CORNING INCORPORATED

Patent Trials and Appeals Board

Jul 29, 2020

14899394 - (D) (P.T.A.B. Jul. 29, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/899,394 12/17/2015 David Henry SP13-194 1063
22928 7590 07/29/2020
CORNING INCORPORATED
SP-TI-3-1
CORNING, NY 14831
EXAMINER
VISONE, THOMAS J
ART UNIT PAPER NUMBER
1651
NOTIFICATION DATE DELIVERY MODE
07/29/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
usdocket@corning.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID HENRY, MARTIAL HERVY, and
CORINNE WALERACK

Appeal 2020-000130
Application 14/899,394
Technology Center 1600
Before ERIC B. GRIMES, LINDA M. GAUDETTE, and
FRANCISCO C. PRATS, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL1
The Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1 and 3–8.3
We AFFIRM.

1 This Decision includes citations to the following documents: Specification
filed December 17, 2015 (“Spec.”); Final Office Action dated February 8,
2019 (“Final”); Appeal Brief filed June 4, 2019 (“Appeal Br.”); and
Examiner’s Answer dated July 29, 2019 (“Ans.”).
2 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. The Appellant identifies the real party in interest as Corning
Incorporated. Appeal Br. 3.
3 We have jurisdiction under 35 U.S.C. § 6(b).
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CLAIMED SUBJECT MATTER
The invention relates to “a wholly synthetic cell culture article that
enables cell culture in chemically defined medium or serum free medium,
and allows for the harvest of the cultured cells without using any protease.”
Spec. ¶ 6. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A cell culture article, comprising:
a substrate comprising an ionically cross-linked
polygalacturonic acid compound selected from at least one of:
pectic acid;
partially esterified pectic acid having a degree of
esterification from 1 to 40 mol%, or salts thereof; and
an adhesion polymer on the surface of the
polygalacturonic acid compound,
wherein the substrate comprises a microcarrier particle.
Appeal Br. 19 (Claims Appendix).
REFERENCES
The Examiner relies on the following prior art as evidence of
unpatentability:
Name Reference Date
Ma US 6,497,902 Dec. 24, 2002
Darvari

US 2010/0009007 A1 Jan. 14, 2010
Martin US 2011/0183418 A1

Jul. 28, 2011

John F. Robyt, Essentials of Carbohydrate Chemistry, Springer Advanced
Texts in Chemistry (Springer-Science+Business Media, LLC 1998)

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Jean-François Thibault, Gelation of Pectinic Acids in the Presence of
Calcium Counterions, BRITISH POLYMER JOURNAL, Vol. 17, No. 2, pp. 181–
184 (1985).
REJECTION
Claims 1 and 3–8 are rejected under 35 U.S.C. § 103 as unpatentable
over Ma in view of Robyt, Thibault, Martin, and Darvari.
CLAIM CONSTRUCTION
The claim 1 language reasonably could be construed as encompassing
either (1) an adhesion polymer coated substrate, the substrate being selected
from pectic acid and partially esterified pectic acid or salts thereof, or (2) a
substrate selected from pectic acid, partially esterified pectic acid or salts
thereof, and an adhesion polymer coated polygalacturonic acid compound.
Having reviewed the dependent claims and the written description, we
determine that the scope of claim 1 is limited to the first alternative: an
adhesion polymer coated substrate, the substrate being selected from at least
one of pectic acid and partially esterified pectic acid having a degree of
esterification from 1 to 40 mol%, or salts thereof. See, e.g., Spec. ¶¶ 39, 63
(disclosing that the synthetic microcarriers can be selected from pectic acid,
partially esterified pectic acid, or salts thereof, or a mixture thereof); id. ¶ 84
(“PGA [polygalacturonic acid] beads, due to their hydrogel nature and
negative charge, do not readily support cell attachment without specific
treatment. The PGA beads can be functionalized with moieties promoting
cell adhesion, for example, with peptides.”).
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OPINION
The Examiner made the following, undisputed findings: (1) “Ma
teaches a cell culture article comprising an ionically crosslinked pectin or D-
galactopyranuronic acid (the pyranose form of D-galacturonic acid)
substrate useful, e.g., in cell culture applications” and “Ma further teaches
that bioactive agents can be incorporated into the cell culture article”; (2)
Robyt teaches that pectins are divided into two categories (pectinic acids
which are polygalacturonic acids that are partly esterified with methanol and
pectic acids which are polygalacturonic acids with no or only a negligible
amount of methyl ester); (3) “Thibault teaches [that] pectinic acid . . . readily
forms a gel in the presence of calcium ions if the degree of esterification is
lower than 40%”; (4) Martin teaches that “cell culture articles can be coated
with adhesion polymers such as poly(HEMA-co-MAA-PEG-VN)
copolymers”; and (5) “Darvari teaches [that] microparticles can be coated
with polygalacturonic acid.” Final 2–4. The Appellant does not dispute these
findings. See generally Appeal Br. 12–16. Nor does the Appellant dispute
the Examiner’s finding that one of ordinary skill in the art at the time of
filing would have produced Ma’s hydrogel using “pectinic acid, with a
degree of esterification below 40%, or pectic acid, with no or only a
negligible amount of methyl ester,” based on the teachings of Robyt and
Thibault. See Final 3 (finding that “the prior art recognizes that a high
degree of methyl esterification prevents gel formation”); see generally
Appeal Br. 12–16.
The Appellant argues, however, that the Examiner reversibly erred in
finding that one of ordinary skill in the art would have “modif[ied] the
teachings of Ma, Robyt, and Thibault in view of Martin to advantageously
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enhance attachment of anchorage-dependent cells using an adhesion
polymer[]” (Final 3). See Appeal Br. 13–15. The Appellant also argues that
the Examiner reversibly erred in finding that one of ordinary skill in the art
would have “modif[ied] Ma, Robyt, Thibault, and Martin in view of Darvari
in order [to] advantageously produce polygalacturonic acid coated
microcarriers for cell culture applications” (Final 4). See Appeal Br. 15–16.
The Appellant’s arguments are not persuasive for the reasons discussed
below.
The Appellant argues that Martin’s cell culture surfaces and articles
do not include hydrogel or polysaccharide materials such as those disclosed
by Ma, and that the Examiner did not identify “any disclosure or
demonstration of including . . . an adhesion polymer on the surface of a
polygalacturonic acid substrate.” Appeal Br. 14. These arguments are
unpersuasive because, as the Examiner finds (Ans. 5), Martin explicitly
states that “the substrate may be any material suitable for culturing cells”
(Martin ¶ 61 (emphasis added)).
The Appellant argues that the Examiner’s explanation of why the
ordinary artisan would have coated polygalacturonic acid substrates with cell
adhesion polymers—to enhance attachment of anchorage-dependent cells—
relies on impermissible hindsight. Appeal Br. 15. This argument is not
convincing because the Examiner’s finding is supported by Martin’s
teaching that “a cell adhesive peptide is a peptide or polypeptide, an amino
acid sequence (which terms are interchangeable) which contains a sequence
known or after-identified to enhance cell binding, either to a surface in [a]
cell culture, or to other cells or extracellular matrix in vivo.” Martin ¶ 31
(emphasis added).
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The Appellant further argues that the ordinary artisan would not have
had a reasonable expectation of success in including an adhesion polymer on
the surface of a polygalacturonic acid substrate because “it is known that
absorption of such adhesion polymers on materials, such as those discussed
in Martin, relies on hydrophobic interactions which do not exist for
polygalacturonic acid substrates.” Appeal Br. 14. We agree with the
Examiner that this argument is not persuasive because it is based on
unsupported, attorney argument. See Ans. 6.
The Appellant argues that the Examiner failed to explain sufficiently
why the ordinary artisan “would selectively ignore the substrates and
materials disclosed in Martin . . . and . . . instead choose the microcarrier
taught in [Darvari].” Appeal Br. 16. As found by the Examiner, Darvari
teaches that surface-modified microparticles are capable of altered binding
interactions with molecules, cells, and tissues, as compared to microparticles
not carrying such surface modifications (Final 4 (citing Darvari Abstract)),
thus “provid[ing] a clear motivation to specifically select polygalacturonic
acid coated microcarrier particles as the substrate for the cell culture article”
(Ans. 10). The Appellant has not explained persuasively why this finding is
erroneous or unreasonable. See Appeal Br. 16.
The Appellant also argues that “Ma suggests several disadvantages
related to the forming of beads or microcarriers and therefore teaches away
from forming beads or microcarriers.” Appeal Br. 16. The Appellant directs
us to Ma column 1, lines 42–59, in support of this argument. Id. at 15. We
are not persuaded that the ordinary artisan, upon reading Ma’s disclosure,
would have been discouraged from using a microcarrier particle as a
substrate in Ma’s cell culture article. See In re Gurley, 27 F.3d 551, 553
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(Fed. Cir. 1994) (“A reference may be said to teach away when a person of
ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction
divergent from the path that was taken by the applicant.”). In response to the
Appellant’s argument, the Examiner finds that the disclosure in Ma column
1, lines 42–59, “is limited to sodium alginate hydrogels produced using
specific procedures.” Ans. 8 (citing Ma 2:12–17). The Appellant has not
provided persuasive argument or evidence to refute this finding.
Any arguments made by the Appellant, but not discussed in this
Decision, have been fully addressed by the Examiner and are unpersuasive
for the reasons stated in the Final Office Action and the Answer.
CONCLUSION
For the reasons discussed above, we are not persuaded of reversible
error in the Examiner’s determination that the claim 1 cell culture article is
obvious over the combined teachings of Ma, Robyt, Thibault, Martin, and
Darvari. Because the Appellant’s arguments in support of patentability are
directed to the claims as a group, we sustain the rejection as to all appealed
claims. See 37 C.F.R. § 41.37(c)(iv) (2018).
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–8 103 Ma, Robyt, Thibault,
Martin, Darvari
1, 3–8

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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED