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
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Based on the filing receipt, the effective filing date of this application is August 30,
2021 which is the filing date of Foreign Application Number SINGAPORE 10202109489Y from
which the benefit of priority is claimed.
Information Disclosure Statement
The information disclosure statements (IDS) filed 10/06/2025, 07/08/2025, 05/06/2024, and 02/12/2024 have been considered.
Status of Claims
Claims 1-20 are pending and examined herein.
Claim Interpretation
Claim 5 recites, “wherein the method further comprises detecting and determining a cell to be a macrophage in the sample by detecting the expression of Clec4f, Lyz2, Vsig4, Csf1r, Adgre1, F4/80, Tim4, Clec4F, and Vsig4”. The claim is interpreted to mean the expression of all 9 markers is detected and determined.
Claim Objections
Claims 3, 5, 9, 12-14, 16-17, and 20 is objected to because of the following informalities:
Claim 3 recites, “The method of claim 1, wherein method further comprises”. The claim should recite, “The method of claim 1, wherein the method further comprises”.
Claim 5 recites, “Clec4f, Lyz2, Vsig4, Csf1r, Adgre1, F4/80, Tim4, Clec4F, and Vsig4”. The claim should recite, “Clec4f, Lyz2, Vsig4, Csf1r, Adgre1,
Claim 9 recites, “one or more marker”. The claim should recite, “one or more markers”.
Claim 12 recites, “CD45, CD64, F4/80, TIM4, Clec4F, Adgre1 (F4/80), Timd4, Csf1r, and Clec4f”. The claim should recite, “CD45, CD64, F4/80, TIM4, Clec4F, and Csf1r
Claims 13-14 recite, “providing an agent”. The claims should recite, “
Claim 14 recites, “provides an agent”. The claim should recite, “comprises
Claim 16-17 and 20 recite, “wherein the method reduces a CD206hi and ESAM+ macrophage, optionally the method reduces a Cdh5+, CD206hi, and ESAM+ Kupffer cell”. The claim should recite, “wherein the method reduces a population of CD206hi and ESAM+ macrophage, optionally the method reduces a population of Cdh5+, CD206hi, and ESAM+ Kupffer cells”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 13-14 and 19 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 claims contain 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 inventors, at the time the application was filed, had possession of the claimed invention.
The MPEP states that the purpose of the written description requirement is to ensure that the inventor had possession, as of the filing date of the application, of the specific subject matter later claimed. The MPEP lists factors that can be used to determine if sufficient evidence of possession has been furnished in the disclosure of the application. These include: (1) Actual reduction to practice, (2) Disclosure of drawings or structural chemical formulas, (3) Sufficient relevant identifying characteristics (such as: i. Complete structure, ii. Partial structure, iii. Physical and/or chemical properties, iv. Functional characteristics when coupled with a known or disclosed, and correlation between function and structure), (4) Method of making the claimed invention, (5) Level of skill and knowledge in the art, and (6) Predictability in the art. See MPEP 2163.
Independent claim 13 is directed to a kit comprising “an agent for detecting a population of a macrophage expressing Cdh5”, “an agent capable of separating the population of the macrophage expressing Cdh5”, and “an agent capable of depleting the population of the macrophage expressing Cdh5”. Claim 14 recites “an agent for detecting a population of a macrophage expressing CD107b+, CD206hi and ESAM+”, “an agent capable of separating the population of the macrophage expressing CD107b+, CD206hi and ESAM+”, and “an agent capable of depleting the population of the macrophage expressing CD107b+, CD206hi and ESAM+”. Claim 19 recites, “an agent capable of depleting a macrophage cell expressing Cdh5”. The claims impose no restriction on the structure of the claimed agents.
The scope of the claims therefore covers methods comprising a large genus of agents for detection, separation, and depletion characterized by substantial variability.
Regarding the predictability or unpredictability in the art, the agents as claimed include antibodies. Antibodies can often be functionally promiscuous or multi-specific which can lead to antibodies binding to more than one antigen, as evidenced by Jain (“Antibody specificity and promiscuity”, published 2019-02-05). In addition, the agents as claimed include aptamers. Liu (“The specificity and selectivity of aptamer depends on the binding epitope: insights from aptamer Hislxl-2a”, published 2026-06-22) discloses, “due to their structural diversity and the still-limited understanding of their recognition mechanisms, they continue to face challenges related to specificity and selectivity in practical applications” (see, p. 1, under “ABSTRACT”). Due to multi-specificity and challenges related to specificity, antibodies and aptamers are agents with a level of unpredictability that requires the applicant to provide evidence that they have considered a sufficient number of agents.
The specification does not disclose the reduction to practice of a sufficient number of specific agents having the necessary functional characteristics. The specification suggests art-recognized methods of using agents and provides prophetic examples. The applicant’s specification recites, “there is provided a kit for detecting and/or separating and/or depleting a population of a macrophage, comprising providing an agent for detecting a population of a macrophage expressing Cdh5, optionally providing an agent capable of separating the population of the macrophage expressing Cdh5, and optionally providing an agent capable of depleting the population of the macrophage expressing Cdh5” (see, p. 3, lines 16-20). The specification also includes limited antibodies for CD107b, CD206, and ESAM (see, under “Table 1”, starting p. 20). However, considering the vast genus of agents claimed by the invention, including aptamers which are not reduced to practice, there is insufficient disclosure of agents falling within the claimed genus.
The disclosure of general methods that use agents is insufficient to describe the claimed broad genus of agents. The Federal Circuit addressed an analogous situation in University of Rochester v. G.D. Searle & Co., Inc., 358 F.3d 916, 927 (Fed. Cir. 2004), finding that disclosure of “assays for screening compounds, including peptides, polynucleotides, and small organic molecules to identify those that inhibit the expression or activity of the PGHS-2 gene product,” did not satisfy the written description requirement for claims requiring administration of a “compound that selectively inhibits PGHS-2.” Rochester, 119 F.3d at 918, 927; see also Ariad Pharmaceuticals, Inc., v. Eli Lilly and Company, 598 F.3d 1336, 1344 (Fed. Cir. 2010) (recognizing distinction between requirements for written description and enablement).
Furthermore, there is also no disclosure of any partial structure common to the members of the genus of agents that would correlate with function (in this case, the claimed functions of detection, separation, and depletion).
The importance of structure/function correlations was recently highlighted by the courts (Abbvie Deutschland v. Janssen Biotech and Centocor Biologics, App. No. 2013-1338, -1346 (Fed. Cir., July 1, 2014)). The Abbvie case involved antibodies and written description. The court stated: “We have held that “a sufficient description of a genus . . . requires the disclosure of either a representative number of species falling within the scope of the genus or structural features common to the members of the genus so that one of skill in the art can ‘visualize or recognize’ the members of the genus.” Id. at 1350 (quoting Eli Lilly, 119 F.3d at 1568– 69).”. The courts then further stated: “With the written description of a genus, however, merely drawing a fence around a perceived genus is not a description of the genus. One needs to show that one has truly invented the genus, i.e., that one has conceived and described sufficient representative species encompassing the breadth of the genus. Otherwise, one has only a research plan, leaving it to others to explore the unknown contours of the claimed genus.” (emphasis added) and then state: " Functionally defined genus claims can be inherently vulnerable to invalidity challenge for lack of written description support, especially in technology fields that are highly unpredictable, where it is difficult to establish a correlation between structure and function for the whole genus or to predict what would be covered by the functionally claimed genus. Ariad, 598 F.3d at 1351 (“[T]he level of detail required to satisfy the written description requirement varies depending on the nature and scope of the claims and on the complexity and predictability of the relevant technology.”); see also Centocor Ortho Biotech, Inc. v. Abbott Labs., 636 F.3d 1341, 1352 (Fed. Cir. 2011) (noting the technical challenges in developing fully human antibodies of a known human protein). It is true that functionally defined claims can meet the written description requirement if a reasonable structure-function correlation is established, whether by the inventor as described in the specification or known in the art at the time of the filing date. Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 964 (Fed. Cir. 2002).
There is no partial structure or other identifying characteristics disclosed, common to the members of the genus of agents having the claimed functions, that would allow one skilled in the art to envision that Appellant has truly invented the genus, i.e., that one has conceived and described sufficient representative species encompassing the breadth of the genus.
For all of these reasons, the specification does not demonstrate possession of the entire genus of agents having the claimed functional characteristics.
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 6-7, 9-11, 14, 16-18, and 20 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.
The terms “CD206lo” and “CD206hi” in claims 6-7, 11, 14, 16-17, and 20 are relative terms which render the claims indefinite. The terms “CD206lo” and “CD206hi” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. “lo” and “hi” are relative terms rendering the degree of expression of CD206 indefinite.
Claim 10 recites the limitations "the first and/or the second population of macrophage" in the claim’s “wherein” clauses. There is insufficient antecedent basis for this limitation in the claim. Independent claim 1, upon which claim 10 depends, does not recite “a first population of macrophage” or “a second population of macrophage”. It is unclear what populations of macrophages are being referred to by “the first population of macrophage” or “the second population of macrophage” because independent claim 1 only requires “a population of macrophage [sic]”.
Claim 16 recites the limitation "the subject" in the body of the claim. There is insufficient antecedent basis for this limitation in the claim. It is unclear how “the subject” is related to the method of claim 16 as independent claim 1 does not require performing the method in any particular “subject”
Claims 16-17 and 20 recite limitations directed at reducing populations of macrophages in subjects. It is unclear what method steps meet the limitations claimed. For example, it is unclear if drawing blood from a subject would reduce the macrophage population in a subject. The specification does not ameliorate the lack of clarity. Therefore, the metes and bounds of the claim cannot be ascertained.
Claim 18 recites, “detecting the expression level of lgfbp7/Cd36 expression in a macrophage”. It is unclear what methods meet the limitation of detecting the expression level of Igfbp7/Cd36 expression, specifically it is unclear if “Igfbp7/Cd36” is referring to a ratio of the two markers or if “Igfbp7/Cd36” is equivalent to “Igfbp7 or Cd36”. The specification does not ameliorate the lack of clarity. Therefore, the metes and bounds of the claim cannot be ascertained.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 18-19 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural phenomenon without significantly more. The claims recite a method for determining the risk of obesity and/or metabolic impairment related to obesity in a subject by detecting the expression of Igfbp7/Cd36 and Cdh5 in macrophages. This judicial exception is not integrated into a practical application, such as constituting an improvement in the technological field, or including steps recited in addition to the judicial exception that integrates detection of the natural phenomena into a particular treatment/prophylaxis according to MPEP § 2106.04(d)(2). The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exceptions because the additional elements fail to provide either an inventive concept or impose meaningful limits upon the method such that the invention does not preempt every observance of the natural phenomenon itself.
Eligibility Step 1:
Claims 18-19 are directed to a method for determining the risk of obesity and/or metabolic impairment related to obesity in a subject by detecting the expression of Igfbp7/Cd36 and Cdh5 in macrophages. Methods are one of the eligible statutory categories for invention (STEP 1: YES). However, eligibility of the claims is not self-evident, and therefore analysis must proceed to Step 2.
Eligibility Step 2A, Prong One:
The natural relationships to which the claims are directed (i.e. the relation between expression levels of biomarkers Igfbp7/Cd36 and Cdh5 in macrophages and the risk of obesity and metabolic impairment related to obesity) are laws of nature. Similar concepts have been held by the courts to constitute law of nature/natural phenomena, as in the identification of a correlation between the presence of in a bodily sample (such as blood or plasma) and cardiovascular disease risk in Cleveland Clinic Foundation v. True Health Diagnostics, LLC, 859 F.3d 1352, 1361, 123 USPQ2d 1081, 1087 (Fed. Cir. 2017). In Mayo, the Supreme Court found that a claim was directed to a natural law, where the claim required administering a drug and determining the levels of a metabolite following administration, where the level of metabolite was indicative of a need to increase or decrease the dosage of the drug. See Mayo Collaborative Services v. Prometheus Labs., Inc., 566 U.S. 66, 74 (2012).
The instant claims are similar to those in Mayo as they involve a "relation itself [which] exists in principle apart from any human action" (id. at 77), namely the relationship between the naturally occurring expression levels of biomarkers Igfbp7/Cd36 and Cdh5 in macrophages and the risk of obesity and metabolic impairment related to obesity. Therefore, the claims recite at least one judicial exception (STEP 2A, Prong One: YES).
Eligibility Step 2A, Prong Two:
According to Step 2A, Prong Two, set forth in MPEP 2106.04 II A (2), the claims are next evaluated with respect to whether the judicial exception is integrated into a practical application. This analysis turns to the additional steps/elements recited within the claims. In claim 19, the additional step is “treating the subject identified to be of risk of obesity and/or the metabolic impairment related to obesity in the subject with an agent capable of depleting a macrophage cell expressing Cdh5”.
Regarding the additional step cited in claim 19, the treatment is recited at a high level of generality and are not tied, for example to any particular agent. The treatment or prophylaxis limitation must be “particular,” i.e., specifically identified so that it does not encompass all applications of the judicial exception(s). See MPEP 2106.04(d)(2).
There are no additional elements that reflect an actual improvement within the technical field. For example, there are no additional elements that apply the natural correlation/phenomena judicial exception to a particular treatment or which utilize a particular machine; there are no additional elements that effect a transformation; and, there are no additional elements that apply the judicial exception in some other meaningful way beyond generally linking it to a field, namely, obesity and metabolic impairment. In this way the claims, as drafted, do not integrate the judicial exception into a practical application that would overcome monopolizing the exception. (STEP 2A, Prong Two: NO).
Eligibility Step 2B:
Lastly, there are no additional elements in claims 18-19. (STEP 2B: NO).
The claimed steps/elements recited in addition to the judicial exception, alone or in combination, do not make an inventive contribution over the methods that were known in the art prior to filing, and they amount to mere observation of the natural phenomenon itself, by any means known, with the words “apply it” in order to append it to the field of obesity and metabolic impairment.
For all of these reasons, the claimed subject matter is ineligible under 35 U.S.C. 101 because the claims are directed to a natural phenomenon judicial exception without significantly more.
Claim Rejections - 35 USC § 102
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.
Claims 1, 3-5, and 10-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bonnardel (“Stellate Cells, Hepatocytes, and Endothelial Cells Imprint the Kupffer Cell Identity on Monocytes Colonizing the Liver Macrophage Niche”, published 2019-10-15) as evidenced by Affymetrix (Data Sheet for GeneChip® Gene 1.0 ST Array System for Human, Mouse and Rat, published 2007).
With respect to claim 1, Bonnardel teaches a method of detecting a population of macrophage in a sample, comprising: detecting and/or determining the expression of Cdh5 in the macrophage in the sample (see, e.g., p. 651, under “Figure 7.”, panel “D”, and p. 648, col. 1, para. 3: “BM monocytes were cultured on a feeder layer of DLL4-expressing OP9 cells (OP9-DL4) or control GFP-expressing OP9 cells (OP9-GFP), in presence or absence of BMP2 or BMP9.
Expression of Nr1h3 and Spic were induced by DLL4 stimulation in monocytes within 12 h but failed to induce the expression of KC-core genes (Clec4f, Cd207, Cd5l, and Cdh5)”, emphasis added). It is understood that Kupffer cells (KC) are macrophages based on claim 4 of the applicant’s claims.
With respect to claim 3, Bonnardel teaches wherein method further comprises detecting and determining a cell to be a macrophage in the sample by detecting the expression of a macrophage marker (see, e.g., p. 639, under “Figure 1. Replenishment of KC Pool by Ly6Chi Monocytes”, panels “A” and “B”, marker “F4/80”).
With respect to claim 4, Bonnardel teaches the macrophage is a Kupffer cell (see, e.g., p. 651, under “Figure 7.”, panel “D”, and p. 648, col. 1, para. 3: “BM monocytes were cultured on a feeder layer of DLL4-expressing OP9 cells (OP9-DL4) or control GFP-expressing OP9 cells (OP9-GFP), in presence or absence of BMP2 or BMP9. Expression of Nr1h3 and Spic were induced by DLL4 stimulation in monocytes within 12 h but failed to induce the expression of KC-core genes (Clec4f, Cd207, Cd5l, and Cdh5)”, emphasis added).
With respect to claim 5, Bonnardel teaches wherein the method further comprises detecting and determining a cell to be a macrophage in the sample by detecting the expression of Clec4f, Lyz2, Vsig4, Csf1r, Adgre1, F4/80, Tim4, Clec4F, and Vsig4 (see, e.g., p. e3, under “Microarray”: “25000 AMs and Microglia from WT mice were sorted into 500ul RLT buffer (QIAGEN). RNA was isolated using the RNeasy micro kit (QIAGEN) and sent to the Nucleomics facility, VIB Leuven, Belgium where the microarrays were performed using the GeneChip Mouse Gene 1.0 ST arrays (Affymetrix)”). Affymetrix gives evidence that the GeneChip Mouse Gene 1.0 ST arrays are “’gene-level’ analysis based on whole-transcript coverage” (see, p. 1, under abstract, col. 1, para. 1). Whole-transcript coverages inherently includes Clec4f, Lyz2, Vsig4, Csf1r, Adgre1, F4/80, Tim4, Clec4F, and Vsig4.
With respect to claim 10, Bonnardel teaches wherein the method further comprises separating the first and/or the second population of macrophage (see, e.g., p. e7, para. 4: “2,5 x 104 HSCs, LSECs or hepatocytes were FACS-purified”).
With respect to claim 11, Bonnardel teaches wherein the method further comprises removing the population of cells expressing one or more of Cdh5+, CD107b+, CD206hi and/or ESAM+ from the sample (see, e.g., p. e7, para. 4: “2,5 x 104 HSCs, LSECs or hepatocytes were FACS-purified”).
With respect to claim 12, Bonnardel teaches wherein the method further comprises determining the expression of Clec4f (see, e.g., p. 651, under “Figure 7.”, panel “D”, and p. 648, col. 1, para. 3: “BM monocytes were cultured on a feeder layer of DLL4-expressing OP9 cells (OP9-DL4) or control GFP-expressing OP9 cells (OP9-GFP), in presence or absence of BMP2 or BMP9. Expression of Nr1h3 and Spic were induced by DLL4 stimulation in monocytes within 12 h but failed to induce the expression of KC-core genes (Clec4f, Cd207, Cd5l, and Cdh5)”, emphasis added).
With respect to claim 13, Bonnardel teaches an agent for detecting a population of a macrophage expressing Cdh5 (see, e.g., p. 651, under “Figure 7.”, panel “D”, and p. 648, col. 1, para. 3: “BM monocytes were cultured on a feeder layer of DLL4-expressing OP9 cells (OP9-DL4) or control GFP-expressing OP9 cells (OP9-GFP), in presence or absence of BMP2 or BMP9.
Expression of Nr1h3 and Spic were induced by DLL4 stimulation in monocytes within 12 h but failed to induce the expression of KC-core genes (Clec4f, Cd207, Cd5l, and Cdh5)”, emphasis added). It is understood that because Bonnardel teaches all of the components of the kit, the kit is anticipated.
Claim 15 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Scott (“Bone marrow-derived monocytes give rise to self-renewing and fully differentiated Kupffer cells”, published 2016-01-27).
With respect to claim 15, Scott teaches a transgenic animal model comprising: a macrophage population expressing Cdh5 that have been genetically engineered to undergo ablation upon exogenous activation (see, e.g., p. 2, col. 2, under “Generation and validation of a KC-DTR mouse model.”: “We next generated a mouse in which KCs expressed the human diphtheria toxin receptor (KC-DTR mice) by introducing an expression cassette encoding for an internal ribosome entry site, a yellow fluorescent protein(YFP), a self-cleaving 2A peptide and the human DTR into the 30 untranslated region of the Clec4f gene (Fig. 2a). YFP expression confirmed specific labelling of KCs in KC-DTR mice(Fig.2b–d) and administration of diphtheria toxin (DT) resulted in 100% ablation of F4/80+ CD11bint KCs within 24h”). Cdh5 is inherent to the Kupffer cells as evidenced by p. 31 of the applicant’s specification (see, line 28: “Cdh5 is considered as a core KC gene”).
Claim Rejections - 35 USC § 103
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Bonnardel, as applied to claims 1, 3-5, and 10-13, and further in view of Chakarov (“Two distinct interstitial macrophage populations coexist across tissues in specific subtissular niches”, published 2019-03-15).
Bonnardel teaches as set forth above, but fails to teach wherein the method further comprises detecting and determining the expression of one or more markers comprising CD107a, CD107b, IGFBP7 (Insulin-like growth factor-binding protein 7), LYVE1, CD36, CD206 and/or ESAM in a macrophage in the sample, as in claim 2.
However, Chakarov teaches wherein the method comprises detecting and determining the expression of LYVE1, as in claim 2 (see, e.g., p. 3 of 12, under “Fig. 2.”).
Bonnardel and Chakarov are analogous to the field of the claimed invention because they are both in the field of macrophage analysis. One of ordinary skill in the art before the effective filing date of the application would have found it obvious to add the marker of Chakarov to the method of Bonnardel. An artisan would have been motivated to do so because Chakarov discloses that to answer questions about macrophages, “we isolated IMs [(interstitial macrophages)] from murine lungs and used single-cell MRNA sequencing (scRNA-seq) to identify two independent monocyte-derived populations exhibiting distinct gene expression profiles, phenotypes, and functions” (see, p. 1 of 12, col. 2, para. 1). An artisan would have understood the value LYVE1 provides as a marker to identify the independent gene expression profiles. An artisan would have had a reasonable expectation of success based on the given disclosures.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Bonnardel, as applied to claims 1, 3-5, and 10-13, and further in view of Wu (“Human Liver Macrophage Subsets Defined by CD32”, published 2020-09-23).
Bonnardel teaches as set forth above, but fails to teach wherein the method comprises detecting and determining a population expressing CD206lo and/or ESAM- to be a first population of a Kupffer cell and a population expressing CD206hi and/or ESAM+ to be a second population of a Kupffer cell, as in claim 6.
However, Wu teaches detecting and determining a population of CD206lo and CD206hi populations of Kupffer cells, as in claim 6 (see, e.g., p. 7, col. 2, para. 2:n “All research groups find two subsets of human Kupffer cells, and the most conserved gene expression markers seem to be FCN1, LYZ, S100A8 and S100A9 in the CD32-mid cells, vs. MARCO, HMOX1 and MRC1 in the CD32-high cells”, emphasis added). It is understood that MRC1 is equivalent to CD206 due to p. 25 of the applicant’s specification.
Bonnardel and Wu are analogous to the field of the claimed invention because they are both in the field of macrophage analysis. One of ordinary skill in the art before the effective filing date of the application would have found it obvious to use the biomarker of Wu in the method of Bonnardel. An artisan would have been motivated to add CD206 as a marker for distinguishing Kupffer cells because Wu discloses, “Multiple, independent lines of evidence suggest that there are two populations of macrophages in the mouse and in the human liver, as well as other tissues” (see, p. 1, under “INTRODUCTION”, para. 1). An artisan would have understood that adding the biomarker of Wu to the assay of Bonnardel would be a useful marker for distinguishing Kupffer cell populations. An artisan would have had a reasonable expectation of success based on the given disclosures.
Claims 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Bonnardel (cited above) and Wu (cited above), as applied to claim 6, and further in view of Okada (“Liver Resident Macrophages (Kupffer Cells) Share Several Functional Antigens in Common with Endothelial Cells”, published 2016-02).
Bonnardel and Wu teach as set forth above, but fail to teach detecting and determining Kupffer cells with ESAM, as in claims 7-9.
However, Okada teaches detecting and determining Kupffer cells with ESAM, as in claims 7-9 (see, p. 142, col. 2, under “Kupffer cells express several antigens in common with endothelial cells”: “several genes such as Flt1, Vcam1, Cldn5, Tek, Tie1 and Esam1 were commonly expressed by both KCs and endothelial cells”, emphasis added).
Bonnardel, Wu, and Okada are analogous to the field of the claimed invention because they are all in the field of macrophage analysis. One of ordinary skill in the art before the effective filing date of the application would have found it obvious to incorporate the biomarker ESAM of Okada into the analysis of Kupffer cells of Bonnardel as modified by Wu. An artisan would have been motivated to do so because Okada discloses ESAM is commonly expressed by Kupffer cells (see, e.g., p. 142, col. 2, under “Kupffer cells express several antigens in common with endothelial cells”). An artisan would have had a reasonable expectation of success based on the given disclosures.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Bonnardel (cited above), Wu (cited above), and Okada, as applied to claim 7-9, and further in view of Invitrogen (product sheet for CD107b (LAMP-2) Monoclonal Antibody (M3/84), FITC, eBioscience, published latest 2004) and Zuk (US 4,208,479, published 1980).
Bonnardel, Wu, and Okada teach as set forth above, including agents for detecting macrophage expression of Cdh5, CD206, and ESAM (see, e.g., Bonnardel, p. e5, under “KEY RESOURCES TABLE”: “Cdh5 qPCR FWD”; Wu, p. 3, under “TABLE 2”: “Anti-CD206”; Okada, p. 140, col. 1, para. 2: “The following antibodies were purchased: […] rat anti-mouse ESAM-1 [R&DSystems]”), but fail to teach an agent for detecting macrophage expression of CD107b, as in claim 14. The references also fail to teach combining all of the agents in a kit, as in claim 14
However, Invitrogen teaches an agent for detecting macrophage expression of CD107b, as in claim 14 (see, under “Product Specific Information”: “Description: The M3/84 monoclonal antibody reacts with mouse Mac-3, the 110 kDa protein expressed by mononuclear phagocytes. The Mac-3 antigen is expressed intracellularly by bone marrow monocyte lineage and is upregulated during macrophage differentiation. Peritoneal and tissue macrophages, dendritic cells, and endothelial cells express this antigen on their surface. It is reported that Mac-3 may be identical to CD107b”).
Zuk teaches the convenience and enhancement of accuracy associated with providing all necessary reagents for an assay combined in a kit (column 22, lines 20-68).
In light of the teachings of Zuk as well as the well-known advantages of providing reagents in kit form for commercial sale, one would be motivated to combine together the necessary reagents together as a kit.
Bonnardel, Wu, Okada, and Invitrogen are analogous to the field of the claimed invention because they are all in the field of macrophage analysis. One of ordinary skill in the art before the effective filing date of the application would have found it obvious to incorporate the biomarker CD107b of Invitrogen into the analysis of Kupffer cells of Bonnardel as modified by Wu and Okada. An artisan would have been motivated to do so because Invitrogen discloses, “The Mac-3 antigen is expressed intracellularly by bone marrow monocyte lineage and is upregulated during macrophage differentiation” (see, p. 1, “Product Specific Information”). An artisan would have had a reasonable expectation of success based on the given disclosures.
Claims 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Bonnardel, as applied to claims 1, 3-5, and 10-13, and further in view of Huang (“Depletion of Liver Kupffer Cells Prevents the Development of Diet-Induced Hepatic Steatosis and Insulin Resistance”, published 2009-11-23).
Bonnardel teaches as set forth above, including detecting macrophages expressing Cdh5, but fails to teach wherein the wherein the method further comprises depleting a population of a macrophage, wherein said depleting comprises: reducing a population of the macrophage in the subject, as in claim 16. Bonnardel fails to teach wherein the method further
comprises improving the health of an obese and/or overweight subject, wherein the
improving comprises: reducing a population of a macrophage in the subject, as in claim 17.
However, Huang teaches depleting a population of macrophages in the subject, as in claim 16 (see, e.g., p. 347, col. 2, under “RESEARCH DESIGN AND METHODS”: “Rats were depleted of KCs by administration of gadolinium chloride, after which all animals were exposed to a 2-week high-fat or high-sucrose diet”). Huang teaches depleting a population of macrophages in obese or overweight subjects, as in claim 17 (see, e.g., p. 347, col. 2, under “RESEARCH DESIGN AND METHODS”: “Rats were depleted of KCs by administration of gadolinium chloride, after which all animals were exposed to a 2-week high-fat or high-sucrose diet”, and p. 347, col. 1, under “OBJECTIVE”: “Increased activity of the innate immune system has been implicated in the pathogenesis of the dyslipidemia and insulin resistance associated with obesity and type 2 diabetes. In this study, we addressed the potential role of Kupffer cells (liver-specific macrophages, KCs) in these metabolic abnormalities”, emphasis added).
Bonnardel and Huang are analogous to the field of the claimed invention because they are both in the field of macrophages. One of ordinary skill in the art before the effective filing date of the application would have found it obvious to deplete a population of macrophages in a subject, specifically an obese or overweight subject, as disclosed by Huang in the method of Bonnardel. An artisan would have been motivated to do so because Huang teaches that “Depletion of Liver Kupffer Cells Prevents the Development of Diet-Induced Hepatic Steatosis and Insulin Resistance” (see, under title). Huang also discloses, “These data demonstrate a role for liver macrophages in diet-induced alterations in hepatic lipid metabolism and insulin sensitivity, and suggest a role for these cells in the etiology of the metabolic abnormalities of obesity/type 2 diabetes” (see, p. 347, col. 1, under “CONCLUSIONS”). An artisan would have had a reasonable expectation of success based on the given disclosures.
Claims 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Bonnardel and Huang, as applied to claims 16-17, and further in view of Morgantini (“Liver macrophages regulate systemic metabolism through non-inflammatory factors”, published 2019-03-25).
Bonnardel and Huang teaches as set forth above, but fails to teach wherein the determining comprises: detecting the expression level igfbp7/Cd36 expression in a macrophage, as in claims 18-19.
Morgantini teaches determining comprises: detecting the expression level igfbp7/Cd36, as in claims 18-19 (see, e.g., p. 2, para. 1: “we find that LMs produce non-inflammatory factors, such as insulin-like growth factor-binding protein 7 (IGFBP7), that directly regulate liver metabolism”).
Bonnardel, Huang, and Morgantini are analogous to the field of the claimed invention because they are all in the field of macrophages. One of ordinary skill in the art before the effective filing date of the application would have found it obvious to incorporate igfbp7 of Morgantini into the method of Bonnardel as modified by Huang. An artisan would have been motivated to do so because Morgantini discloses, “Our study demonstrates that LMs can contribute to insulin resistance independently of their inflammatory status and indicates that non-inflammatory factors produced by macrophages might represent new drug targets for the treatment of metabolic diseases” (see, p. 2, para. 1). An artisan would have had a reasonable expectation of success based on the given disclosures.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Bonnardel (cited above) and Huang (cited above), as applied to claims 16-17, and further in view of Wu (cited above) and Okada (cited above).
Bonnardel and Huang teach as set forth above, but fail to teach the macrophages express CD206hi and ESAM+, as in claim 20.
However, Wu and Okada teach macrophages expressing CD206hi and ESAM+, as in claim 20 (see, e.g., Wu, p. 7, col. 2, para. 2:n “All research groups find two subsets of human Kupffer cells, and the most conserved gene expression markers seem to be FCN1, LYZ, S100A8 and S100A9 in the CD32-mid cells, vs. MARCO, HMOX1 and MRC1 in the CD32-high cells”, emphasis added, and Okada, p. 142, col. 2, under “Kupffer cells express several antigens in common with endothelial cells”: “several genes such as Flt1, Vcam1, Cldn5, Tek, Tie1 and Esam1 were commonly expressed by both KCs and endothelial cells”, emphasis added).
Bonnardel, Huang, Wu, and Okada are analogous to the field of the claimed invention because they are all in the field of macrophages. One of ordinary skill in the art before the effective filing date of the application would have found it obvious to incorporate the markers, specifically CD206 and ESAM, of Wu and Okada into the method of Bonnardel as modified by Huang. An artisan would have been motivated to do so because Okada discloses ESAM is commonly expressed by Kupffer cells (see, e.g., p. 142, col. 2, under “Kupffer cells express several antigens in common with endothelial cells”). Further, Wu discloses, “Multiple, independent lines of evidence suggest that there are two populations of macrophages in the mouse and in the human liver, as well as other tissues” (see, p. 1, under “INTRODUCTION”, para. 1). An artisan would have understood from Okada and Wu that ESAM and CD206 are useful markers for targeting a specific population of macrophages. An artisan would have had a reasonable expectation of success based on the given disclosures.
Conclusion
No claims are allowed.
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/MICHAEL CAMERON SVEIVEN/Examiner, Art Unit 1678
/GREGORY S EMCH/Supervisory Patent Examiner, Art Unit 1678
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