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 .
Status of Claims
The amendments submitted on 03/30/2026 have been entered.
Claims 1-3, 5, 7-11, 13-21 are pending.
Claims 1-3, 5, 7-11, 13-21 are examined herein.
Withdrawn Objections and Rejections
The examiner acknowledges the newly filed claims and specification filed on 03/30/2026. The responses to the Applicant’s remarks (filed on 03/30/2026) to the First Office Action Non-Final rejection from 12/30/2025 are below.
Objections to Claims 10,11,13 and 14 are withdrawn because of amendments to the claims.
Rejections under 112(b) to Claims 4 and 6 are moot due to cancelation of the claims. Rejections under 112(b) to Claims 5,7, 10 and 17-19 are withdrawn due to amendments to the claims and examiners claim interpretation below regarding “multimeric proteins”.
The 112 (a) written description rejection is withdrawn because of amendments to the claims.
The 102 rejection placed on Claims 1-3, 7-10, 13-14, 16, and 19-21 are removed due to amendments to the claims.
The 103 previous rejection placed on Claims 4-6, 11, 15, 17 and 18 are removed due to cancelation of the claims or amendments to the claims.
Note: Objection to Specification for using browser-executable code remains as there is a link on page 21 line 1. See specifications section below for more information.
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP §608.01. The specification contains links on page 21 lines 2 and 18.
Note: Specification referenced in this document refers to the specification filed on 03/30/2026 and has annotations and is 77 pages long.
Claim Interpretation
Biosimilar is interpreted to mean a monoclonal antibody (mAb) that is almost an identical copy of an original/reference mAB and that is similar in terms of quality, safety, and efficacy to said already licensed reference mAb. Therefore, Claims 5 and 17, which recites a biosimilar antibody, is interpreted to be any antibody that is biosimilar to Nivolumab, an anti-PD-1 mAb or its DNA or Protein sequence, as in Claim 18.
The phrase “chains” in Claim 1 is interpreted to mean of amino acids linked by peptide (amide) bonds and includes both polypeptide chains that are folded or arranged in a biologically functional way and polypeptide chains that are not and is described in line 29 of page 12 of the specification.
Multimeric protein are defined in the spec as a protein complex comprising two or more separate polypeptide or protein chains associated with each other by non-covalent protein-protein interactions. Said two or more polypeptide or protein chains may be identical (in homo(multimeric) proteins) or different (in hetero(multimeric) proteins). This is stated on page 13 line 4 of the specification. The specification also recites antibodies are multimeric proteins on page 23 line 21. However, Page 16 line 20 teaches that disulfide bonds (i.e. covalent bonds) are used to link heavy and light chains together. Therefore, the examiner interprets the covalent bonds referenced in the multimeric protein definition as peptide (amide) bonds and covalent disulfide bonds are allowable between multiple proteins to generate a multimeric structure.
Page 8 line 20 defines “construct” as a nucleic acid molecule that transfers DNA segment(s) from one cell to another. The term "vector" is sometimes used interchangeably with "construct". The term "construct" includes circular nucleic acid constructs such as plasmid constructs, phagemid constructs, cosmid vectors, etc., as well as linear nucleic acid constructs including, but not limited to, PCR products.
The terms "plant nucleic acid expression construct" or "plant nucleic acid construct" refers to a nucleic acid construct including a coding nucleic acid sequence (also named herein "nucleic acid of interest" or "transgene"), which is operably linked to at least one promoter for directing transcription of nucleic acid in a host plant cell and which typically forms the expression cassette.
The DNA border repeats are interpreted by the examiner to be left and right border sequences. See page 59 line 17 of the specification.
Examiner Note: The examiner does not see any terminology in the claims that would require the claimed multimeric proteins chains in the multimeric protein to be translational fusions or expressed with the use of a single promoter as what may have been directed to in page 15 paragraph 4 in the Applicant’s remarks from 03/30/2026 and page 23 lines 16 to 21 of the specification.
Claim Rejections - 35 USC § 103
Claims 1-3, 5, 7-11, 13-21 are rejected under 35 U.S.C. 103 based on the teachings of (i) Lee, Ye-Rin, et al. "Expression of colorectal cancer antigenic protein fused to IgM Fc in Chinese cabbage (Brassica rapa)." Plants 9.11 (2020): 1466 (see 892 document filed 12/30/2025) in view of (ii) Nakanishi, Katsuhiro, et al. "Protection of human colon cells from Shiga toxin by plant-based recombinant secretory IgA." Scientific Reports 7.1 (2017): 45843 (see 892 document filed 12/30/2025), (iii) Kutyshenko, Victor P., et al. "Effect of C-terminal His-tag and purification routine on the activity and structure of the metalloenzyme, l-alanyl-d-glutamate peptidase of the bacteriophage T5." International journal of biological macromolecules 124 (2019): 810-818, (iv) Rattanapisit, Kaewta, et al. "Structural and in vitro functional analyses of novel plant-produced anti-human PD1 antibody." Scientific reports 9.1 (2019): 15205 (see IDS filed 03/12/2024, and (v) US 20150210772 A1.
Regarding independent Claim 1, Lee et al 2020 is directed to a method for producing genetically modified Chinese cabbage (Brassica rapa), a species in the Brassica genus, to stably express a recombinant protein of interest. Specifically, the pRCV2 binary vector used to transform hypocotyls was cloned to encode the gene for the epithelial cell adhesion molecule-immunoglobulin M fragment crystallizable (EpCAM-IgM Fc) fusion protein. This vector is also a nucleic acid sequence coding for the different chains (i.e. EpCAM and IgM) of a protein fused into a single synthetic nucleic acid as recited in Claim 1 points a2 and a4. The described construct was operably linked using a P35S promoter (i.e. regulatory sequence active in plant) and contained T35S terminators in the 3' untranslated region. An image of Lee's et al 2020 vector construct can be seen in Figure 1A on page 3 and a method describing how to transform the cabbage is described in paragraph 3 on page 10 to paragraph 1 of page 11. Lee et al 2020 also teaches a method for generating the pentameric (i.e. multimeric protein) EpCAM-IgM Fe X Joining-Chain KDEL (J-chain K) protein in Chinese cabbage. It further teaches that the pentameric protein was generated by crossing Tl Chinese cabbage lines that are stably expressing the two transgenes encoding the EpCAM-IgM Fe and J-chain K proteins. The method for obtaining a transgenic plant, comprising the DNA construct that stably expresses the protein of interest, by regenerating the transgenic plant from the plant tissue (i.e. hypocotyl) that received the nucleic acid construct, as was recited in Claim 2, can be seen in Figure 1 on Page 3 and paragraphs 4-5 on page 10. Both nucleic acid constructs “pH2GW-EpCAM–IgM F” and “pH2GW-J-Chain K” appear to contain 5’ untranslated sequences, a transcriptional terminator sequence (i.e. T35S) and the hygromycin resistance gene (hpt) in Figure 1 and page 10 paragraph 3 and were limitations of Claim 3. Page 10 paragraphs 3-5 teaches a method utilizing transfected Agrobacterium LBA 44041 to transform hypocotyl cells and contained T-DNA binary vectors2 as it is flanked by left and right border regions (i.e. DNA border repeats) which were limitations in Claims 7-10 and 19. The transformed Chinese Cabbage is also an edible plant from the Brassica genus meeting the limitations of Claims 14,16 and 20-21.
Lee et al 2020 does not explicitly disclose a single synthetic nucleic acid construct (or bacterial strain or genetically modified plant comprising it as recited in Claims 13-14) that encodes for different multimeric protein chains having a tag sequence attached at its 3’ end while the multimeric protein has a MW of 130 kDa. The pentameric protein is also not explicitly disclosed as being a biosimilar antibody to nivolumab (i.e. Claims 5, 17-18). A method for obtaining a plant produced protein and treatment comprising administering a plant-produced protein or polypeptide is also not explicitly disclosed.
Nakanishi et al 2017 teaches a method of generating a genetically modified plant expressing a recombinant protein of interest transformed with a single synthetic nucleic acid construct. The protein-coding DNA molecule (i.e. S-hyIgA expression vector) comprises nucleic acid sequences coding for the different chains of the multimeric protein fused into a single synthetic nucleic acid (i.e. S-hyIgA expression vector). The single synthetic nucleic acid binary vector, called pBCHl, encoded the genes for the secretory form of the recombinant Immunoglobulin (S-hylgA) multimeric protein consisting of a light chain, heavy chain, joining chains, and a secretory component for signaling and is described in Figure 1 and paragraph 3 on page 2. Because the different chains of the multimeric protein were encoded on a single synthetic nucleotide (i.e. single synthetic construct) used to transform the plant, and contained regulatory sequences active in plants (i.e. PCAP promoters) the plants in Nakanishi et al 2017 meet the single synthetic construct limitations in Claims 1 and 14. The Agrobacterium used to transform the plants, taught on page 2 paragraph 3 harboring this vector, would also meet the limitations in Claims 13 and 20. It also discloses the S-hylgA protein multimeric protein was identified in the plant on page 4 paragraph 6 which has a MW of ~279-500 KDA and can be seen in in Figure 2e as indicated by arrows, which was a limitation in Claim 1 (i.e., protein has a molecular weight of at least 130 kDa). Besides a method for producing a genetically modified plant expressing a recombinant protein of interest, it also teaches a method for isolating said plant produced protein on page 10 paragraph 2 (i.e. Claim 11). The plant produced protein was used to treat Shiga toxin toxicity in Caco-2 cancer and Vero cell lines and is described in the middle of page 6 paragraphs 3-7 (i.e. Claim 15)
Lee et al 2020 and Nakanishi et al 2017 do not disclose 3’ tag sequences or a biosimilar antibodies to nivolumab.
Regarding the 3’ histidine tag which was a limitation in Claims 1, 13, 14 and 17, Kutyshenko et al 2019 teaches “The addition of poly-histidine tag (His-tag) to the N- or C-terminus of a recombinant protein represents one of the most common genetic modifications of the target recombinant proteins and is broadly used now by the majority of scientists working on the recombinant protein production”.
Lee et al 2020, Nakanishi et al 2017, and Kutyshenko et al 2019 do not disclose a biosimilar antibody to nivolumab.
Rattanapisit et al 2019 teaches “an anti-PD1 IgG4 monoclonal antibody (mAb) was transiently produced in Nicotiana benthamiana leaves” in the abstract. The abstract also discloses the plant-produced anti-PD1 mAb was compared to the commercial nivolumab and showed that both antibodies have similar (i.e. biosimilar) protein structures. Figure 1 on page 2 teaches that the vectors used to transform the plants encoded the heavy and light chain of the nivolumab which was able to bind to human PD-1 protein. These plants read upon the limitation of Claims 5 and 17-18 as they express a biosimilar antibody to nivolumab.
Lee et al 2020, Nakanishi et al 2017, Kutyshenko et al 2019, and Rattanapisit et al 2019 do not teach a nivolumab sequence with the heavy chain encoded by SEQ ID NO: 2 or heavy chain encoded by SEQ ID NO: 1.
US 20150210772 A1 is directed to treatments comprising a PD-axis binding antagonist (i.e. nivolumab) and an anti-CD20 antibody and methods for use thereof and teaches the light and heavy chain sequences of nivolumab in paragraph 155. SEQ ID NOs: 22 and 23 of US 20150210772 A1 align to Applicant’s SEQ ID NOs: 1-2 (Claim 18). Besides teaching the sequences of the heavy and light chain of the nivolumab, it also teaches “Suitable host cells for the expression of glycosylated antibody are also derived from multicellular organisms (invertebrates and vertebrates). Examples of invertebrate cells include plant and insect cells” in paragraph 328. Paragraph 155 also teaches an isolated nivolumab while Claim 1 in US 20150210772 A1 is directed to a method of treating or delaying progression of cancer in an individual comprising administering to the individual an effective amount of a PD-1 axis binding antagonist (i.e. nivolumab see paragraphs 32 and 154) which were limitations of Claims 11 and 15.
Heavy Chain
Sequence 1: Applicant’s SEQ ID NO:1
Sequence 2: US 20150210772 A1 SEQ ID NO:22
100.0% identity in 440 residues overlap; Score: 2348.0; Gap frequency: 0.0%
Sequence1 1 QVQLVESGGGVVQPGRSLRLDCKASGITFSNSGMHWVRQAPGKGLEWVAVIWYDGSKRYY
Sequence2 1 QVQLVESGGGVVQPGRSLRLDCKASGITFSNSGMHWVRQAPGKGLEWVAVIWYDGSKRYY
************************************************************
Sequence1 61 ADSVKGRFTISRDNSKNTLFLQMNSLRAEDTAVYYCATNDDYWGQGTLVTVSSASTKGPS
Sequence2 61 ADSVKGRFTISRDNSKNTLFLQMNSLRAEDTAVYYCATNDDYWGQGTLVTVSSASTKGPS
************************************************************
Sequence1 121 VFPLAPCSRSTSESTAALGCLVKDYFPEPVTVSWNSGALTSGVHTFPAVLQSSGLYSLSS
Sequence2 121 VFPLAPCSRSTSESTAALGCLVKDYFPEPVTVSWNSGALTSGVHTFPAVLQSSGLYSLSS
************************************************************
Sequence1 181 VVTVPSSSLGTKTYTCNVDHKPSNTKVDKRVESKYGPPCPPCPAPEFLGGPSVFLFPPKP
Sequence2 181 VVTVPSSSLGTKTYTCNVDHKPSNTKVDKRVESKYGPPCPPCPAPEFLGGPSVFLFPPKP
************************************************************
Sequence1 241 KDTLMISRTPEVTCVVVDVSQEDPEVQFNWYVDGVEVHNAKTKPREEQFNSTYRVVSVLT
Sequence2 241 KDTLMISRTPEVTCVVVDVSQEDPEVQFNWYVDGVEVHNAKTKPREEQFNSTYRVVSVLT
************************************************************
Sequence1 301 VLHQDWLNGKEYKCKVSNKGLPSSIEKTISKAKGQPREPQVYTLPPSQEEMTKNQVSLTC
Sequence2 301 VLHQDWLNGKEYKCKVSNKGLPSSIEKTISKAKGQPREPQVYTLPPSQEEMTKNQVSLTC
************************************************************
Sequence1 361 LVKGFYPSDIAVEWESNGQPENNYKTTPPVLDSDGSFFLYSRLTVDKSRWQEGNVFSCSV
Sequence2 361 LVKGFYPSDIAVEWESNGQPENNYKTTPPVLDSDGSFFLYSRLTVDKSRWQEGNVFSCSV
************************************************************
Sequence1 421 MHEALHNHYTQKSLSLSLGK
Sequence2 421 MHEALHNHYTQKSLSLSLGK
********************
Light Chain
Sequence 1: Applicant’s SEQ ID NO: 2
Sequence 2: US 20150210772 A1 SEQ ID NO: 23
100.0% identity in 214 residues overlap; Score: 1106.0; Gap frequency: 0.0%
Sequence1 1 EIVLTQSPATLSLSPGERATLSCRASQSVSSYLAWYQQKPGQAPRLLIYDASNRATGIPA
Sequence2 1 EIVLTQSPATLSLSPGERATLSCRASQSVSSYLAWYQQKPGQAPRLLIYDASNRATGIPA
************************************************************
Sequence1 61 RFSGSGSGTDFTLTISSLEPEDFAVYYCQQSSNWPRTFGQGTKVEIKRTVAAPSVFIFPP
Sequence2 61 RFSGSGSGTDFTLTISSLEPEDFAVYYCQQSSNWPRTFGQGTKVEIKRTVAAPSVFIFPP
************************************************************
Sequence1 121 SDEQLKSGTASVVCLLNNFYPREAKVQWKVDNALQSGNSQESVTEQDSKDSTYSLSSTLT
Sequence2 121 SDEQLKSGTASVVCLLNNFYPREAKVQWKVDNALQSGNSQESVTEQDSKDSTYSLSSTLT
************************************************************
Sequence1 181 LSKADYEKHKVYACEVTHQGLSSPVTKSFNRGEC
Sequence2 181 LSKADYEKHKVYACEVTHQGLSSPVTKSFNRGEC
**********************************
It would have been prima facie obvious to combine the teachings of Lee et al 2020, Nakanishi et al 2017, Kutyshenko et al 2019, Rattanapisit et al 2019, and US 20150210772 A1 to generate a method for producing a genetically modified edible Brassica plant expressing a multimeric protein biosimilar to nivolumab and utilize Agrobacterium to generate such a plant. The limitations in Claim 1 regarding the protein coding DNA molecule which comprises nucleic acid sequences coding for the different chains of the multimeric protein fused into a single synthetic nucleic acid (i.e. single synthetic construct) and tagging the 3’ end of the different multimeric chains is a design choice and the criticality of such limitations have not been described by the Applicant. Additionally, the multimeric protein’s mass being at least 130 kDa is an inherent characteristic of the invention and multiple multimeric proteins (including nivolumab) have been extracted from plants and demonstrated to have MW with a kDa above 130 kDa (see Rattanapisit et al 2019 Figure 1C). There has also been multiple works published on comparing methods of antibody production in plants using single or multiple vectors3. Because the construct components are known in the art, a single synthetic construct has been used to transform multiple antibodies in plants, and multimeric proteins have been produced in Chinese cabbage, the applicant and anyone with ordinary skill in the art would have had a reasonable expectation of success. The motivation for claiming a method that producing such a plant is recited in Rattanapisit et al 2019 in the first paragraph which teaches nivolumab is a immune checkpoint inhibitor approved by the USFDA and used in cancer treatment and can be cheaply produced in plants. While Lee et al teaches “Chinese cabbage has been recently recognized as a potential candidate to produce such valuable recombinant proteins, because it has a reasonable total soluble protein capacity relative to plant biomass”.
Citation of Relevant Prior Art
The examiner does not see any terminology in the claims that would require the claimed multimeric proteins chains in the multimeric protein to be translational fusions or expressed with the use of a single promoter as what may have been directed to in page 15 paragraph 4 in the Applicant’s remarks from 03/30/2026 and page 23 lines 16 to 21 of the specification. Regardless, Lim, Sohee, Do-Sun Kim, and Kisung Ko. "Expression of a large single-chain 13F6 antibody with binding activity against ebola virus-like particles in a plant system." International Journal of Molecular Sciences 21.19 (2020): 7007 teaches a method of generating a genetically modified plant expressing a recombinant protein of interest (i.e. mAb 13F6-large single-chain (LSC)) transformed with a single synthetic nucleic acid construct. The protein-coding DNA molecule (i.e.pBi h13F6-LSCK depicted below) comprises nucleic acid sequences coding for the different chains of the multimeric protein fused into a single synthetic nucleic acid. The multimeric (i.e dimeric) mAP 1356-LSC is also depicted below. While Lim et al 2020 does not indicate it as a multimeric protein, it appears to be multimeric as it has two heavy chains and KDEL regions making it a dimeric protein (see figure 1). Lim et al 2020 also discloses a peptide linker between the two domains. The applicant’s His tag between heavy and light chains could also be interpreted as a linking peptide. Because the different chains of the multimeric protein were encoded on a single synthetic nucleotide (i.e. single synthetic construct) used to transform the plant, and contained regulatory sequences active in plants (i.e. enhanced duplicated 35S promoter) the plants in Lim et al 2020 meet the single synthetic construct limitations in Claims 1 and 14. The Agrobacterium used to transform the plants, taught on page 11 paragraph 3 harboring this vector, would also meet the limitations in Claims 13 and 20.
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Response to Applicant’s Arguments
Initially, it is noted that this is a new rejection necessitated by the claim amendments.
In response to the arguments on the cited art failing to establish a Prima Facie Case of obviousness, the Examiner disagrees. Nevertheless, due to the applicant’s amendments and new references cited by the examiner, the arguments are moot. The examiner disagrees with the Objective Indicia arguments of non-obviousness to further supports patentability. The arguments made under Objective Indicia are understood to be that their results would not have been expect to one of ordinary skill in the art because the applicant used a Brassica plant and a single construct coding for the proteins used to generate the multimeric protein that was biosimilar to nivolumab and maintained its structure and function. The applicant also argues their de novo synthesized nucleic acid construct offers significant technical advantages. The examiner disagrees because multimeric proteins have been expressed in Brassica plants as taught above, and using single synthetic construct to encode multiple proteins for a multimeric protein are known in the art. Additionally, the remarks regarding de novo synthesized sequences being superior is moot, as claims are directed to polynucleotide or polypeptide sequences and make no mention on if they were de novo synthesized or cloned from an existing organisms.
Summary
No claims are allowed.
Applicants’ amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR § 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Communications
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GEORGE W MEYER whose telephone number is (571)272-3733. The examiner can normally be reached Monday - Friday 8:00 am- 5:00 pm.
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/GEORGE W MEYER/ Examiner, Art Unit 1662
/BRATISLAV STANKOVIC/ Supervisory Patent Examiner, Art Units 1661 & 1662
1 Tishchenko, O. M., et al. "Agrobacterium-mediated transformation of sunflower (Helianthus annuus L.) in vitro and in planta using Lba4404 strain harboring binary vector pBi2E with dsRNA-suppressor of proline dehydrogenase gene." Cytology and genetics 48.4 (2014): 218-226 teaches this strain is disarmed on page 7 paragraph 4.
2 Taught on page 38 lines 24-30 of the specification
3 Huang, Zhong, et al. "High‐level rapid production of full‐size monoclonal antibodies in plants by a single‐vector DNA replicon system." Biotechnology and bioengineering 106.1 (2010): 9-17 and Palaci, Jorge, Vikram Virdi, and Ann Depicker. "Transformation strategies for stable expression of complex hetero‐multimeric proteins like secretory immunoglobulin A in plants." Plant biotechnology journal 17.9 (2019): 1760-1769 (see IDS filed 03/12/2024).
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