CTFR 18/310,048 CTFR 98129 enseDETAILED ACTION Claim Status As of the Non-Final Office Action mailed 9/25/2025, claims 1-20 were pending. In Applicant's Response filed on 2/25/2026, claims 1, 9-10, 12, 14-15 and 17-20 were amended and claims 11 and 13 were canceled. As such, claims 1-10, 12, and 14-20 are pending and have been examined herein. Withdrawn Objections/Rejections The objections and rejections presented herein represent the full set of objections and rejections currently pending in this application. Any objections or rejections not specifically reiterated are hereby withdrawn. Claim Rejections - 35 USC § 103 – Necessitated by Amendment 07-06 AIA 15-10-15 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 (i.e., changing from AIA to pre-AIA) 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. 07-20-aia AIA 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. 07-23-aia AIA 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. 07-21-aia AIA Claim (s) 1-4, 8-10, and 14-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Reichman et al (Stem Cells. 20 Feb 2017; 35(5):1176-1188; of record) in view of Sowden et al (WO2018154295A1, 2/21/2018; Published 8/30/2018; of record) . Reichman teaches developing a two-step xeno-free/feeder-free (XF/FF) culture system to efficiently differentiate hiPSCs into retinal cells (abstract). This simple method, relies only on adherent hiPSCs cultured in chemically defined media, bypassing embryoid body formation. In less than 1 month, adherent hiPSCs were able to generate self-forming retinal organoids containing retinal progenitor cells (RPCs) (“wherein the retinal cells are derived from stem cells, wherein the stem cells are selected from . . . human induced pluripotent stem cells” as in instant claim 20 ). Floating cultures of isolated structures enabled the differentiation of RPCs into all types of retinal cells in a sequential overlapping order, with the generation of transplantation-compatible CD73 + photoreceptor precursors in less than 100 days. The culture conditions allow the maintenance of both mature cones and rods in retinal organoids until 280 days with specific photoreceptor ultra structures (abstract). Moreover, both hiPSC-derived retinal organoids and dissociated retinal cells can be easily cryopreserved while retaining their phenotypic characteristics and the preservation of CD73 + photoreceptor precursors. Concomitantly to neural retina, this process allows the generation of RPE cells that can be effortlessly amplified, passaged, and frozen while retaining a proper RPE phenotype (abstract). Retinal organoids cultured until D84 or D100 were dissociated using papain and retinal cells were cryopreserved using the cold Cryostem freezing medium (“generating a three-dimensional retinal organoid; dissociating the three dimensional retinal organoid” as in instant claim 1 ; “wherein the three-dimensional retina l organoid is enzymatically dissociated” as in instant claim 3; “wherein the enzyme is papain” as in instant claim 4 ; “wherein the three-dimensional retinal organoid reaches between about DD45 and DD300 prior to being dissociated” as in instant claim 8 ; “wherein the three-dimensional retinal organoid reaches about DD 90 to about DD 140 prior to being dissociated” as in instant claim 9 ). After thawing, cells were plated on Poly-D-Lysin/Laminin treated coverslips to be cultured for five additional days in vitro (DIV) (“wherein the retinal cell population consists of at least about 70% single cells” as in instant claim 10 ; please note that claim 10 is an intended result of the dissociation step). Immunostaining revealed that frozen RCVRN + photoreceptors have kept their strong CD73 expression as in nonfrozen dissociated cells (“Cryopreservation of photoreceptor precursors” para 2; Fig. 5I–5L). Similar observations were made on a double CRX + and RCVRN + cell population (Fig. 5M–5P) (“selecting for a retinal cell population wherein at least about 60% of the cells of the retinal cells express a marker of photoreceptor cell identity” as in instant claim 1; “wherein the marker of photoreceptor cell identity is CRX or RCVRN” as in instant claim 2 ). The expression of genes specific for mature photoreceptors, such as RHODOPSIN (RHO), BLUE or RED/GREEN (R/G) OPSIN (OPS), emerges only after 100 days (Fig. 2B). Immature photoreceptors immunoreactive for CRX, OTX2, and RCVRN can be identified at D49 (Fig. 2C, 2D), and a stronger expression of these markers was observed at D84 (Fig. 2E). Rods and cones can be clearly identified either by RHO or R/G OPS, BLUE OPS and CAR immunostaining (“Differentiation of RPCs” para 1) (“wherein, of the rod photoreceptor cells . . . at least about one cell expressing RHO” as in instant claim 14 ). Regarding claims 15 and 16, Reichman is silent to the presence of “less than about 10% of the cells express a marker of bipolar cell identity; b. less than about 20% of the cells express a marker of Muller glia cell identity; c. less than about 10% of the cells express a marker of retinal microglia cell identity; d. less than about 5% of the cells express a marker of forebrain neural progenitor cell identity; e. less than about 3% of the cells express a marker of retinal progenitor cell identity” as recited in instant claim 15 and “wherein: a. the marker of bipolar cell identity is one or more of ISL1, SEBOX,CAPB5, BHLHE23, GRM6, SCGN, NRN1L, GRIKI, KLHDC8A, and PROX1;b. the marker of Muller glia cell identity is one or more of AQP4, PRDX6, VIM, HES1, SLC1A3, GLUL, CLU, RLBP1 and LHX2; c. the marker of retinal microglia cell identity is one or more of PTPRC, MPEG1, and CXCR1; d. the marker of forebrain neural progenitor cell identity is one or more of NKX2.2, RGCC, . . . , BTG2, GADD45A, and GADD45G; and/or e. the marker of retinal progenitor cell identity is one or more of HOPX, CDK4, CCND2, VSX2, and CCND1” as in instant claim 16 . However, as Reichman teaches the required steps of generating a retinal organoid, dissociating the organoid, and selecting for retinal photoreceptor cells, anything beyond the recited steps is, absent evidence to the contrary, an inherent result of practicing the claimed method. Please note that this also applies to the marker expressions of instant claims 17-19 . The difference between Reichman and the invention as instantly claimed is that it does not teach that the retinal cell population comprises 15% to 45% cone photoreceptor cells and 55-85% rod photoreceptor cells (claim 1 in-part) or that more than about 30% of the cone cells express CNGA3, CNGB3, ARR3, THRB; and/or at least about one cell expressing S-opsin. Sowden teaches photoreceptor cells. The reference teaches human cell population enriched for photoreceptor cells, wherein photoreceptor cells make up at least 80% of the cells in the population, and wherein the photoreceptor cells have not been genetically manipulated to aid the enrichment (see claim 13 of Sowden). It also teaches that the enriched population of cone photoreceptor cells, wherein cone photoreceptor cells make up at least 20% of the cells in the population (overlaps with “wherein the retinal cell population comprises about 15% to about 45% cone photoreceptor cells” as in instant claim 1 in-part ). Given that at least 80% of the cells in the population from retinal organoid where at least 20% are cone cells, the then approximately 60% would be rod cells, overlapping with “wherein the retinal cell population comprises about 55% to about 85% rod photoreceptor cells” as in instant claim 1 in-part . Furthermore, the reference teaches 5-10% of the cone photoreceptor population expresses S-opsin, whereas the majority of cones (90-95%) express either L-opsin or M-opsin light-sensitive proteins (Background of the invention, para 2) (“wherein, of the cone photoreceptor cells: at least about one cell expressing S-opsin” as in instant claim 12 ). The cell populations can be enriched utilizing endogenously expressed cell surface biomarkers that can be leveraged to gently isolate photoreceptor cells, enabling the isolation and purification of photoreceptor cells or cone photoreceptor cells from populations of cells for the purpose of cell replacement therapy, exploration of other therapeutic applications, disease modelling and basic research (Summary of the invention, para 4). Therefore, it would have been obvious prior to the effective filing date of the instantly claimed invention to create a population of retinal cells from retinal organoid as taught by Reichman, where the population in enriched for both rod and cone cells as taught by Sowden, to arrive at the instantly claimed invention. As Sowden shows retinal cell populations derived from retinal organoids can be enriched for photoreceptor cells, one of ordinary skill would have been motivated to enrich the cell population of Reichman for a particular subset of rod and cone cells with a reasonable expectation of advantageously having a leveraged population of subsets of cells useful for cell replacement therapy, disease modeling, etc. as taught by the prior art . Response to Arguments 07-37 Applicant’s arguments have been fully considered but are not persuasive. On p. 9-12 of Remarks, Applicant argues, in sum, that Sowden does not disclose or suggest concurrent rod/cone compositions in a single population. Applicant argues that the populations enriched for “photoreceptor cells” or “cone photoreceptor cells” as separate embodiments. Applicant argues that even if Sowden suggests cone enrichment, that the rejection does not identify where the references teaches or suggests Applicant’s specific, concurrent cone and rod percentages. Applicant argues that there is no articulated reason to combine the references to Applicant’s precise rod/cone percentages and marker thresholds. Applicant also argues that that prior to Applicant’s disclosure, one of ordinary skill did not know how to produce a mixed population with defined makeup of rod/cone cells. In response, the examiner disagrees. Reichman renders prima facie obvious, as reiterated above, applicant’s instantly claimed steps of i) generating a 3D retinal organoid, ii) dissociating the organoid, and iii) selecting for retinal cell population based on marker identity. The Sowden reference that you can enrich for photoreceptor cells ( i.e., a mixed population of cells) with varying percentages of the cells within the population. Moreover, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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) (see MPEP 2144.05). Thus, Applicant’s argument is not persuasive. The examiner disagrees with Applicant’s contention that there is no articulated reason to combine the references; as stated above, Sowden shows retinal cell populations derived from retinal organoids can be enriched for photoreceptor cells, one of ordinary skill would have been motivated to enrich the cell population of Reichman for a particular subset of rod and cone cells with a reasonable expectation of advantageously having a leveraged population of subsets of cells useful for cell replacement therapy, disease modeling, etc. as taught by the prior art. This, in the examiner’s view, is sufficient teaching, suggestion, or motivation to combine the references. Thus, Applicant’s arguments are not persuasive. 07-22-aia AIA Claim (s) 5-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Reichman et al in view of Sowden et al as applied to claim s 1-4, 8-10, and 14-20 above, and further in view of Cowan et al (Cell. 2020 Sep 17;182(6):1623-1640.e34; of record) . The teachings of Reichman and Sowden were recited in the above 35 U.S.C. 103 rejection as applied to claim 1 and 3 of which claim 5-7 depend. The teachings will not be repeated here. The difference between the teachings and the invention as instantly claimed is that it does not teach wherein the retinal cells are contacted with a composition to ensure that the cells remain in a dissociated cell suspension (related to claim 5), wherein the composition is an enzyme (related to claim 6), and wherein the enzyme is DNAse (related to claim 7). Cowan et al teaches cell types of the human retina and its organoids at single-cell resolution (title). The reference teaches the dissociation of organoids and human retina into single cells. The single-cell dissociation protocol was adapted from an existing protocol (“Single-cel RNA sequencing of retinal organoids” para 1). The retinal piece (derived from human retina or retinal organoid) was washed 2 × at 37°C with 1 mL ‘ringer solution’ without calcium. Activated papain solution was prepared by mixing 8 U of papain with 48 μl of ‘activator’ containing H2O with 1.1 μM EDTA, 5.5 mM L-cysteine and 0.07 mM 2-mercaptoethanol and incubating for 30 minutes at 37°C before diluting with 950 μl of 37°C ringer solution (same para). Tissue pieces were incubated at 37°C in activated papain solution: 300 μl per organoid for 35 minutes; 500 μl per human retinal piece for 30 minutes. The papain digestion reaction was stopped by placing the tubes on ice and adding equal volumes of ‘stop solution’ containing Neurobasal A medium, 2 mM GlutaMAX, 10% FBS and 20 U / ml DNase (same para). Samples were centrifuged at 200 g and 4°C for 30 s and washed using Neurobasal A supplemented with 2 mM GlutaMAX and 10% FBS: 1 mL per organoid; 1.5 mL per retinal piece (same para). A single cell suspension was generated by gently triturating 20 × with a 1,000-μl pipette tip in ice cold Neurobasal A, 2 mM GlutaMAX, 2% B27 supplement without vitamin A, and 20 U / ml DNase until no large clumps were visible: 300 μl per organoid; 500 μl per human retinal piece (Same para). Finally, the reference teaches that cell viability post-suspension creation was typically above 80% (same para). This shows that papain can be combined with DNAse to successfully digest retinal organoids to form single cell suspensions, reading on “wherein the retinal cells are contacted with a composition to ensure that the cells remain in a dissociated cell suspension” as in instant claim 5, “wherein the composition is an enzyme” as in instant claim 6, and “wherein the enzyme is DNAse” as in instant claim 7. Therefore, it would have been obvious prior to the effective filing date of the instantly claimed invention to create a population of retinal cells from retinal organoid as taught by Reichman and Sowden in combination, where DNase is used to create single cell suspension as taught by Cowan, to arrive at the instantly claimed invention. As Cowan shows using papain and DNase to digest retinal organoids, one of ordinary skill would have been motivated to combine papain with DNase according to known methods to yield the predictable result of advantageously obtaining a single cell suspension of retinal cells with viability above 80% as taught by the prior art . Response to Arguments On p. 12-13 of Remarks, Applicant argues that claim 1 was amended to incorporate limitations of claims 11 and 13 that were not rejected under Reichman and Cowen. Applicant purports that the cited art of Reichman and Cowen fail to teach or suggest the subject matter of those claims and that Reichman and Cowen fail, then, to teach the subject matter of 5-7. In response, the examiner disagrees. In the previous Non-Final Office action, claims 11 and 13 were rejected in view of Reichman and Sowden (utilized herein to reject newly amended claim 1, which incorporates the limitations of 11 and 13). As such, claim 1 (and its dependents) have been established as prima facie obvious in view of these references. Regarding claims 5-7, the Cowen reference teaches the utilization of DNase in the dissociation of retinal organoids to create single cell suspensions as instantly claimed. Thus, Applicant’s arguments are not persuasive. Double Patenting - Modified 08-33 AIA The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg , 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman , 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi , 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum , 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel , 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington , 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13. The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA/25, or PTO/AIA/26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer. 08-35 Claim s 1, 3-6, 8-10, and 20 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim s 1 and 8-17 of copending Application No. 18936315 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘315 claims would anticipate the ‘048 claims if it were available as prior art. Claim 1 of ‘315 recites “An in vitro method to produce sorted population of retinal cells, comprising: a) generating a three-dimensional retinal organoid; b) dissociating the three-dimensional retinal organoid; and c) positively sorting retinal cells based on one or more marker of photoreceptor cell identity and/or negatively sorting retinal cells based on one or more marker of non-photoreceptor cell identity to produce the sorted population of retinal cells”, which would anticipate instant claim 1 . Claim 8 of ‘315 recites “wherein the three-dimensional retinal organoid is enzymatically dissociated”, which would anticipate instant claim 3 . Claim 9 of ‘315 recites “wherein the enzyme is papain and/or trypsin”, which would anticipate instant claim 4 . Claim 10 of ‘315 recites “herein the retinal cells are contacted with a composition to ensure that the cells remain in a dissociated cell suspension”, which would anticipate instant claim 5 . Claim 11 of ‘315 recites “wherein the composition comprises an enzyme”, which would anticipate instant claim 6 . Claim 12 of ‘315 recites “wherein the three-dimensional retinal organoid reaches between about DD 45 and DD 300 prior to being dissociated”, which would anticipate instant claim 8 and overlaps with instant claim 9 . Claim 13 of ‘315 recites “wherein the three-dimensional retinal organoid reaches about DD 90 to about DD 140 prior to being dissociated”, which would anticipate instant claim 9 . Claim 14 of ‘315 recites “wherein the retinal cell population consists of at least about 70% single cells”, which would anticipate instant claim 10 . Claim 15 of ‘315 recites “wherein the retinal cell population comprises about 55% to about 85% rod photoreceptor cells”, which would anticipate instant claim 13 . Please note that 55 to 85% rod photoreceptor cells would mean 15 to 45% cone photoreceptor cells are present in the population, anticipating “wherein the retinal cell population comprises about 15% to about 45% cone photoreceptor cells” as in instant claim 1 . Claim 16 of ‘315 recites “wherein the stem cells are selected from pluripotent or multipotent stem cells; human, nonhuman primate or rodent nonembryonic stem cells; human, nonhuman primate or rodent embryonic stem cells; human, nonhuman primate or rodent induced pluripotent stem cells; and human, nonhuman primate or rodent recombinant pluripotent cells”, which would anticipate instant claim 20 . Claim 17 of ‘315 recites “A sorted population of in vitro differentiated retinal cells, wherein said in vitro differentiated retinal cells are obtained by a method comprising: a) generating a three-dimensional retinal organoid; b) dissociating the three-dimensional retinal organoid; and c) positively sorting retinal cells based on one or more marker of photoreceptor cell identity and/or negatively sorting retinal cells based on one or more marker of non-photoreceptor cell identity to produce the sorted population of retinal cells”, which would anticipate instant claim 1 . This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented. Response to Arguments On p. 13 of Remarks, Applicant requests that the double patenting rejection of record be held in abeyance until the claims of the instant application or co-pending ‘315 are found to be allowable. In response, double patenting rejections cannot be held in abeyance. Only objections or requirements as to form not necessary for further consideration of the claims may be held in abeyance until allowable subject matter is indicated. Therefore, an application must not be allowed unless the required compliant terminal disclaimer is filed and/or the withdrawal of the nonstatutory double patenting rejection is made of record by the examiner. See MPEP 804.02(IV) for filing terminal disclaimers required to overcome nonstatutory double patenting rejections in applications filed on or after June 8, 1995). Thus, the rejection has been maintained. Conclusion No claim is allowed. 07-40 AIA 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 GILLIAN C REGLAS whose telephone number is (571)270-0320. The examiner can normally be reached M-F 9-5. 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If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /G.R./Examiner, Art Unit 1632 /KARA D JOHNSON/Primary Examiner, Art Unit 1632 s def Application/Control Number: 18/310,048 Page 2 Art Unit: 1632 Application/Control Number: 18/310,048 Page 3 Art Unit: 1632 Application/Control Number: 18/310,048 Page 4 Art Unit: 1632 Application/Control Number: 18/310,048 Page 5 Art Unit: 1632 Application/Control Number: 18/310,048 Page 6 Art Unit: 1632 Application/Control Number: 18/310,048 Page 7 Art Unit: 1632 Application/Control Number: 18/310,048 Page 8 Art Unit: 1632 Application/Control Number: 18/310,048 Page 9 Art Unit: 1632 Application/Control Number: 18/310,048 Page 10 Art Unit: 1632 Application/Control Number: 18/310,048 Page 11 Art Unit: 1632 Application/Control Number: 18/310,048 Page 12 Art Unit: 1632 Application/Control Number: 18/310,048 Page 13 Art Unit: 1632