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
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office Action has been withdrawn pursuant to 37 CFR 1.114. Applicant’s submission filed on May 26, 2026 has been entered.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Status of Claims
Claims 1, 2, 4, 5, 7, 9-26 and 46-48 are currently pending. Claims 1, 7, 11 and 48 have been amended by Applicants’ amendment filed 05-26-2026. No claims have been added or canceled by Applicants’ amendment filed 05-26-2026.
Applicant's election of Group I, claims 1-13, directed to a method for selecting one or more human hematopoietic stem/progenitor cells from within a heterogenous population of lin- HSPCs; and the election of Species of:
Species (A): wherein the method of claim 1 further comprising the step of selecting for CD34+ cells (claim 3); and
Species (B): wherein the selecting for the one or more of sLeXhigh cells comprises selecting for cells having the highest 10% of sLeX expression level within the heterogenous population (claim 11); in the reply filed September 24, 2024 was previously acknowledged.
Claims 14-26, 46 and 48 were previously withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a non-elected invention, there being no allowable generic or linking claim.
Claims 2, 5, 6, 10, 12, 13 and 47 were previously withdrawn, and claim 4 is newly withdrawn, from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a non-elected species, there being no allowable generic or linking claim.
Although Applicant indicated that the election was made with traverse, Applicant failed to provide any argument or remarks with regard to a traversal. Thus, because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election of invention has been treated as an election without traverse (MPEP § 818.03(a)).
Response to Arguments
Applicant’s arguments filed May 26, 2026 have been fully considered and are not found persuasive. Applicants essentially assert that: (a) Applicant traverses the withdrawal of claims 47 and 48 because the process of selecting by FACS and selecting the highest 10% of cells are simply methods that can be used to select for sLexhigh, thus, claims 47 and 48 do not increase the Examiner’s search burden (Applicant Remarks, pg. 8, Status of Claims).
Regarding (a), as noted in the Office Action mailed 01-23-2026, instant claim 48 is directed to an invention that is independent and/or distinct from the invention originally claimed, and as originally elected. Instant claim 48 was withdrawn from consideration as being directed to a non-elected invention. Regarding claim 47, the initial election of species was treated as an election without traverse. Additionally, in the response filed 09-24-2024 Applicant elected Species (B), wherein selecting comprises selecting for cells having the highest 10% of sLeX expression level within the heterogenous population (claim 11). Claim 47 recites that selecting comprises FACS, such that claim 47 was withdrawn from further consideration as being directed to a non-elected species. Thus, the restriction is proper.
Please Note: in the reply filed September 24, 2024, Applicant elected for Species (A), the method of claim 1 further comprising the step of selecting for CD34+ cells (claim 3). Claim 4 is directed to the method of claim 1 further comprising selecting for one or more CD38- cells, such that claim 4 is directed to a non-elected Species.
The restriction requirement was deemed proper and was made FINAL.
The claims will be examined insofar as they read on the elected species.
Therefore, claims 1, 7 and 11 are under consideration to which the following grounds of rejection are applicable.
Declaration
The Examiner acknowledges receipt of an executed Declaration under 37 C.F.R. § 1.132 signed by Joseph Lau on May 26, 2026 (hereinafter the “Lau decl.”); and filed on May 26, 2026.
The Lau decl. has been considered by the Examiner.
Priority
The instant application filed February 29, 2024 is a CON of PCT/US2024/011599, filed January 16, 2024 (now abandoned), which claims priority to US Provisional Patent Application 63479853, filed
January 13, 2023.
Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of the first paragraph of 35 U.S.C. 112. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application 63/479,853, filed January 13, 2023, fails to provide adequate support or enablement in the manner provided by the first paragraph of 35 U.S.C. 112 for one or more claims of this application. The specific method steps recited in independent claim 1 does not have support for; “one or more human hematopoietic stem cells (HSCs) from within a heterogenous population of CD34+ human hematopoietic stem/progenitor cells (HSPCs) that have not been modified ex vivo”; “contacting the heterogenous population of CD34+ human HSPCs that have not been modified ex vivo”; “measuring an amount of sLeX expressed on individual cells within the heterogenous population of CD34+ human HSPCs that have not been modified ex vivo of (1)”; “one or more sLeXhigh cells have the highest 15% sLeX expression level within the heterogenous population of CD34+ human HSPCs that have not been modified ex vivo”; and “thereby selecting the one or more human HSCs”. Therefore, the priority date for the presently claimed invention is January 16, 2024, the filing date of International Application WO2024152043, filed January 16, 2024.
Applicants are invited to specifically indicate the location of the cited phrases pertinent to claim 1 of the instant application.
Response to Arguments
Applicant’s arguments filed May 26, 2026 have been fully considered and are not found persuasive. Applicants essentially assert that: (a) support for claim 1 is found in at least the examples disclosed in the provisional application (Applicant Remarks, pg. 8, Priority).
Regarding (a), Applicant did not specifically point out where the specific method steps can be found in the Examples disclosed in the provisional application. The Examiner respectfully requests that Applicant specifically point to the page, paragraph, and lines where support can be found in US Provisional Patent Application 63/479,853 for each of the limitations as recited in claim 1. The priority date for the presently claimed invention remains January 16, 2024.
Withdrawn Objections/Rejections
Applicants’ amendment and arguments filed May 26, 2026 are acknowledged and have been fully considered. The Examiner has re-weighed all the evidence of record. Any rejection and/or
objection not specifically addressed below are herein withdrawn.
Claim Rejections - 35 USC § 102
The rejection of claims 1, 7 and 11 is withdrawn under 35 U.S.C. 102(a1)/102(a2) as being anticipated by Sackstein et. al. (hereinafter “Sackstein”) (US Patent Application Publication 20200281985, published September 10, 2020) as evidenced by Wognum, Bert (hereinafter “Wognum”) (StemCell Technologies, 2024, 1-12).
Sackstein is directed to cells that have been ex vivo modified.
In view of the withdrawn rejection, Applicant’s arguments are rendered moot.
Claim Rejections - 35 USC § 103
The rejection of claims 1, 7 and 11 is withdrawn under 35 U.S.C. 103 as being unpatentable over Laine et. al. (hereinafter “Laine”) (US Patent Application No. 20120190058, published July 26, 2012; of record) in view of Miller et. al. (hereinafter “Miller”) (US Patent Application No. 2011091434, published April 21, 2011; of record) as evidenced by Carrascal et al. (hereinafter “Carrascal”) (BBA – General Subjects, 2018, 1862, 2069-2080; of record); and Murtadha et al. (hereinafter “Murtadha”) (bioRxiv, 2023, 1-32; of record) and Pang et al. (hereinafter “Pang”) (PNAS, 2011, 108(50), 20012-20017).
The combined references of Laine and Miller do not provide the most effective references based on the amendments to the claims filed 05-26-2026.
In view of the withdrawn rejection, Applicant’s arguments are rendered moot.
Maintained Objections/Rejections
Claim Rejections - 35 USC § 112(b)
The rejection of claims 1, 7 and 11 are maintained under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
Claims 1, 7 and 11 are indefinite for the recitation of the term “that have not been modified ex vivo” such as recited in claim 1, lines 4-5 because it is unclear and confusing as to the meaning of the term including whether claim 1 recites that the heterogenous population of HSPCs that have not been modified ex vivo with a binding molecule for sLeX; whether a population of HSPCs that have not been modified ex vivo, are contacted with a binding molecule for sLeX; whether the term refers to steps of the method that occur in vivo; whether the term refers to cells have not been cultured/expanded; whether the HSPCs have not been modified to comprise additional surface glycans, ligands, fluorescent tags, etc.; or whether the term refers to something else and, thus, the metes and bounds of the claim cannot be determined.
Claims 1 and 11 are indefinite for the recitation of the term “the level” such as recited in claim 1, line 9. There is insufficient antecedent basis for the term “the level” in the claim. The Examiner suggests that Applicant amend the claim to recite, for example, “based on a level of sLeX expression.”
Claim 1 is indefinite for the recitation of the term “the one or more sLeXhigh cells” such as recited in claim 1, line 11. There is insufficient antecedent basis for the term “the one or more sLeXhigh cells” in the claim because claim 1, line 9 recites the term “one or more of CD34+ sLeXhigh cells.”
Claims 1 and 11 are indefinite for the recitation of the term “measuring an amount of sLeX expressed…selecting for one or more CD34+ sLeXhigh cells based on the level of sLeX expression…that have not been modified ex vivo” such as recited in claims 6-13 because it is unclear how the level of expression is detected and/or determined if the heterogenous population of CD34+ human HSPCs have not been modified ex vivo. It appears from the as-filed Specification and instant claims that in order to “measure” and “select” sLeX expression in cells, the cells must first be ex vivo modified, such as by tagging, labeling, contacting the heterogenous population of CD34+ human HSPCs with a binding molecule (e.g., claim 1, lines 4-5); contacting with mAbs; producing mAb-fluorochrome conjugates, fluorochrome staining, etc. and, thus, the metes and bounds of the claim cannot be determined.
Claims 1 and 11 are indefinite for the recitation of the term “the highest” such as recited in claim 1, line 11. There is insufficient antecedent basis for the term “the highest” in the claim.
Claim 1 is indefinite for the recitation of the term “thereby selecting for the one or more human HSCs” such as recited in claim 1, line 13 because it is completely unclear how a step of ‘selecting for one or more CD34+ sLeXhigh cells based on sLeX expression in CD34+ human HSPCs’ results in selecting for human HSCs and, thus, the metes and bounds of the claim cannot be determined.
Claim Rejections - 35 USC § 102
The rejection of claims 1, 7 and 11 is maintained under 35 U.S.C. 102(a1)/102(a2) as being anticipated by Karakantza et. al. (hereinafter “Karakantza”) (British Journal of Haematology, 1994, 86, 883-886).
Regarding claims 1, 7 and 11, Karakantza teaches an investigation into sialylated Lewis x (sLeX) antigen expression on CD34 positive (CD34+) haemopoietic progenitors in the bone marrow of eight healthy volunteers using monoclonal antibodies, wherein CD34+ bone marrow progenitors strongly expressed the sLeX antigen (interpreting bone marrow progenitors as HSPCs; CD34+; sLeX; contacting CD34+ HSPCs with a binding molecule; measuring the expression of sLeX; highly expressing CD34+ sLeX including highest 10-15%; bone marrow; and humans, claims 1, 7 and 11) (Abstract, Summary). Karakantza teaches that scattergrams were generated by combining right-angle light scatter with fluorescence and regions drawn around clear-cut positive populations (CD34+ or sLex+), wherein the frequencies of CD34+ and sLex+ populations in the entire nucleated populations were obtained by subtracting the percentage of cells in the regions of the negative controls from those in the regions stained with both anti-CD34 and anti-sLeX, such that a logical gate was then defined to quantitate cells satisfying both CD34+ and sLex+ regions (CD34+/sLeX+) as shown in Figure 1 (interpreted as sLeXhigh and expressing CD34+ sLeX including highest 10-15% sLeX expression level, claim 1) (pg. 883, col 2, third full paragraph; and pg. 884, Figure 1). Karakantza teaches a two-color fluorescence was also performed using anti-CD34 and anti-CD15 to confirm the specificity of anti-sLeX binding to CD34+ cells (Fig 2) (interpreted as contacting CD34+ HSPCs with a binding molecule; measuring the expression of sLeX; and interpreting CD34- to select for lineage negative, claims 1, 7, 8 and 11) (pg. 883, last full paragraph; and pg. 884, Figure 2). Figures 1 and 2 are shown below:
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Figure 1
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Figure 2
Karakantza teaches that the results are summarized in Table 1, wherein the percentage of CD34+ cells in the mononuclear population of the bone marrows studied ranged from 0.49% to 1.66% (mean 1.03%), such that the percentage of double-stained CD34+/sLex+ cells in the mononuclear population ranged from 0.34% to 1.36% (mean 0.9%); and the percentage of CD34+ cells that were also sLeX+ ranged from 65% to 100% (mean 87%), where Table 1 is shown below:
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(interpreted as sLeXhigh and expressing CD34+ sLeX including selecting for the highest 10-15% sLeX expression level, claim 1) (pg. 886, col 1, first full paragraph; and Table 1).
Karakantza meets all the limitations of the claims and, therefore, anticipates the claimed invention.
Response to Arguments
Applicant’s arguments filed May 26, 2026 have been fully considered and are not found persuasive. Applicants essentially assert that: (a) as explained by Dr. Lau, Karakantza's data merely report the proportion of CD34+ cells that co-express sLeX at any detectable level, wherein the data merely report the proportion of CD34+ cells that co express sLeX at any detectable level; Karakantza does not stratify sLeX-positive cells by expression intensity or select a subset based on having the highest expression levels. Lau Declaration, para 31- 32 (Applicant Remarks, pgs. 10-11, Karakantza).
Regarding (a), although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26USPQ2d 1057 (Fed. Cir. 1993). As noted in MPEP 2112.01(I),
where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Examples of claim language, although not exhaustive, that may raise a question as to the limiting effect of the language in a claim are: (A) "adapted to" or "adapted for" clauses; (B) "wherein" clauses; and (C) "whereby" clauses. As noted in MPEP 2111.04(I),
the determination of whether each of these clauses is a limitation in a claim depends on the specific facts of the case. See, e.g., Griffin v. Bertina, 285 F.3d 1029, 1034, 62 USPQ2d 1431 (Fed. Cir. 2002) (finding that a "wherein" clause limited a process claim where the clause gave "meaning and purpose to the manipulative steps"). In In re Giannelli, 739 F.3d 1375, 1378, 109 USPQ2d 1333, 1336 (Fed. Cir. 2014), the court found that an "adapted to" clause limited a machine claim where "the written description makes clear that 'adapted to,' as used in the [patent] application, has a narrower meaning, viz., that the claimed machine is designed or constructed to be used as a rowing machine whereby a pulling force is exerted on the handles." In Hoffer v. Microsoft Corp., 405 F.3d 1326, 1329, 74 USPQ2d 1481, 1483 (Fed. Cir. 2005), the court held that when a "‘whereby’ clause states a condition that is material to patentability, it cannot be ignored in order to change the substance of the invention." Id. However, the court noted that a "‘whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.’" Id. (quoting Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381, 67 USPQ2d 1614, 1620 (Fed. Cir. 2003)).
Applicant’s assertion (in conjunction with the Lau decl.) that Karakantza does not stratify sLeX-positive cells by expression intensity or select a subset based on having the highest expression levels, is not found persuasive. It is noted that instant claim 1 is very broadly recited such that no specific methods of contacting, measuring, and/or selecting the cells having the highest 15% sLeX expression is recited in instant claim 1. Additionally, the claims do not require that the cells expressing the highest 15% sLeX be isolated. Moreover, the as-filed Specification teaches that:
As used herein the terms "selecting," "collecting," "enriching," "separating," and "sorting" of cells refers to an operation that segregates cells into groups according to a specified criterion (including but not limited to, differential staining and marker expression) as would be known to a person skilled in the art such as, for example, sorting using FACS. Any number of methods to differentiate the specified criterion may be used, including, but not limited to the use of anti-marker antibodies together with a wide variety of reporter fluorochrome dyes, either as using direct mAb-fluorochrome conjugates or in a two-step process by which molecules (e.g., anti-Ab secondary antibodies, protein G, etc) that are conjugated to fluorochromes can be used to stain cells that bear (unconjugated) anti-marker mAbs (underline added) (paragraph [0048], lines 1-10).
Although the Lau decl. states that there are many methods to accomplish selection (e.g., FACS, flow cytometry, sorting, etc.) (pg. 8, #23), none of these methods are recited in instant claim 1. The method taught by Karakantza, the use of two-color fluorescence using double-stained for anti-CD34 and andti-CD-15, is clearly a method of selecting, which is supported by the teachings in the as-filed Specification.
Addressing the Lau decl. regarding unexpected results including that "[i]t has been surprisingly discovered that that high sLeX expression is characteristic of human HSCs, and, more specifically, that, among human CD34+CD38- HSCs, the marker combination consisting of CD90+, CD45RA-, and CD49f+ can altogether by supplanted by high sLeX expression." Pending Specification, paragraph [0056] (pg. 14, #33), it is noted that these limitations including the marker combinations, the supplanting of marker combinations by high sLeX expression, etc. are not recited in instant claim 1. Additionally, as provided in MPEP 2111.04(I), the “thereby” clause as recited in instant claim 1 was not given patentable weight because it simply expresses the intended result of a process step positively recited. Furthermore, the Lau decl. clearly states:
Karakantza provides data that the fraction of CD34+ cells that express sLeX (i.e., CD34+/sLeX+ "double-stained cells") ranges from 0.34% to 1.36%; data of the pending application (see Figure 1) shows unequivocally that, depending on the maturation level of distinct subsets of CD34+ HSPCs, the level of sLeX expression varies widely from a low-level to an intermediate-level to a high-level: e.g., the MFI of granulocyte (pgs. 9-10, #23).
Thus, the Lau decl. supports that Karakantza provides data that one or more cells have the highest 10-15% sLeX expression. Karakantza also teaches the frequencies of CD34+ and sLeX+ populations in the entire nucleated populations; and performing two-color fluorescence using anti-CD34 and anti-CD15 to confirm the specificity of anti-sLeX binding to CD34+ cells as shown in Figure 2 (interpreted as contacting CD34+ HSPCs with a binding molecule; measuring the expression of sLeX, and selecting cells having the highest 10-15% sLeX expression) (See; pg. 883, third and fourth full paragraphs; pg. 884, Figure 1; and pg. 885, Figure 2). Figures 1 & 2 illustrate the response of all cells to 2-color fluorescence, such that all cells expressing sLeX included those cells that have the highest 15% of sLeX expression. Once again, the as-filed Specification clearly teaches that methods of selecting are known to a person skilled in the art including, the use of anti-Ab secondary antibodies and direct mAb-fluorochrome conjugates. Karakantza teaches all of the limitations of the claims. Thus, the claims remain rejected.
New Objections/Rejections
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
(2) Claims 1, 7 and 11 are rejected under 35 U.S.C. 102(a1)/102(a2) as being anticipated by Bissels et. al. (hereinafter “Bissels”) (US Patent Application Publication 20220276247, published September 1, 2022; International Application WO2021013669, filed July 16, 2020; and effective filing date EP 19188003.8, July 24, 2019).
Regarding claims 1 and 11, Bissels teaches a method for detecting differentiated hematopoietic cells comprising the steps: (a) isolation of undifferentiated hematopoietic stem cells in groups of 1-1000 cells on a support; (b) proliferating the isolated cells to form cell colonies of differentiated hematopoietic cells by providing cell media comprising a growth factor; (c) contacting the cell colonies with one or more marker conjugates comprising at least one detection moiety and at least one antigen recognizing moiety against CD14, CD235a and CD15; and (d) detecting the relative amount of differentiated hematopoietic stem cells in a cell colony labelled with the marker conjugates (interpreted as a heterogenous population of CD34+ HSPCs; interpreting CD15 as sLeX; contacting HSPCs that have not been modified ex vivo with a binding molecule for sLeX; measuring an amount of sLeX expressed; and selecting one or more human HSCs, claim 1) (Abstract). Bissels teaches that after an incubation of approximately 14 days, the 35 mm dish will contain many different colonies, each colony deriving, in theory at least, from a single CD34+ cell making possible subsequent measurements of the percentage of CD34+ able to form colonies and of the type of the colony, such that colonies derived from different types of progenitor cells are classified and counted based on the number and types of mature cells they contain using morphological and phenotypic criteria after observation using an inverted microscope (interpreted as CD34+ human HSPCs, claim 1) (paragraph [0003]). Bissels teaches that another object of the invention is a marker cocktail comprising one more marker conjugates each comprising at least one detection moiety and at least one antigen recognizing moiety against CD14, CD235a and CD15 (interpreted as a binding molecule for sLeX, claim 1) (paragraph [0015]). Bissels teaches that the process of the invention allows for the detection or identification of colony forming cells and optionally the discrimination of colonies derived from those cells, especially hematopoietic stem cells (HSCs) (interpreted as selecting human HSCs, claim 1) (paragraph [0030]). Bissels teaches that Figure 9 shows CFU-GM characterization, wherein a colony can be characterized as CFU-GM when it expresses more than 30% CD15 positive cells (interpreted as selecting for sLeXhigh cells that have the highest 15% or 10% sLeX expression levels, claims 1 and 11) (paragraph [0027]; and Figure 9). Bissel teaches in Table 3, colony detection parameters (paragraph [0035], wherein Table 3 is shown below:
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Bissels teaches enriching CD34+ cells from the cell sample comprising undifferentiated hematopoietic stem cells is performed to a purity of at least 50%, more preferred to a purity of at least 90%, wherein the enriching process comprises magnetic cell sorting or flow cytometric analyzer (interpreted as a heterogenous population of CD34+ human HSPCs; and selecting for one or more CD34+sLeXhigh cells, claim 1) (paragraph [0039]). Bissel teaches that when over 50% of the total events are CD15-APC positive, the colony is a CFU-G, which expresses CD15 in more than 50% of the cells (interpreted as encompassing the highest 10-15% expression level of sLeX, claims 1 and 11) (paragraph [0103]). Bissels teaches that the cumulative results of a total of 6 experiments are also illustrated in Table 2 and showed that 96-well data is comparable to 35 mm dish data, wherein the p-value was higher than 0.05 (two tailed t-test) for all measurements, suggesting immunofluorescent staining with the HSC-CFU antibody cocktail and subsequent data analysis (paragraph [0093]). Bissels teaches that CD34+ cells from buffy coat were cultured in HSC-CFU assay medium for 14 days, stained with HSC-CFU antibody cocktail as described above and analyzed on a MACSQuant Analyzer 10; and that all single cells were displayed in two new plots: for the first one (Figure 5c) adjust the y-axis to CD15-APC and x-axis to CD235a-PE; and for the second one (Figure 5d), adjust the y-axis to CD15-APC and x-axis to CD14 VioBlue, wherein set a quadrant parting the populations as shown (Figures 5c and 5d) (interpreted as individual cells, claim 1) (paragraphs [0094]; and [0098]).
Regarding claim 7, Bissels teaches that hematopoietic colony-forming assays can be performed using mononuclear cells from bone marrow, cord blood, or peripheral blood, such that enriched hematopoietic stem and progenitor cells, e.g. enriched lineage marker negative (Lin-), CD133+, or CD34+ cells, or ES and iPS cell-derived progenitors can be used (interpreted as being from bone marrow, cord blood, etc., claim 7) (paragraph [0066]).
Bissel meets all the limitations of the claims and, therefore, anticipates the claimed invention.
(3) Claims 1, 7 and 11 are rejected under 35 U.S.C. 102(a1)/102(a2) as being anticipated by Cohen et. al. (hereinafter “Cohen”) (Breast Cancer Research and Treatment, 2019, 176, 545-556).
Regarding claims 1, 7 and 11, Cohen teaches measuring sLeX and a panel of cytokines/chemokines in the sera of 26 non-invasive ductal carcinoma in situ (DCIS), 154 invasive non-metastatic breast cancer (non-MBC), 63 metastatic breast cancer (MBC) patients, and 43 healthy controls, wherein differences in sLeX and inflammatory cytokines among and between patient groups and healthy controls were assessed with non-parametric tests and we performed survival analysis for the prognostic potential of sLeX using a cut-off of 8 U/mL as previously defined, wherein median serum sLeX was significantly higher than controls for invasive breast cancer patients (MBC and non-MBC) but not DCIS, such that in univariate analysis, we confirmed patients with serum sLeX > 8 U/mL have a significantly shorter progression-free survival (PFS) (P = 0.0074) and overall survival (OS (P = 0.0003); and patients with high serum MCP-1 and IP-10 had shorter OS (P = 0.001 and P < 0.001, respectively) and PFS (P = 0.010 and P < 0.001, respectively), such that sLeX, MCP-1 and IP-10 remained significant in multivariate survival analysis (interpreted as a heterogenous population of CD34+ HSPCs that have not been modified ex vivo; and interpreting sLeXhigh >8 U/mL as selecting the 10-15% highest sLeX expression level, claims 1 and 11) (Abstract, Methods and Results). Cohen teaches that Sialyl Lewis X (sLeX) is a mucin-associated carbohydrate ligand on cancer cells that binds to its receptor E-selectin on endothelial cells to mediate adhesion between the cancer cells and the endothelium (interpreted as contacting a binding molecule for sLeX, claim 1) (pg. 545, col 2, first partial paragraph, lines 3-7). Cohen teaches that surface expression of sLeX on cancer cells mediates their tethering and rolling along vascular endothelium expressing E-selectin, thereby facilitating migration and dissemination of cancer cells, potentially leading to metastasis, such that aberrant expression of sLeX is associated with tumor formation and metastasis, and the level of sLeX was found to be elevated in the serum of patients with metastatic breast cancers (MBC) and correlated with metastasis (interpreting cancer cells including heterotypic and homotypic cancer cells as originating in bone marrow, endothelium, and/or as post-natal blood; and sLeX expression, claims 1 and 7) (pg. 545, col 2, first partial paragraph, lines 9-16). Cohen teaches that using immunoassay (CSLEX), serum sLex is measured, where it has it has been reported that the level is associated with clinical stage and response to treatment of breast cancer, such that using a cut-off of 8 U/mL for sLeX, serum sLeX in combination with CA15-3 (Cancer Antigen-Breast) was found to be more useful than carcinoembryonic antigen (CEA) and tumor marker CA15-3 combined in monitoring breast cancer patients; and that high expression of sLeX in ER-positive tumors is correlated with metastasis to the bone where the sLeX receptor, E-selectin, is constitutively expressed (interpreted as contacting with a binding molecule for sLeX; interpreting cancer cells to originate in bone marrow; measuring an amount of sLeX expressed on individual cells; and selecting sLeXhigh or highest 10-15% expression, claims 1, 7 and 11) (pg. 546, col 1, first full paragraph). Cohen teaches that a panel of 39 inflammatory proteins, wherein the primary aims were to compare differential serum levels of sLeX in patients with non-invasive ductal carcinoma in situ (DCIS), metastatic (MBC) and non-metastatic breast cancer (non-MBC) as well as healthy donors (HD) with the hypothesis that higher serum sLeX would correlate with higher disease stage, and second to confirm previous publications that serum sLex > 8U/mL is correlated with decreased survival (interpreted as selecting sLeXhigh or highest 10-15% expression, claims 1 and 11) (pg. 546, col 1, first full paragraph). Cohen teaches that sera from 243 patients (26 with DCIS, 154 with non-MBC, 63 with MBC), and 43 HD were assayed for sLeX using a two-step sandwich enzyme immunoassay method, wherein 20 μL of sera were incubated in a 96-well plate coated with anti-sLeX monoclonal antibody in a buffer solution for 2 h at 37 °C to enable the capture of sLeX, then a secondary antibody was added to the antibody-sLeX complex in buffer solution to form a sandwich complex of antibody–antigen–antibody and incubated (interpreted as contacting with a binding molecule for sLeX; measuring an amount of sLeX expressed on individual cells; and selecting sLeXhigh or highest 10-15% expression, claims 1 and 11) (pg. 546, col 2, last full paragraph). Cohen teaches that a predetermined cut-point of 8 U/mL was used for sLeX, and for cytokines, a cutoff was established at the 95th percentile of the mean of health donors (interpreted as selecting sLeXhigh or highest 10-15% expression, claims 1 and 11) (pg. 547, col 1, first full paragraph). Cohen teaches that compared with the median serum sLeX level in HD (1.6 U/mL), the median serum levels of sLeX of DCIS (2.3 U/mL), non-MBC (3.0 U/mL), and MBC (4.0 U/mL) were significantly higher (all P < 0.05) (Figure 1), wherein the 95th percentile of HD in the current study’s cohort was 9.2 U/mL, confirming 8.0 U/mL as a reasonable cut off; and although not significant, patients with MBC were more likely than those with non-MBC to have serum sLeX levels above 8.0 U/mL (33.3% vs. 20.8%, P = 0.08) (interpreted as selecting sLeXhigh or highest 10-15% expression, claims 1 and 11) (pg. 547, col 2, first full paragraph). Cohen teaches that Table 2 shows the clinical stages and sLeX distribution (pg. 548, col 1, Table 1). Table 2 is shown below:
PNG
media_image11.png
72
466
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Greyscale
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media_image11.png
72
466
media_image11.png
Greyscale
PNG
media_image12.png
260
466
media_image12.png
Greyscale
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media_image13.png
238
468
media_image13.png
Greyscale
Cohen teaches that in tumors, E-selectin plays a pivotal role in recruiting leukocytes to the tumor microenvironment where immune-specific tumor lysis can trigger a storm of inflammatory cytokines inducing the over-expression of E selectin on endothelial cells of blood vessels, wherein sLeX on the tumor cells interacts with E-selectin on endothelial cells to initiate motility by causing tumor cells to roll on the endothelium (interpreting leukocytes to originate in bone marrow; endothelial cells to originate in endothelium, or as post-natal blood, claim 7) (pg. 546, col 1, second full paragraph).
Cohen meets all the limitations of the claims and, therefore, anticipates the claimed invention.
Conclusion
Claims 1, 7 and 11 are rejected.
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/AMY M BUNKER/Primary Examiner, Art Unit 1684
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