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 .
Acknowledgments and Claim Status
The Examiner acknowledges receipt of the replacement drawing filed 9/20/2024.
Note(s): Claims 1-26 are pending.
Priority
This application claims benefit to PRO 63/363,841 filed 4/29/2022 and also claims benefit to PRO 63/363,309 filed 4/20/2022.
Note(s): The earliest effective filing date is the actual filing date (4/20/2023) of the application. The pending claims are not supported in the provisional applications.
Claim Interpretation
Claim 1 is directed to a compound comprising a silicon-fluoride acceptor and a heteroaromatic ring wherein the heteroaromatic ring is selected from the group consisting of pyridine, pyridine oxide, pyridinium, pyrazole, fused pyrazole derivative, benzofuran, benzothiophene, indole, azaindole, imidazole, and pyrimidine as set forth therein.
Claim 14 is directed to a method of synthesizing a radiopharmaceutical compound comprising a silicon fluoride compound and a heteroaromatic ring as set forth therein.
Applicant’s Election
In the response filed 1/16/2026, Applicant elected Group I (claims 1-13) without traverse.
In the response to the notice of not fully complying with the restriction requirement (Applicant did not elect a single species for initial examination, see notice mailed 4/1/2026), Applicant's election with traverse of Group I (pending claims 1-13) filed 5/29/2026 is acknowledged. The traversal is on the grounds that (1) the Examiner has not properly established that the inventions are distinct and (2) the Examiner’s burden statement is conclusory and fails to adequately establish a serious search and/or examination burden. This is found non-persuasive for reason of record in the restriction requirement mailed 11/19/2025 and the reasons set forth herein.
Independent claim 1 is directed to a compound comprising a silicon-fluoride acceptor and a heteroaromatic ring wherein the heteroaromatic ring is selected from the group consisting of pyridine, pyridine oxide, pyridinium, pyrazole, fused pyrazole derivative, benzofuran, benzothiophene, indole, azaindole, imidazole, and pyrimidine wherein the heteroaromatic ring is one of the following:
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,
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, and
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wherein
F is independently F, 18F, or 19F;
A is independently H, CH3, CH2-CH3, CH3-CH2-CH(CH3), CH(CH3)2, and C(CH3)3;
U is independently O-CH3, CH3, CH2CH3, H, I, Br, Cl, F, N(CH3)2, and CH2CH(NH2)CO2H;
X is independently O, S, and N;
Y is independently C and N;
R1, R2, and R3 are independently CH3, CH2-CH3, H, L1-CH2C≡C, L1-CH3, L1-G,
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, and
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;
L1, L2, L3, L4, and L5 are independently
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p = 0-12;
Q is a chelator; and
G is independently any somatostatin receptor type 2 binding ligand, any gastrin releasing peptide receptor binding ligand, any prostate specific membrane antigen binding ligand, any fibroblast activation protein binding ligand, or any CXCR-4 binding ligand.
As indicated by the structures of independent claim 1, all of the structures do not have a common core. If it is asserted that
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is the common core of the structure, that is not a correct assessment as each A is independently H, CH3, CH2-CH3, CH3-CH2-CH(CH3), CH(CH3)2, and C(CH3)3 and such structures are not obvious variants of one another, but according to Agrawal et al (Journal of Non-Crystalline Solids, 1985, Volumes 77 & 78, pages 75-78), it is disclosed that such structure (SiFmHn wherein m and n may be 1 and 2, respectively to yield SiFH2; see abstract of Agrawal et al) is well-known in the art. Thus, that portion of the structure is not what dominates and determines classification of the multitude of structures. It is the heteroaromatic structure that determines classification.
The multitude of distinct species generated from the various heteroaromatics groups in combination with F which generates radioactive and non-radioactive species depending upon whether a radioisotope is present or not; A; U; X which is oxygen, sulfur, or nitrogen; Y which is carbon or nitrogen; R1, R2, and R3 which are independently structures that may contain amino acid sequences, alkyl groups, groups containing triple bonds, groups containing hydroxyl groups, linear and branched groups, groups optionally interrupted by nitrogen or oxygen; single amino acid residue; groups containing phenyl groups; groups containing 5-membered carbon rings; groups containing sulfur groups; and the compounds optionally contain any somatostatin receptor type 2 binding ligand, gastrin releasing peptide receptor binding ligand, prostate specific membrane antigen binding ligand, fibroblast activation protein binding ligand, and CXCR-4 binding ligand.
For the reasons set forth supra, the restriction requirement is still deemed proper and is therefore made FINAL as not only are the species encompassed by the claims distinct, but searching the full scope of the pending claim is a burden on the Examiner. Still, the process of synthesizing the compound (e.g., see pending claim 14, for example) would result in a multitude of distinct products being generated as detailed supra. Furthermore, the compounds include both radiolabeled and non-radiolabeled species which are distinct from one another. Also, just because structures fall in the same CPC grouping does not mean that they are not structurally distinct from one another. For example, if a species is classified based on having a nitrogen in a ring, then the ring may be any ring size and have multiple nitrogen atoms therein. The structures are still distinct from one another (e.g., 5-membered ring with one nitrogen vs a 5- or 8-membered ring with one or more nitrogen atoms).
Applicant elected the species wherein for the silicon fluoride acceptor F is F, 18F, or 19F.
Note(s): Applicant asserts that the species are patentably indistinct. However, it is duly noted that F is not radioactive and both 18F and 19F are radioactive.
A is C(CH3)3; the heteroaromatic ring is pyrazole of Formula II wherein Applicant has identified R1 and R2 and not the variable U. Thus, the pyrazole structure of Formula II must be that which lacks the variable U which is the second appearing pyrazole structure in independent claim 1, line 10:
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. R1, R2, and R3 are L1-L2-L3-G and L1-L2-Q.
Note(s): The structure
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does not contain the variable R3. In addition, Applicant was respectfully requested to elect a single species, not a grouping of species as one did not indicate that the species are patentably indistinct. Hence, the first substance, L1-L2-L3-G is the elected value of R1 and R2 because it is the first appearing substance in the listing.
Applicant elected the disease binding ligand (G) as a gastrin releasing peptide receptor ((GRPR) binding ligand. In addition, Applicant indicated that the process of conjugating the disease binding ligand to the compound is performed by coupling chemistry.
The variables L1, L2, L3, L4, and L5 were listed as being (CH2-CH2-O)p, (Glu-His)p, NH-C5H9N-CH2-(C=O), CH2-CH2-NH, and NHCH2-(C=O).
Note(s): The structure
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does not contain the variables L4 and L5. In addition, Applicant was respectfully requested to elect a single species, not a grouping of species as one did not indicate that the species are patentably indistinct. Hence, the first substance, (CH2-CH2-O)p wherein p = 1 is the elected value of L1, L2, and L3 because it is the first appearing substance in the listing.
Q is the chelator DOTA. For the metal ion, Applicant elected Lu or 177Lu and stated that they are patentably indistinct. However, it is duly noted that Lu is not radioactive while 177Lu is radioactive.
Initially, Applicant’s elected species was searched and no prior art was found to reject the claims. Thus, the search was extend over the full scope of the pyrazole structures:
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and
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and the fused pyrazole derivatives:
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, and
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. The search was not further extended as set forth in detail supra. Thus, claims 1-13 have only been examined to the extent that they read upon
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, and
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.
Note(s): The structures
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and
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appearing in claim 7 were not searched as they are not encompassed in the pyrazole and fused pyrazole structures set forth herein.
The structure in claim 9
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was not searched as it is not encompassed in the pyrazole and fused pyrazole structures set forth herein.
Withdrawn Claims
Claims 1-13 (all claims in part) and 14-26 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention/species.
Information Disclosure Statement
The information disclosure statements filed 11/19/2024 and 5/29/2026 were considered.
Specification
The disclosure is objected to because of the following informalities: the structures appearing on page 14 are difficult to read. Applicant is respectfully requested to submit readable copies of the structures.
Appropriate correction is required.
Written Description Rejection
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-13 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Applicant is reminded that an inventor is entitled to a patent to protect his work only if he/she produces or has possession of something truly new and novel. The invention being claimed must be sufficiently concrete so that it can be described for the world to appreciate the specific nature of the work that sets it apart from what was before. The inventor must be able to describe the item to be patented with such clarity that the reader is assured that the inventor actually has possession and knowledge of the unique composition that makes it worthy of patent protection. The pending application does not sufficiently describe the invention as it relates to G groups other than
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, and
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. Thus, what the reader gathers from the instant application is a desire/plan/first step for obtaining a desired result. While the reader can certainly appreciate the desire for achieving a certain end result, establishing goals does not necessarily mean that an invention has been adequately described.
While compliance with the written description requirements must be determined on a case-by-case basis, the real issue here is simply whether an adequate description is necessary to practice an invention described only in terms of its function and/or based on a disclosure wherein a description of the components necessary in order for the invention to function are lacking. In order to satisfy the written description requirement, the specification must describe every element of the claimed invention in sufficient detail so that one of ordinary skill in the art would recognize that the inventor possessed the claimed invention at the time of filing. In other words, the specification should describe an invention and does so in sufficient detail that one skilled in the art can clearly conclude that the inventor created what is the claimed. Thus, the written description requirement is lacking in the instant invention since the various terms as set forth above are not described in a manner to clearly allow persons of ordinary skill in the art to recognize that Applicant invented what is being claimed.
Improper Markush Grouping
Claims 1-6 and 13 are rejected on the basis that it contains an improper Markush grouping of alternatives. See In re Harnisch, 631 F.2d 716, 721-22 (CCPA 1980) and Ex parte Hozumi, 3 USPQ2d 1059, 1060 (Bd. Pat. App. & Int. 1984). A Markush grouping is proper if the alternatives defined by the Markush group (i.e., alternatives from which a selection is to be made in the context of a combination or process, or alternative chemical compounds as a whole) share a “single structural similarity” and a common use. A Markush grouping meets these requirements in two situations. First, a Markush grouping is proper if the alternatives are all members of the same recognized physical or chemical class or the same art-recognized class, and are disclosed in the specification or known in the art to be functionally equivalent and have a common use. Second, where a Markush grouping describes alternative chemical compounds, whether by words or chemical formulas, and the alternatives do not belong to a recognized class as set forth above, the members of the Markush grouping may be considered to share a “single structural similarity” and common use where the alternatives share both a substantial structural feature and a common use that flows from the substantial structural feature. See MPEP § 2117.
The Markush grouping of heteroaromatic ring structures; R1, R2, and R3 variables; and L1, L2, L3, L4 and L5 variables are improper because the alternatives defined by the Markush grouping do not share both a single structural similarity and a common use for the following reasons.
The claims are directed to heteroaromatic structures. Specifically, independent claim 1 is directed to a compound comprising a silicon-fluoride acceptor and a heteroaromatic ring wherein the heteroaromatic ring is selected from the group consisting of pyridine, pyridine oxide, pyridinium, pyrazole, fused pyrazole derivative, benzofuran, benzothiophene, indole, azaindole, imidazole, and pyrimidine wherein the heteroaromatic ring is one of the following:
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, and
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that lack a common core. If it is asserted that
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is the common core of the structure, that is not a correct assessment as each A is independently H, CH3, CH2-CH3, CH3-CH2-CH(CH3), CH(CH3)2, and C(CH3)3 and such structures are not obvious variants of one another, but according to Agrawal et al (Journal of Non-Crystalline Solids, 1985, Volumes 77 & 78, pages 75-78), it is disclosed that such structure (SiFmHn wherein m and n may be 1 and 2, respectively to yield SiFH2; see abstract of Agrawal et al) is well-known in the art. Thus, that portion of the structure is not what dominates and determines classification of the multitude of structures; the heteroaromatic group basis of classification.
The variables R1, R2, and R3 are independently CH3, CH2-CH3, H, L1-CH2C≡C, L1-CH3, L1-G,
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, and
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;
L1, L2, L3, L4, and L5 are independently
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p = 0-12;
Q is any chelator; and
G is independently any somatostatin receptor type 2 binding ligand, any gastrin releasing peptide receptor binding ligand, any prostate specific membrane antigen binding ligand, any fibroblast activation protein binding ligand, or any CXCR-4 binding ligand.
The species do not contain a common heteroaromatic ring structure. In addition, based on the variables associated with the heteroaromatic ring structure, the structure comprises a wide variety of rings optionally containing one or more heteroatom and carbon atom combinations (linear/branched as well as substituted and unsubstituted all of which are optionally substituted with a heteroatom) that may be linked in various orientations with halogens, amino acid sequences, and nitrogen, oxygen, and sulfur containing groups. Also, the structures may be conjugated to a multitude of possible disease binding ligands that include any somatostatin receptor type 2 binding ligand, any gastrin releasing peptide receptor binding ligand, any prostate specific membrane antigen binding ligand, any fibroblast activation protein binding ligand, or any CXCR-4 binding ligand. Thus, there is no common core consistent with the compounds since the claims embrace species from various different chemical classes and structural orientations.
In the instant case, if it is asserted that the claims share a common utility, namely they are imaging or radiotherapy, the genus does not share a substantial structural feature essential to the utility which is a feature that is essential to the activity/function of the claimed species. The only component that is probably consistent from compound to another is
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. As a result, such a grouping would be repugnant to scientific classification because the
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group alone is not responsible for the utility of the entire molecule (e.g., diagnostic and therapeutic abilities) as for imaging and therapeutic purposes, it is the radionuclide and/or disease targeting ligand that determine the targeting area and whether imaging or therapeutic radioligand therapy occurs. Hence, the Markush grouping is improper.
To overcome this rejection, Applicant may set forth each alternative (or grouping of patentably indistinct alternatives) within an improper Markush grouping in a series of independent or dependent claims and/or present convincing arguments that the group members recited in the alternative within a single claim in fact share a single structural similarity as well as a common use.
112 Second Paragraph Rejections
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 1-6 and 11-13 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.
Claims 1-6 and 11-13: Independent claim 1 is ambiguous for the following reasons. According to MPEP 2173.05(h), while a Markush grouping may include a large number of alternatives, and not necessarily be indefinite under, in certain circumstances, a Markush group may be so expansive that a skilled artisan cannot determine the metes and bounds of the claimed invention.
Independent claim 1 is directed to a compound comprising a silicon-fluoride acceptor and a heteroaromatic ring wherein the heteroaromatic ring is selected from the group consisting of pyridine, pyridine oxide, pyridinium, pyrazole, fused pyrazole derivative, benzofuran, benzothiophene, indole, azaindole, imidazole, and pyrimidine wherein the heteroaromatic ring is one of the following:
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wherein
F is independently F, 18F, or 19F;
A is independently H, CH3, CH2-CH3, CH3-CH2-CH(CH3), CH(CH3)2, and C(CH3)3;
U is independently O-CH3, CH3, CH2CH3, H, I, Br, Cl, F, N(CH3)2, and CH2CH(NH2)CO2H;
X is independently O, S, and N;
Y is independently C and N;
R1, R2, and R3 are independently CH3, CH2-CH3, H, L1-CH2C≡C, L1-CH3, L1-G,
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;
L1, L2, L3, L4, and L5 are independently
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p = 0-12;
Q is a chelator; and
G is independently a somatostatin receptor type 2 binding ligand, a gastrin releasing peptide receptor binding ligand, a prostate specific membrane antigen binding ligand, a fibroblast activation protein binding ligand, or a CXCR-4 binding ligand.
The multitude of distinct species generated from the various heteroaromatics groups in combination with F which generates radioactive and non-radioactive species depending upon whether a radioisotope is present or not; A; U; X which is oxygen, sulfur, or nitrogen; Y which is carbon or nitrogen; R1, R2, and R3 which are independently structures that may contain amino acid sequences, alkyl groups, groups containing triple bonds, groups containing hydroxyl groups, linear and branched groups, groups optionally interrupted by nitrogen or oxygen; single amino acid residue; groups containing phenyl groups; groups containing 5-membered carbon rings; groups containing sulfur groups; and the compounds optionally contain any somatostatin receptor type 2 binding ligand, any gastrin releasing peptide receptor binding ligand, any prostate specific membrane antigen binding ligand, any fibroblast activation protein binding ligand, and any CXCR-4 binding ligand.
Thus, the claim encompasses multiple Markush groups and subgroups thereof. As a result, pending claim 1 encompasses a massive number of distinct alternative members such that one skilled in the art cannot determine the metes and bounds of the claim. Thus, due to an inability to envision all of the compounds defined by the Markush groups, the claim is deemed to be vague and indefinite.
Since claims 2-6 and 11-13 depend upon independent claim 1 for clarity, those claims are also vague and indefinite.
Claims 11-13: According to MPEP 2173.05(p), a single claim directed to both a product and method steps for using such product is indefinite. In particular, the claims are indefinite because while the claim initially sets forth a product, the claim limitations are not directed to the product, but rather to actions involving the product which creates confusion as to when direct infringement occurs. Specifically, it is unclear whether infringement occurs when one has a product comprising the silicon-fluoride acceptor and heteroaromatic ring or when (1) the compound is configured for PET imaging and therapeutic radioligand therapy; (2) G is conjugated to the compound via a process selected from coupling chemistry, peptide coupling chemistry, copper catalyzed azide alkyne cycloaddition, or solid phase peptide synthesis; and/or (3) 3-p-C-NETA is configured to chelate with 177Lu for therapeutics; DOTA and DOTAGA are configured to chelate with 177Lu or 225Ac for therapeutics; and/or DOTA and DOTAGA are configured to chelate with 68Ga, 89Zr, or 64Cu for PET imaging. Thus, for the reasons supra, the claims are ambiguous.
Comments/Notes
It should be noted that the full scope of claims 1-13 were not searched (see detailed discussion supra). The claims are free of the prior art of record for the pyrazole and fused pyrazole structures detailed above. In particular, the claims are free of the prior art of record for the specific pyrazole and fused pyrazole silicon fluoride containing structures because the prior art neither anticipates nor renders obvious those specific structures. The closest art is that of Calle et al (Synthesis, 2001, No. 13, pages 1949-1958). Calle et al disclose structurally similar compounds to those of the pending invention.
Conclusion
Claims 1-13 are rejected and claims 14-26 are withdrawn.
Future Correspondences
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/D. L. Jones/
Primary Patent Examiner
Art Unit 1618
August 4, 2026
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