method for producing a three-dimensional cell structure having a vasculature network (Claim 1, “A method of producing a three-dimensional cell tissue…”; Claim 21, “…wherein the obtained three-dimensional cell tissue has a vasculature”), preparing a mixture of cationic substance, a polyelectrolyte, an extracellular matrix component and a cell population comprising a plurality of endothelial cells in a container (US Pub. 201803555308 Claim 1, Claim 2, Claim 14; para 0071, “In the method of the present embodiment, mixing of the cells with the cationic substance, the polymeric electrolyte, and the extracellular matrix component may be performed in a suitable container”); collecting, from the mixture, a cell aggregate comprising the cell population, the cationic substance, the polyelectrolyte, and the extracellular matrix component (para [0026], “removing a liquid portion from the obtained mixture to obtain a cell aggregate”); and culturing a collected cell aggregate in a medium, wherein the mixture includes the extracellular matrix at a concentration of 1.0×10-8 mg/mL or more and less than 2.5×10-2 mg/mL (Abstract, “…and a step C of culturing the cells to obtain a three-dimensional tissue”; Claim 12, “The method of claim 1, wherein a concentration of the extracellular matrix component is from 0.05 mg/mL or more to 0.1 mg/mL or less.”). Further, Matsusaki teaches a concentration of heparin and collagen respectively (FIG 1; para 0100, “From the result, it was shown that, in a case of using NHDF, both of the concentration of heparin and the concentration of collagen were preferably more than 0 mg/mL and less than 1.0 mg/mL” ; see also US Pub. 201803555308 Claim 1)
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Moreover, Matsusaki teaches that the container has a bottom wall and a side wall (para [0086], “The culture vessel is a vessel made of a material and having a shape generally used for culture of cells or microorganisms… Examples of the culture vessel include a dish, a tube, a flask, a bottle, and a plate, but are not limited thereto.”; where the cell aggregate include cells located per unit area of the bottom wall of the container para [0092] “the number of cells per area of 100 μm in a thickness direction and 50 μm in a width direction in a region including a position (maximum point) at which the thickness becomes maximum is preferably from 5 to 70, more preferably from 10 to 60, and further more preferably from 15 to 50.”).
However, Matsusaki does not teach cells located per unit area of the bottom wall of the container at 1.5 x 104 cells/mm2 - 1.5 x105 cells/mm2 and the explicit concentration of heparin and collagen to each independently have a concentration within the range of 2.6 x 10-8 mg/mL to less than 1.25 x 10-2 mg/mL.
It would have been obvious for one of ordinary skill in the art to optimize the number of cells per area in a container having a bottom wall and a side wall based on influential considerations in the design of the assay such as quality control after short or long culture, number of cell aggregate, viability of cell population, confluency of cell aggregates and others. Thus, the prior art differs from the claimed invention only with respect to the cells located per unit area if the bottom wall of the container.
Further it would have been obvious to optimize aspects of the three-dimensional cell structure based on influential considerations of the design of the structure, such as adjusting the heparin and collagen concentration. Such claimed ranges of concentrations are result-effective variables that a skilled artisan would have routinely optimized.
The Court has stated that generally such differences amount to mere optimization and will not support patentability unless there is evidence indicating the claimed feature is critical. “[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, 456, 105 USPQ 233, 235 (CCPA 1955). (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For more recent cases applying this principle, see Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997). In KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), the Supreme Court held that "obvious to try" was a valid rationale for an obviousness finding, for example, when there is a "design need" or "market demand" and there are a "finite number" of solutions. 550 U.S. at 421.
MPEP § 2144 sets forth Applicant' s burden for rebuttal of a prima facie case of obviousness based upon routine optimization. Applicant must provide either a showing that the particular amount or range recited within the claims is critical; and/or a showing that the prior art reference teaches away from the claimed amount.
Regarding claim 2, the teachings of Matsusaki render obvious the claimed method of claim 1. Moreover, Matsusaki teaches wherein the preparing a mixture, and the precipitating, forming and collecting of the cell aggregate are conducted two or more times to collect a plurality of cell aggregates, and culturing is conducted on each of the plurality of aggregates (para [0026], “removing a liquid portion from the obtained mixture to obtain a cell aggregate, and a step A′-2 of suspending the cell aggregate in a solution to obtain a suspension, after the step A; and a step B′ of precipitating the cells from the obtained suspension to form a cell precipitate on the substrate, instead of the step B.”; para [0089], “By culturing a cell aggregate in the presence of the substance, contraction of the constructed three-dimensional tissue is suppressed.”; para 0091, “By repeating the steps (A) to (B) or (A) to (B′) of the method of the present embodiment, it is possible to stack cell aggregates or cell precipitates”).
Regarding claim 6, the teachings of Matsusaki render obvious the claimed method of claim 1. Moreover, Matsusaki teaches removing a liquid portion upon the precipitation from the mixture to obtain the cell aggregate and suspending the cell aggregate (Claim 3, “a step A′-1 of removing a liquid portion from the obtained mixture to obtain a cell aggregate, and a step A′-2 of suspending the cell aggregate in a solution to obtain a suspension, after the step A; and a step B′ of precipitating the cells from the obtained suspension to form a cell precipitate on the substrate, instead of the step B”).
Regarding claim 11, the teachings of Matsusaki render obvious the claimed method of claim 1. Moreover, Matsusaki teaches the cell structure to have a thickness (para 0039, “The method of [1], wherein a thickness of the obtained three-dimensional cell tissue is 5 to 500 μm.”; para 0041, “A three-dimensional cell tissue including: a cell; and an extracellular matrix component, wherein the three-dimensional cell tissue has a thickness of 150 μm or greater, and the number of cells per area of 100 μm in a thickness direction and of 50 μm in a width direction in a region including a position in which a thickness is the maximum is 70 or less.” See also US Pub. 201803555308 Claim 16). Matsusaki’ s three-dimensional cell tissue thickness reads on the claimed thickness of 5 µm to 200 µm.
Regarding claim 12, the teachings of Matsusaki render obvious the claimed method of claim 1. Moreover, Matsusaki teaches that the three-dimensional cell structure has a content of the extracellular matrix component of 0.1 mass% (para 0131, “ The recovered cells were mixed with a 0.1% collagen solution”).
Regarding claim 13, the teachings of Matsusaki render obvious the claimed method of claim 1. Moreover, Matsusaki teaches vascular endothelial cells (para 0128, “From the results shown in FIGS. 7 and 8, it was shown that, by using fibroblast cells and vascular endothelial cells in combination, it was possible to obtain a three-dimensional cell tissue having a vascular network.”).
Regarding claim 14, the teachings of Matsusaki render obvious the claimed method of claim 1. Moreover, Matsusaki teaches human umbilical vein endothelial cells (para 0125, “ NHDF of 1.0×10.sup.6 cells and human umbilical vein endothelial cells (HUVEC) of 1.0×10.sup.5 cells were suspended in a mixture solution…”).
Regarding claim 15 and 16, the teachings of Matsusaki render obvious the claimed method of claim 1. Moreover, Matsusaki teaches the cationic substance is tris-hydrochloric acid buffer solution (para 0033, “The method of [1], wherein the cationic substance is a tris-hydrochloric acid buffer solution, a tris-maleic acid buffer solution, a bis-tris-buffer solution, or HEPES.”; para 0125, “NHDF of 1.0×10.sup.6 cells and human umbilical vein endothelial cells (HUVEC) of 1.0×10.sup.5 cells were suspended in a mixture solution of 250 μL of a solution of 0.1 mg/mL of heparin/50 mM tris-hydrochloric acid buffer”).
Regarding claims 17 and 18, the teachings of Matsusaki render obvious the claimed method of claim 1. Moreover, Matsusaki teaches the cationic substance is tris-hydrochloric acid buffer solution at a concentration of 50mM (para 0125, “NHDF of 1.0×10.sup.6 cells and human umbilical vein endothelial cells (HUVEC) of 1.0×10.sup.5 cells were suspended in a mixture solution of 250 μL of a solution of 0.1 mg/mL of heparin/50 mM tris-hydrochloric acid buffer solution (pH 7.4) and 250 μL of 0.1 mg/mL of collagen/acetic acid solution (pH 3.7) (that is, each of the final concentrations of heparin and collagen was 0.05 mg/mL)”).
Regarding claim 19, the teachings of Matsusaki render obvious the claimed method of claim 1. Moreover, Matsusaki teaches that the cell population is fibroblasts (para 0128, “The result of the HE stain is shown in FIG. 8. As shown in FIG. 8, a vasculature surrounded by CD31 positive cells was observed in the tissue. From the results shown in FIGS. 7 and 8, it was shown that, by using fibroblast cells and vascular endothelial cells in combination, it was possible to obtain a three-dimensional cell tissue having a vascular network.”).
Response to Applicant arguments as they apply to the rejection of the claims under 35 U.S.C. 103 as being unpatentable over Matsusaki et al.
Beginning on page 8 of the remarks filed on March 18, 2026, Applicants essentially argue the following:
Claim 1 recites a particular cell density (1.5x 104 cells/mm2 to 1.5x105 cells/mm2) on the bottom wall of the container. This specific density, in combination with the claimed low- concentration heparin/collagen mixture, is essential for achieving the formation of a vascular network throughout the entire structure, which is not described or suggested by Matsusaki. Moreover, Applicants’ direct the Examiner to Figures 1-2 and Table 1, where they demonstrate vasculature throughout the structure.
Although Matsusaki et al. mention a broad range of "preferably more than 0 mg/mL and less than 1. 0 mg/mL," the Examiner specifically identifies in the Office Action their disclosed ranges as 0.05 mg/mL to 0.1 mg/mL”
The proposed range of each and heparin and collagen (2.6 x 10-8 to 1.25 x 10-2 mg/mL) is significantly lower than the specific concentrations emphasized in Matsusaki (0.05 mg/mL or higher”
In response to that argument, it has been fully considered but deemed not persuasive for the following reasons:
Regarding 1) Applicants’ arguments regarding the criticality of the cell density in combination with the concentration of heparin and collagen are not persuasive. The evidence presented in Table 1 relies on qualitative “A” and “B” evaluations of blood vessel network formation, and does not provide quantitative measurements demonstrating a critical difference between the claimed concentration ranges and the concentrations disclosed by Matsusaki. Moreover, specific ranges of cell density present optimization of known result-effective variables rather than showing unexpected results sufficient to overcome obviousness. Further, Matsusaki teaches a cell density of endothelial cells at 1.0 x 105 cells/mm2 (para 0125) which is within the claimed range of less than 1.25 x10-2 mg/mL.,_.
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Regarding 2) and 3) Applicants’ arguments regarding the criticality of the concentration of polyelectrolyte and extracellular matrix, and the ranges taught by Matsusaki are broader than what is claimed is not persuasive. The evidence presented in Table 1 relies on qualitative “A” and “B” evaluations of blood vessel network formation, and does not provide quantitative measurements demonstrating a critical difference between the claimed concentration ranges and the concentrations disclosed by Matsusaki. Additionally, Table 1 displays concentrations (e.g. 2.6 x 10-8 mg/ml) that are outside the claimed range (i.e. 2.5 x 10-8 to 1.25 x 10-2 mg/mL), that were able to display vascularization, suggesting that the claimed range is not critical. Further, Matsusaki teaches that the concentration of both heparin (polyelectrolyte) and collagen (extracellular matrix) can be at a concentration “preferably more than 0 mg/ml” which encompasses the claimed range. Additionally, specific ranges of concentration of polyelectrolyte, concentrations of heparin and collagen, present optimization of known result-effective variables rather than showing unexpected results sufficient to overcome obviousness. A skilled artisan would recognize the concentration of heparin as a parameter that can be routinely optimized based on influential considerations of the three-dimensional cell structure, and reasonably expect that it would result in vascularization.
Further, based on the provided Figure 1 and Figure 2, arguments are unpersuasive due to the absence of objective evidence as the images are indiscernible.
Double Patenting
Claims 1, 2, and 6 remain provisionally rejected and claims 11-19 are newly provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-17 of co-pending Application No. 18/171, 862 as per claims filed on 5/21/2026 (reference application) in view of Matsusaki et al. (Cited in IDS filed 2/20/2023. US Pub. 20180355308A1). Although the claims at issue are not identical, they are not patentably distinct from each other for the reasons that follow. This is a provisional non-statutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
This is a modified rejection necessitated by Applicants’ amendments to the claims in the response filed March 18, 2026.
Co-pending claim 1 recites:
“A method for producing a three-dimensional cell structure, the method comprising: preparing a mixture of a cationic buffer that comprises tris-hydrochloric acid buffer solution, an extracellular matrix component that comprises collagen, a polyelectrolyte that comprises heparin, and a cell population comprising;(i) syngeneic mouse-derived stromal cells that are non-endothelial mouse-derived cells, and(ii) syngeneic endothelial cells, which may comprise syngeneic mouse-derived endothelial cells, in an amount of 1.5% to 10% of a total cell population: collecting one or more cell aggregates from the mixture; and culturing the one or more cellular aggregates to obtain one or more first three-dimensional cell structure(s); and, optionally, culturing the first three-dimensional cell structure for a time and under conditions that form a three-dimensional structure whose decrease in thickness is suppressed over a time of five days after production compared to a control not containing mouse derived stromal cells.”
The amended claim 1 of the instant invention is directed to:
“A method for producing a three-dimensional cell structure having a vascular network, the method comprising: preparing a mixture of a cationic substance, a polyelectrolyte, an extracellular matrix component, and a cell population, comprising a plurality of endothelial cells in a container; wherein the polvelectrolyte is heparin and the extracellular matrix component is collagen; precipitating the cell population, from the mixture in the container, to form a cell aggregate in a form of slurry comprising the cell population, the cationic substance, the polyelectrolyte, and the extracellular matrix component at the walls of the container, and collecting the cell aggregate; and culturing [[a]] the collected cell aggregate in a medium, wherein a concentration of heparin and collagen each independently in the mixture is from 2.6 x10-8 mg/mL to less than 1.25 x10-2 mg/mL, wherein the container has a bottom wall and a side wall such that the endothelial cells of the cell aggregate comprise cells located per unit area of the bottom wall of the container at 1.5x104 cells/mm2 to 1.5x105 cells/mm2, and wherein the vascular network is formed throughout the entire three-dimensional cell structure. ”
The difference between the instant application and co-pending Application ‘862 is that the co-pending claim is further limited by its recitation of the phrase “mouse-derived endothelial cells”, which is absent in claim 1.
However, Matsusaki also teaches methods for producing a three-dimensional cell structure using the steps similar to `862 [0023-0025, 0064-0068]. Matsusaki teaches three-dimensional cell structure using their method can be produced using plurality of kinds of cells such as one selected from vascular endothelial cells and fibroblasts (=stromal cells; [0037-0038, 0082) and are derived from cells of species including mouse [0082], as required by co-pending claims 1-3, 8. Matsusaki also teaches cell mixture comprises 1-50% or 1.5-10% endothelial cells and wherein cells are syngeneic cells, as required by co-pending claims 9, 14, 16 (Example 7, 8).
Therefore, based on Matsusaki’s teachings, it would be obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention that the method of claims of `415 could be modified to comprise mouse-derived stromal fibroblast cells in addition to the recited endothelial cells and that each of these cells could be derived from a mouse such that they are syngeneic. Since both `415 and Matsusaki teach methods for producing a three-dimensional cellular tissue using similar steps, combining the teachings of Matsusaki with `415 would not require inventive ingenuity. Similarly, Since both `415 and Matsusaki teach methods for producing a three-dimensional cell structure using similar steps, an ordinary artisan would reasonably expect that inclusion of mouse-derived stromal cells in the method of `415 would result in a three-dimensional cell structure with endothelial cells and mouse-derived stromal cells. Thus the claims of the instant application are encompassed by, or overlap in scope significantly with, the claims of 18/171, 862. This is a provisional non-statutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Applicant arguments as they apply to the rejection of the claims Provisional Double Patenting
Beginning on page 8 of the remarks filed on March 18, 2026, Applicants’ essentially argue the following:
The application 18/171,862 do not recite the presently claimed limitations, e.g., the specific claimed content of collagen and heparin, cell density, etc.
Regarding 1) in view of the amendments to instant claim 1, it merely presents a species of the co-pending Application ‘862, and therefore is not patentably distinct from each other. The claims of the instant application and the co-pending application are directed to the same inventive concept of producing a three-dimensional cell structure by forming and culturing a plurality of cell aggregates comprising heparin, collagen, cell density and cationic substance. The limitations of instant claim 1 merely present result-effective characteristics that a skilled artisan would routinely optimize. As such, the presently claimed subject matter remains an obvious variant of the invention claimed in the co-pending application.
New Grounds of Rejections/Objections Necessitated by the Amendments
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 2, 6, and 11-19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, it is indefinite in its recitation of the term “cells located per unit area” as it lacks proper antecedent basis. It is unclear if the “cells” are drawn to the endothelial cells or the cell population recited in the claim.
Claim 1 has been amended to recite “wherein the vascular network is formed throughout the entire three-dimensional cell structure”, however the term “the entire three-dimensional cell structure” lacks proper antecedent basis. Claim 1 recites “a three-dimensional cell structure”.
Claim 1 has been amended to recite “wherein the vascular network is formed throughout the entire three-dimensional cell structure.” Claim 1 is indefinite because the claim merely recites “A method for producing a three-dimensional cell structure having a vascular network” in the preamble of the claim. It is unclear if the entire three-dimensional cell structure refers to the precipitated cell aggregate in a form of slurry, the collected cell aggregate, the collected cell aggregate in a medium and others. As such the metes and bounds of the claim are indefinite.
Regarding claim 2, it is indefinite in its recitation of the term “the plurality collected cell aggregates” as it lacks proper antecedent basis. Claim 2 only recites “a plurality of cell aggregates”.
Claims 6 and 11-19 are rendered indefinite insofar that they depend on claim 1.
Conclusion
No claims 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 Katriel B Kasayan whose telephone number is (571)272-1402. The examiner can normally be reached 10-4p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Maria G Leavitt can be reached at (571) 272-1085. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KATRIEL BARCELLANO KASAYAN/ Examiner, Art Unit 1634
/MARIA G LEAVITT/ Supervisory Patent Examiner, Art Unit 1634
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