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 .
Priority
This application claims foreign priority to KR10-2023-0018203, filed 10 February 2023. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Election/Restrictions
Applicant’s election without traverse of Group 1, claims 1-10 in the reply filed on 19 May 2026 is acknowledged.
Claim 11 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 19 May 2026.
Nucleotide and/or Amino Acid Sequence Disclosures
REQUIREMENTS FOR PATENT APPLICATIONS CONTAINING NUCLEOTIDE AND/OR AMINO ACID SEQUENCE DISCLOSURES
Items 1) and 2) provide general guidance related to requirements for sequence disclosures.
37 CFR 1.821(c) requires that patent applications which contain disclosures of nucleotide and/or amino acid sequences that fall within the definitions of 37 CFR 1.821(a) must contain a "Sequence Listing," as a separate part of the disclosure, which presents the nucleotide and/or amino acid sequences and associated information using the symbols and format in accordance with the requirements of 37 CFR 1.821 - 1.825. This "Sequence Listing" part of the disclosure may be submitted:
In accordance with 37 CFR 1.821(c)(1) via the USPTO patent electronic filing system (see Section I.1 of the Legal Framework for Patent Electronic System (https://www.uspto.gov/PatentLegalFramework), hereinafter "Legal Framework") as an ASCII text file, together with an incorporation-by-reference of the material in the ASCII text file in a separate paragraph of the specification as required by 37 CFR 1.823(b)(1) identifying:
the name of the ASCII text file;
ii) the date of creation; and
iii) the size of the ASCII text file in bytes;
In accordance with 37 CFR 1.821(c)(1) on read-only optical disc(s) as permitted by 37 CFR 1.52(e)(1)(ii), labeled according to 37 CFR 1.52(e)(5), with an incorporation-by-reference of the material in the ASCII text file according to 37 CFR 1.52(e)(8) and 37 CFR 1.823(b)(1) in a separate paragraph of the specification identifying:
the name of the ASCII text file;
the date of creation; and
the size of the ASCII text file in bytes;
In accordance with 37 CFR 1.821(c)(2) via the USPTO patent electronic filing system as a PDF file (not recommended); or
In accordance with 37 CFR 1.821(c)(3) on physical sheets of paper (not recommended).
When a “Sequence Listing” has been submitted as a PDF file as in 1(c) above (37 CFR 1.821(c)(2)) or on physical sheets of paper as in 1(d) above (37 CFR 1.821(c)(3)), 37 CFR 1.821(e)(1) requires a computer readable form (CRF) of the “Sequence Listing” in accordance with the requirements of 37 CFR 1.824.
If the "Sequence Listing" required by 37 CFR 1.821(c) is filed via the USPTO patent electronic filing system as a PDF, then 37 CFR 1.821(e)(1)(ii) or 1.821(e)(2)(ii) requires submission of a statement that the "Sequence Listing" content of the PDF copy and the CRF copy (the ASCII text file copy) are identical.
If the "Sequence Listing" required by 37 CFR 1.821(c) is filed on paper or read-only optical disc, then 37 CFR 1.821(e)(1)(ii) or 1.821(e)(2)(ii) requires submission of a statement that the "Sequence Listing" content of the paper or read-only optical disc copy and the CRF are identical.
Specific deficiencies and the required response to this Office Action are as follows:
Specific deficiency – Nucleotide and/or amino acid sequences appearing in the specification are not identified by sequence identifiers in accordance with 37 CFR 1.821(d).
Required response – Applicant must provide:
A substitute specification in compliance with 37 CFR 1.52, 1.121(b)(3) and 1.125 inserting the required sequence identifiers, consisting of:
A copy of the previously-submitted specification, with deletions shown with strikethrough or brackets and insertions shown with underlining (marked-up version);
A copy of the amended specification without markings (clean version); and
A statement that the substitute specification contains no new matter.
Specific deficiency – Nucleotide and/or amino acid sequences appearing in the drawings are not identified by sequence identifiers in accordance with 37 CFR 1.821(d). Sequence identifiers for nucleotide and/or amino acid sequences must appear either in the drawings or in the Brief Description of the Drawings.
Required response – Applicant must provide:
Replacement and annotated drawings in accordance with 37 CFR 1.121(d) inserting the required sequence identifiers;
AND/OR
A substitute specification in compliance with 37 CFR 1.52, 1.121(b)(3) and 1.125 inserting the required sequence identifiers into the Brief Description of the Drawings, consisting of:
A copy of the previously-submitted specification, with deletions shown with strikethrough or brackets and insertions shown with underlining (marked-up version);
A copy of the amended specification without markings (clean version); and
A statement that the substitute specification contains no new matter.
Specific deficiency - This application contains sequence disclosures in accordance with the definitions for nucleotide and/or amino acid sequences set forth in 37 CFR 1.821(a)(1) and (a)(2). However, this application fails to comply with the requirements of 37 CFR 1.821 - 1.825.
The sequence disclosures are located Table 1 of the specification.
Required response – Applicant must provide:
A "Sequence Listing" part of the disclosure, as described above in item 1); as well as
An amendment specifically directing entry of the "Sequence Listing" part of the disclosure into the application in accordance with 1.825(b)(2);
A statement that the "Sequence Listing" includes no new matter in accordance with 1.825(b)(5); and
A statement that indicates support for the amendment in the application, as filed, as required by 37 CFR 1.825(b)(4).
If the "Sequence Listing" part of the disclosure is submitted according to item 1) a) or b) above, Applicant must also provide:
A substitute specification in compliance with 37 CFR 1.52, 1.121(b)(3) and 1.125 inserting the required incorporation-by-reference paragraph, consisting of:
A copy of the previously-submitted specification, with deletions shown with strikethrough or brackets and insertions shown with underlining (marked-up version);
A copy of the amended specification without markings (clean version); and
A statement that the substitute specification contains no new matter;
If the "Sequence Listing" part of the disclosure is submitted according to item 1) b), c), or d) above, Applicant must also provide:
A replacement CRF in accordance with 1.825(b)(6); and
Statement according to item 2) a) or b) above.
Drawings
The drawings are objected to because the figures 3A-C, filed 15 March 2024 and 05 February 2024, contain sequence data with no corresponding SEQ ID NOs. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities: Table 1 of the specification contains sequence data with no corresponding SEQ ID NOs.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
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.
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.
Claims 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Nowotny et al. (Scientific Reports, 11:4086, published 18 February 2021, IDS ref.) in view of Boroda et al. (Marine Environment Research 129 (2017) 316-328) as evidenced by Kalghatgi et al. (Science Translational Medicine, Volume 5, Issue 192, Jul 2013).
Regarding claims 1 and 9, Nowotny teaches methods of culturing primary cells from all tissue of aquatic animals (Abstract). Nowotny teaches antibiotic pretreatment results in less initial contamination in cell cultures (Abstract). Nowotny teaches methods for tissue dissociation and plating of cell cultures to include mechanical dissociation and antibiotic-facilitated with 3% solution comprising Penicillin/Streptomycin/Amphotericin B (PSAb) (p. 3). Nowotny teaches individual anemones (aquatic animals) were treated with 7% MgCl2 in 11ppt seawater then sliced with a scalpel (claim 9) into tissue clumps (isolating tissue), then further dissociated by repeated pipetting using a wide bore 100 μl pipet tip to reduce cell damage (p. 3). Nowotny teaches following dissociation, cell slurries from one whole organism were concentrated into 1 ml and centrifuged three times at 100xg for 3 min, replacing supernatant with Leibovitz’s L-15 media (washing isolated tissue) between each centrifugation (p. 3). This centrifugation and isolation reads as physical sectioning. Nowotny teaches the cell solution was added to culture plates with anemone cell culture media (ACCM), wherein the ACCM was modified to consist of 80% AGM, 20% full strength media (FSM), which comprises L-15 medium, FBS, PSAb (complex antibiotic solution), and HEPES buffer (p. 3). Nowotny teaches Plasmocin® Prophylactic was also added to each well to reduce bacteria growth (p. 3). This step of adding the centrifuged tissues and cells to culture plates reads as culturing the tissues and cells with a solution comprising complex antibiotics. Nowotny teaches the mechanical dissociation yielded clumps of viable diverse cell types that spontaneously dissociated into sheets of individual cells (p. 5).
Nowotny teaches pretreating the animals with a PSAb solution which would reduce microbial contamination, however, Nowotny does not specifically teach disinfecting the isolated tissues. However, this is a routine step in sterile cell culture techniques as discussed by Boroda.
Boroda teaches isolation of cells from solid tissue samples is usually performed as for any other mammalian cells, wherein the complete medium should include both antibiotics and antimycotics for seven to fourteen days (p. 318, Section 2.2). Boroda teaches additives required for cell cultivation depends on the preferences of the scientists and influences on cell proliferation (p. 318, Section 2.2). Boroda teaches to exclude the presence of fungi, bacteria, and mycoplasma, quality contamination tests should be passed before growing the cell biomass and using it in applications (p. 318, Section 2.2). Boroda teaches obtaining sterile tissue samples from live marine mammals (aquatic animals) is almost impossible, thus, once taken, the samples must be briefly rinsed in ethanol and/or submerged into a mixture of concentrated antibiotics and antimycotics (p. 317, Section 2.1). Rinsed in ethanol reads as disinfecting the isolated tissues.
Therefore, it would have been obvious to one of ordinary skill in the art to disinfect the isolated tissues prior to culturing said tissues and cells with a reasonable expectation of success because Nowotny teaches the relatively low amount of early contamination in the cultures may be attributed to the importance of adding antibiotics at higher concentrations, as well as, the extensive rinsing and pre-treatment with antibiotics before dissociation (p. 5). Nowotny teaches antimicrobial methods should be done as to mitigate contamination, without affecting host cell diversity (p. 5). One would be motivated to disinfect the isolated tissues prior to culturing said tissues and cells disinfecting a tissue sample prior to culture is a routine and well-known step used to reduce culture contamination as discussed by Boroda.
Regarding claim 2, Nowotny does not teach wherein the complex antibiotics comprise penicillin/streptomycin, amphotericin B, gentamycin, kanamycin, ampicillin, and tetracyclin.
However, it would have been obvious to one of ordinary skill in the art to include all of the antibiotics in the complex antibiotic solution with a reasonable expectation of success because Boroda teaches the commonly used antibiotics are penicillin, streptomycin, gentamycin, and neomycin; and Primocin™, amphotericin B or nystatin is added to prevent fungal growth (p. 317, Section 2.1). Boroda teaches the types of antibiotics and antimycotics, their concentrations, and the incubation times should be determined based on the individual animal species and the sterility of the biopsy to be conducted (p. 317, Section 2.1). One would be motivated to include penicillin/streptomycin, amphotericin B, gentamycin, kanamycin, ampicillin, and tetracyclin in the complex antibiotic solution because Boroda teaches the mixture, which is a prepared on a nutrient medium or in a buffer, should contain at least two antibiotics to efficiently suppress bacterial contamination in the event there are microorganisms present that are resistant to one of them (p. 317, Section 2.1). Thus, including multiple types of antibiotics would increase the probability of reducing the number of microbes and arriving at a cell culture without microbial contamination, absent evidence to the contrary.
Additionally, all of these antibiotics were well-known in the art and the three antibiotics not discussed in the references, kanamycin, ampicillin, and tetracyclin, are known antibiotics utilized in cell culture as evidenced by Kalghatgi (Fig. 1 and p. 8, section Cell culture and antibiotic treatments). MPEP 2144.06 states "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). MPEP 2144.07 states the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Regarding claim 3-4 and 6, in another embodiment, Nowotny teaches antibiotic-facilitated dissociation of coral embryos (aquatic animals) to cause expulsion of coral tissue from the adult skeleton (p. 3). Nowotny teaches the coral fragments were submerged in an antibiotic solution comprising PSAb, Plasmocin Prophylactic and gentamicin in filtered sea water in culture plates (p. 3). Coral fragments reads as isolating tissue from an aquatic animal and submerging the fragments in a solution comprising antibiotics and sea water reads as washing and disinfecting the isolated tissues. Nowotny teaches after following the antibiotic-facilitated dissociation, cells and the remaining skeletal fragments were plated in coral cell culture media (CCCM) that consisted of 20% FSM, 80% full strength filtered sea water with gentamicin (CGM) (p. 3). This step reads as a second culture comprising one antibiotic, gentamicin (claims 3 and 4). The sea water in the second culture step of Nowotny reads as the single antibiotic solution comprises sea salt (claim 6). Nowotny teaches after 5 days, the skeleton fragments were removed from culture and the cultures were further supplemented with PSAb and Plasmocin Prophylactic (p. 3).
Regarding claim 5, Nowotny teaches growth and viability of the cultured cells from the aquatic animals for 14 days (Fig. 2e and f) but does not specify the timing of the first and second culture.
However, Boroda teaches the complete medium should include both antibiotics and antimycotics for seven to fourteen days and notes additives to the culture media depends on the preferences of the scientist (p. 318, Section 2.2). Boroda teaches to exclude the presence of fungi, bacteria, and mycoplasma, quality contamination tests should be passed before growing the cell biomass and using it in applications (p. 318, Section 2.2), which suggests the first stage of culture would fall within this seven to fourteen days of the first culture period in order to reduce to possibility of microbial contamination.
It is noted that none of the references specifically teach wherein the first culture is cultured for a period of 10 to 20 days, and the second culture is cultured for a period of 5 days or more and 15 days or less. However, the timing of the first and second culture would have been readily optimizable by one having ordinary skill in the art by routine experimentation in order to achieve the desired cultured cells. Where 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. See MPEP 2144.05.
MPEP 2144.05 (I) states, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See also In re Bergen, 120 F.2d 329, 332, 49 USPQ 749, 751-52 (CCPA 1941) (The court found that the overlapping endpoint of the prior art and claimed range was sufficient to support an obviousness rejection, particularly when there was no showing of criticality of the claimed range).
Regarding claim 7, Nowotny teaches the AGM media contains 11 ppt saltwater and gentamicin (p. 2). This reads as the salt concentration is greater than 0 ppt and less than 30 ppt.
Regarding claim 8, Nowotny does not teach disinfecting with ethanol for one minute or less. However, Boroda teaches obtaining sterile tissue samples from live marine mammals (aquatic animals) is almost impossible, thus, once taken, the samples must be briefly rinsed in ethanol and/or submerged into a mixture of concentrated antibiotics and antimycotics (p. 317, Section 2.1). While Boroda does not specify an exact time, it is reasonable to expect the time to be one minute or less when the exposure to ethanol is said to be brief.
Regarding claim 10, Nowotny teaches the animals were prepared for experimentation at room temperature, which is considered 20-25°C. Since Nowotny does not specify temperature parameters for the cell culture portion of the method, it is presumed to be conducted at the same temperature as the animal preparation. Thus, since 20-25°C falls in the range of 10-30°C, this reads on the limitations of the claims.
Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill before the effective filing date of the claimed invention.
Relevant prior art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Guehenneux et al. (CN101668539B, published 19 February 2014)
Guehenneux teaches the use of duck cell lines derived from embryonic stem cells free of avian endogenous retroviruses for the production of viral vectors and viruses. Guehenneux teaches the cell culture medium may contain antibiotics such as gentamicin, penicillin and
streptomycin to prevent bacterial contamination. Guehenneux teaches ducks, geese, swans, and the like are suitable for aquatic survival, which reads as aquatic animals.
Nauwynck et al. (WO2023/144061A1, filed 23 January 2023)
Nauwynck teaches cell culture medium which sustains the growth of cells obtained from a crustacean in vitro. Nauwynck teaches a cell culture medium as described above which further comprises at least one of the following compounds: penicillin, streptomycin, gentamicin, amphotericin B. Nauwynck teaches penicillin, streptomycin, gentamicin and amphotericin B are well-known antibiotics.
Conclusion
No claims are allowed.
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/N.A.H./Examiner, Art Unit 1631
/LAURA SCHUBERG/Primary Examiner, Art Unit 1631
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