Ex Parte Peyman

Patent Trial and Appeal Board

Apr 25, 2018

14635595 (P.T.A.B. Apr. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/635,595 03/02/2015
13010 7590 04/25/2018
The Law Office of Patrick F. O"Reilly III, LLC
1509 Lafayette Drive
Columbus, OH 43220-3869
FIRST NAMED INVENTOR
Gholam A. Peyman
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
075200.55 1949
EXAMINER
POPA, ILEANA
ART UNIT PAPER NUMBER
1633
MAILDATE DELIVERY MODE
04/25/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GHOLAM A. PEYMAN 1
Appeal2018-002010
Application 14/635,595
Technology Center 1600
Before JEFFREY N. FREDMAN, JOHN G. NEW, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
NEW, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellant identifies Gholam A. Peyman, the inventor, as the real party-in-
interest. App. Br. 2.
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Application 14/635,595
SUMMARY
Appellant files this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1-8, 10-12, 14, 20-25 and 30-32.
Specifically, claims 1-6, 10, 22-25, and 32 stand rejected as unpatentable
under 35 U.S.C. § 103(a) as being obvious over the combination of Olson
(US 2011/0270153 Al, November 3, 2011) ("Olson") and Greenberg et al.
(US 2011/0224145 Al, September 15, 2011).
Claims 1-6, 10, 14, 22-25, and 32 stand rejected as unpatentable
under 35 U.S.C. § 103(a) as being obvious over the combination of Olson,
Greenberg, and W. Zhang et al., Facile Synthesis of Highly luminescent Mn-
Doped ZnS Nanocrystals, 58 INORGANIC CHEM. 10432-38 (2011)
("Zhang").
Claims 1-8, 10-12, 20, 22-25, and 32 stand rejected as unpatentable
under 35 U.S.C. § 103(a) as being obvious over the combination of Olson,
Greenberg, Deisseroth et al. (US 2014/0148880 Al, May 19, 2014)
("Deisseroth '880"), and DiMauro et al. (US 2011/0022130 Al, January 27,
2011) ("DiMauro").
Claims 1-8, 10-12, 20-25, and 32 stand rejected as unpatentable
under 35 U.S.C. § 103(a) as being obvious over the combination of Olson,
Greenberg, Deisseroth '880, DiMauro, and K. Deisseroth et al., Excitation-
Neurogenesis Coupling in Adult Neural Stem/Progenitor Cells, 42 NEURON,
535-52 (2004) ("Deisseroth").
Claims 1-8, 10-12, 20, 22-25, and 30-32 stand rejected as
unpatentable under 35 U.S.C. § 103(a) as being obvious over the
combination of Olson, Greenberg, Deisseroth '880, DiMauro, and Y. Wang
et al., Combination of Electroporation and DNA/Dendrimer Complexes
2
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Enhances Gene Transfer into Murine Cardiac Transplants, 1 AMER. J.
TRANSPLANT., 334--38 (2001) ("Wang").
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
NATURE OF THE CLAIMED INVENTION
Appellant's invention is directed to methods and compositions to
controllably regulate cells at a target site. A quantum dot-targeting agent
complex is administered to a patient in need of therapy, and the complex is
stimulated using an implanted fiber optic system. Abstract.
REPRESENTATIVE CLAIM
Claim 1 is representative of the claims on appeal and recites:
1. A method for providing a gene to a target cell, the
method comprising
administering to a patient in need thereof a plurality of
nanoparticles other than liposomes, the nanoparticles comprising
at least one G-protein and/or opsin-family gene and an antibody
that targets the nanoparticles to the target cell and coated with a
biocompatible molecule for cell uptake, forming a complex of
nanoparticle-gene in which the nanoparticle is conjugated with
the at least one G-protein and/or opsin-family gene, the complex
further comprising a cell penetrating agent that enhances or
imparts penetration of the complex into the target cell, and the
nanoparticle of the complex functioning as a carrier of the at least
one G-protein and/or opsin-family gene to the target cell without
using a viral vector,
stimulating the complex with an energy source under
conditions sufficient to introduce the at least one G-protein
and/or opsin-family gene into the target cell.
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App. Br. 16.
ISSUES AND ANALYSES
We agree with, and adopt, the Examiner's findings and conclusion
that the appealed claims are obvious over the combined cited prior art. We
address the arguments raised by Appellant below.
A. Rejection of claims 1-6, 10, 22-25, and 32 over Olson and Greenberg
Issue 1
Appellant argues that the Examiner erred in finding that the combined
cited prior art teaches or suggests the limitations of claim 1 reciting: "the
complex further comprising a cell penetrating agent that enhances or imparts
penetration of the complex into the target cell" and "stimulating the complex
with an energy source under conditions sufficient to introduce the at least
one G-protein and/or opsin-family gene into the target cell." App. Br. 4
(emphasis in Appellant's Brief).
Analysis
The Examiner finds Olson teaches a method for treating retinal
degeneration, such as age-related macular degeneration ("AMD")
comprising injecting quantum dots ("QDs") directly into the eye and
activating the QDs with pulses of infrared light (7 50-1000 nm) to electrically
stimulate the neurons via the electrical energy produced by the activated
QDs. Final Act. 3 (citing Olson claims 1, 5, 10, 32, i-fi-17, 9, 11-15, 24--27,
32, 38, 55, 58, 65). The Examiner finds Olson teaches that the QDs
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comprise biocompatible PEG-lipids and coupled antibodies for targeting the
QDs to the desired site. Id. (citing Olson claims 1, 2, i-fi-f 10, 44).
The Examiner finds that Olson does not teach a rhodopsin gene,
however, Greenberg teaches a method of treating retinal degeneration, such
as AMD, comprising intravitreal injection of a plasmid vector encoding
channelrhodopsin and a plasmid vector encoding halorhodopsin to express
channelrhodopsin and halorhodopsin in the retinal neuronal cells of subjects
in need of treatment, followed by light activation of the expressed
channelrhodopsin and halorhodopsin with infrared light. Final Act. 3 (citing
Greenberg Abstr., i-fi-14, 41--42, 50, 78, 84, 97, 98, 102, 103, 125, 130, 132).
The Examiner finds that a person of ordinary skill in the art,
comprehending the teachings of Olson and Greenberg, would have known
that QDs and plasmids encoding channelrhodopsin and halorhodopsin are
useful for the same purpose, i.e., to treat retinal degeneration. Final Act. 4.
The Examiner therefore concludes that it would have been obvious to a
skilled artisan to conjugate the viral vector encoding ChR2 to Olson's QDs
and inject the resultant composition into the eye to achieve the predictable
and desirable result of treating retinal degeneration. Id.
Appellant argues that the combination of Greenberg and Olson fails to
teach or suggest that the complex comprises a cell penetrating agent that
enhances or imparts penetration of the complex into the target cell. App. Br.
4--5. According to Appellants, Olson is primarily directed to cell stimulation
using quantum dots. Id. at 5 (citing Olson Abstr.). Appellants contend that
Olson does not even teach the uptake of quantum dots by cells. Id.
Furthermore, Appellant argues, Greenberg fails to remedy the alleged
deficiencies of the Olson and teaches away from the use of a cell penetrating
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agent because Greenberg teaches other, different methods for the
introduction of genetic material into host cells, including viral transduction.
Id. (citing Greenberg i-f 78). Appellant asserts that a person of ordinary skill
would understand that, when using viral transduction for the introduction of
genetic material into host cells, there is no requirement for a cell penetrating
agent because the viral vector delivering the gene to the host cell will
penetrate the membrane by itself. Id. Appellant therefore asserts that, even
assuming, arguendo, that a person of ordinary skill in the art would combine
the teachings of Greenberg with that of Olson, the skilled artisan would
nevertheless fail to arrive at the claimed invention because Greenberg
teaches methods for the introduction of genetic material into host cells that
would lead one of ordinary skill in the art away from the claimed invention.
Id.
We do not find these arguments persuasive. Appellant contends that
Olson fails to teach or suggest that the complex contains a cell penetrating
agent. We disagree. Olson teaches that: "[ s ]till in other embodiments, the
composition further comprises a bio-compatible protein, PEG lipids or other
suitable material, biofunctional material." Olson i-f 10. Olson further teaches
that:
Quantum dots can be placed on a surface of retina 120 or
in a subretinal or intraretinal area, such as a space located
between a Bruch's membrane and outer segments, or directly
into the cells themselves. Quantum dots can be placed directly in
such locations or they can be coated with a bio-targeted material,
which adheres to particular cells, such as ganglia or bipolar cells
or photoreceptors. Further, the quantum dots can be internalized
by the target cells.
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Olson i-f 49 (emphasis added). We agree with the Examiner that it is well
known in the art that lipids can facilitate penetration into cells, and that the
PEG lipids taught by Olson as part of the complex can act as both a
biocompatible coat and a cell penetrating agent. See Ans. 11-12.
Nor do we agree with Appellant that Greenberg teaches away from
Olson. A teaching away requires a reference to actually criticize, discredit,
or otherwise discourage the claimed solution. See In re Fulton, 391 F.3d
1195, 1201 (Fed. Cir. 2004). Furthermore, "[t]he prior art's mere disclosure
of more than one alternative does not constitute a teaching away from any of
these alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed." Id. Appellant points to no
teaching of Greenberg, nor can we discern any, that would lead a person of
ordinary skill to "be discouraged from following the path set out in the
reference, or [ ... ] be led in a direction divergent from the path that was taken
by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Rather,
Greenberg teaches the use of, inter alia, viral transduction to introduce
genetic material into retinal cells, but does not address the introduction of
nanoparticles into cells. See Greenberg i-f 78. Olson teaches an alternate
method to introduce nanoparticles (i.e., QDs) into retinal cells. We are
therefore not persuaded that the teaching of alternate methods of
transmembrane introduction of nanoparticles or genetic material by Olson
and Greenberg, respectively, constitute a "teaching away" from the former
by the latter.
Appellant next argues that that the combination of Olson and
Greenberg also fails to teach the limitation of stimulating the complex with
an energy source under conditions sufficient to introduce the at least one G-
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protein and/or opsin-family gene into the target cell. App. Br. 5. Appellant
repeats the previous argument that Olson neither teaches nor suggests uptake
of the QD nanoparticles by cells. Id. Appellant argues further that although
Greenberg teaches the treatment of retinal ganglion cells using the optical
neuromodulators channelrhodopsin and halorhodopsin, Greenberg fails to
teach stimulating a nanoparticle-gene complex with an energy source under
conditions sufficient to introduce the at least one G-protein and/or opsin-
family gene into the target cell. Id. at 5---6. Appellant repeats that Greenberg
teaches other different methods for the introduction of genetic material into
host cells, such as viral transduction. Id. at 6.
Appellant further disputes the Examiner's alleged finding that Olson's
QDs) and Greenberg's expression plasmids encoding channelrhodopsin and
halorhodopsin are art-recognized equivalents for the same purpose. App. Br.
6. Appellant points out the various differences in the functions of QDs,
which emit energy when stimulated, and expression plasmids which encode
for the expression of proteins. Id.
We do not find Appellant's arguments persuasive. As we have
explained supra, we disagree that Olson does not teach the uptake of QDs
into cells. Olson teaches that QDs, which can be incorporated into cells,
emit energy, such as fluorescence or photovoltaic energy. Olson i-fi-17-8.
Greenberg teaches use of a virally-delivered plasmid expression vector that
results in the generation of channelrhodopsin and/or halorhodopsin, light-
sensitive transmembrane channel proteins. Greenberg i15, 6, 78. We agree
with the Examiner that the combination of the teachings of Olson and
Greenberg would lead a person of ordinary skill in the art to understand that
a combined plasmid-vector and QD could be delivered into the cytoplasm of
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a retinal cell and could cause both expression of voltage-sensitive
transmembrane channel proteins as well as generation of a fluorescent or
photovoltaic response that would excite the proteins.
Furthermore, the language of claim 1 requires: "stimulating the
complex with an energy source under conditions sufficient to introduce the
at least one G-protein and/or opsin-family gene into the target cell." We do
not construe this language to mean, as Appellant appears to suggest, that the
stimulation of the complex with an energy source is necessarily one of the
conditions necessary to introduce the at least one G-protein and/or opsin-
family gene into the target cell. That is to say, we do not view the energy
source stimulation as a condition precedent for the introduction of the G-
protein or gene into the cell. Rather, the language of the limitation requires
only that the light is applied when conditions are present such that the G-
protein or gene can be introduced into the cell. The combination of Olson
and Greenberg, as we have explained, teaches conditions under which a gene
can be introduced to the cell, and also teach illuminating the cells to excite
the QDs.
We therefore agree with the Examiner that the combined references
teach or suggest the limitation of claim 1 reciting: "stimulating the complex
with an energy source under conditions sufficient to introduce the at least
one G-protein and/or opsin-family gene into the target cell." Having
established conditions sufficient to introduce an opsin-family gene into the
cell (via attachment to the QD complex), both references teach stimulating
the complex with an energy source.
Nor are we persuaded by Appellant's arguments with respect to the
alleged "functional equivalence" of the teachings of Olson and Greenberg.
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We understand the functional differences between using a viral vector for
genes, as taught by Greenberg, and the nanoparticle delivery complex taught
by Olson. Nevertheless, the larger issue is the more relevant: both
references teach systems by which nanoparticles or plasmids may be
introduced into the internal environment of the cell, either by PEG-lipid
complexing or by a viral delivery system, respectively. We agree with the
Examiner that a person of ordinary skill would understand that the teachings
of the two references could be combined so as to simultaneously deliver
both the genetic expression vector and the QD nanoparticle into the cell via
the internalization mechanism taught by Olson. We are therefore not
persuaded by Appellant's arguments.
Claim 32
Appellant provides an additional argument with respect to claim 32.
App. Br. 7. Appellant contends that the Examiner has failed to show how
the combined teachings of Olson and Greenberg teach or suggest
"administration of the complex is through the cornea by spraying, drops, or
injection to provide the complex to the retina; and where stimulation of the
complex is by light or ultrasound energy applied to the retina through the
cornea." Id.
The Examiner responds that Olson teaches injecting quantum the QDs
directly into the eye. Ans. 15 (citing Olson i-f 58). The Examiner
acknowledges that, although Olson does not explicitly teach that injecting is
through the cornea; there is no evidence of record that injecting through
cornea results in an unexpected outcome. Id. The Examiner concludes that,
absent evidence of unexpected results, a skilled artisan would have found it
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obvious to optimize the method by use any route, including the corneal
route. Id.
With respect to applying the stimulatory light through the cornea,
The Examiner finds Olson teaches activating the QDs with light applied to
the retina through the cornea. Ans. 15 (citing i-fi-164, 65).
We agree with the Examiner's reasoning. Olson teaches: "In some
aspects of the invention, photoactive quantum dots responsive to infrared
energy are injected into vitreous gel 136 and bind to the retinal
photoreceptors." Olson i148. Similarly, Greenberg teaches: "Formulations
suitable for injection can be administered by an intravitreal, intraocular, ...
or other route of administration. Greenberg i-f 11 7. We agree with the
Examiner that administration of the composition of Olson into the inner
chamber of the eye (i.e., intravitreally) through the cornea would be a route
of administration that would have been an obvious design choice for a
person of ordinary skill in the art, because it is one of the few possible routes
to achieve the end. 2
Furthermore, Olson teaches stimulation of the retina by light. See
Olson i-fi-164, 65. Such stimulation must necessarily, because of the structure
of the eye, be through the cornea, which covers the pupil and iris membrane.
We are therefore not persuaded by Appellant with respect to claim 32. 3
2 The other possible route for injection would be through the sclera of the
eye, which is opaque, denser, and more difficult to penetrate. See, e.g.,
Olson Fig. 1, i1 48.
3 Appellant provides additional arguments with respect to claims 24 and 25.
App. Br. 7. Appellants point out that claims 24 and 25 each depend from
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B. Rejection of claims 1---6, 10, 22-25, and 32 over Olson, Greenberg,
and Zhang
Appellant advances the same arguments presented in Section A, and
argues that Zhang fails to cure the alleged deficiencies of Olson and
Greenberg. As we have explained, we are not persuaded by Appellant's
arguments with respect to the alleged inadequacies of Olson and Greenberg,
and we therefore affirm the Examiner's rejection of the claims upon this
ground.
C. Rejection of claims 1-8, 10-12, 22-25, and 32 over Olson,
Greenberg, Deisseroth '880, and DiMauro
Appellant advances the same arguments presented in Section A, and
argues that Deisseroth '880, and DiMauro fails to cure the alleged
deficiencies of Olson and Greenberg. As we have explained, we are not
persuaded by Appellant's arguments with respect to the alleged inadequacies
of Olson and Greenberg, and we therefore affirm the Examiner's rejection of
the claims upon this ground.
Appellant presents additional arguments with respect to claims 7, 12,
and 20.
independent claim 20, which is not part of this rejection, but which is
rejected over the combination of Olson, Greenberg, Deisseroth '880, and
DiMauro. Id. The Examiner has withdrawn this rejection. See Ans. 2.
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Claim 7
Issue
Appellant argues that the combined cited prior art references neither
teach nor suggest the limitation of claim 7 reciting: where "administration of
the complex is through the nasal mucosal [sic] by spraying, drops, or
injection to access olfactory nerves, the olfactory nerve cells providing the
complex to the brain of the patient; and where stimulation of the complex is
by light delivered to the brain via the olfactory nerves by means of the nasal
mucosa." App. Br. 9.
Analysis
Appellant argues that the Examiner mistakenly relies upon paragraph
[0096] of Deisseroth '880, which teaches that: "nanoparticles could be
delivered to neurons via nasal administration," but which, Appellant argues,
does not teach administering the complex through the nasal mucosa to
access olfactory nerves, the olfactory nerve cells providing the complex to a
brain of the patient. App. Br. 9. Appellant asserts that Deisseroth '880 fails
to disclose even accessing the olfactory nerves so as to deliver a complex to
the brain. Id.
Appellant additionally argues that DiMauro, upon which the
Examiner relies, fails to teach the stimulation of the complex by light
delivered to the brain via the olfactory nerves by means of the nasal mucosa
for treatment of a disease associated with the brain of the patient. App. Br.
9. According to Appellant, DiMauro teaches an embodiment in which red
light is delivered through the opening of an implant within the sphenoidal
sinus, shining red light directly on brain structures of the basal prefrontal
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cortex. Id. (citing DiMauro i-fi-f 114, 115, Abstr.). Appellant also points to a
second embodiment of DiMauro, which teaches transmitting red light
through the light permeable cribriform plate to shine light directly on the
olfactory bulb. Id. (citing DiMauro i-fi-f 13, 14, 39). Appellant argues that in
neither of these embodiments is light delivered to the brain via the olfactory
nerves by means of the nasal mucosa. Id. at 9--10.
We are not persuaded by Appellant's arguments. Deisseroth '880
teaches:
The lanthanide-doped nanoparticles disclosed herein can
be delivered to neurons expressing one or more light-responsive
opsin proteins by any route, such as intravascularly,
intracraniall y, intracere brally, intramuscular I y, intradermally,
intravenously, intraocularly, orally, nasally, topically, or by open
surgical procedure, depending upon the anatomical site or sites
to which the nanoparticles are to be delivered.
Deisseroth '880 i196. Appellant contends that this passage fails to teach
administering the complex through the nasal mucosa to access olfactory
nerves, the olfactory nerve cells providing the complex to a brain of the
patient. See App. Br. 9.
We disagree. We find that a person of ordinary skill in the art would
understand that nasal administration to mean that the nanoparticles are
administered into the nasal passage with the intended purpose of contacting
the nasal mucosa, within which the dendritic processes of the neurons of the
olfactory nerve are located. Indeed, that is the expressly stated purpose of
this teaching of Deisseroth '880: to deliver the nanoparticles to these
neurons, which are normally contacted by chemicals ( odorants) entering the
nasal passage.
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We are similarly not persuaded by Appellant's argument with respect
to DiMauro. Di Mauro teaches:
The present invention is based upon the realization that the
cribriform plate portion of the nasal cavity is substantially
permeable to red light. Because of that permeability, therapeutic
doses of red light may be non-invasively administered from the
nasal cavity through the cribriform plate and through the OB of
the prefrontal cortex of the brain
DiMauro i-f 14. It is well known in the art that the axons of the olfactory
nerve neurons pass through the cribiform plate of the ethmoid bone to form
connections with neurons in the olfactory bulb, which is a part of the brain.
See, e.g., A.B. Butler and W. Hodos, COMPARATIVE VERTEBRATE
NEUROANATOMY: EVOLUTION AND ADAPTATION 485 (1996). Consequently,
red light that shined from the nasal cavity and into the olfactory bulb (i.e.,
brain) through the cribiform plate is necessarily delivered to the brain via the
olfactory nerves by means of the nasal mucosa. We consequently affirm the
Examiner's rejection of claim 7.
Claim 12
Issue
Appellant argues the Examiner erred because the combined references
neither teach nor suggest that "application of light pulses or ultrasound
energy to the target cell at the site causes an increase in the number of cells
in vivo," as recited in claim 12. App. Br. 10.
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Analysis
Appellant argues that, even assuming arguendo, that the method of
Olson, Greenberg, Deisseroth '880, and DiMauro would necessarily result in
an increased number of cells in vivo, as the Examiner finds, claim 12
requires that the increase in the number of cells be caused by the application
of light pulses or ultrasound energy, which is not taught by the combination
of the cited references. App. Br. 10.
We are not persuaded. DiMauro expressly teaches the delivery of
pulsed red light to the cribiform plate of the ethmoid bone. DiMauro i-f 73.
Furthermore, DiMauro teaches:
The general concept of repairing brain cells through red
light irradiation is also well supported by the literature. Wollman,
Neural. Res. 1998, July 20(5) 470-2 reports that providing daily
3.6 J/cm2 doses of red light from a He-Ne laser to cortex explants
resulting in caused a significant amount of sprouting of cellular
processes outgrowth. Wollman concludes that the irradiation
induces neurite processes sprouting and improves nerve tissue
recovery. Similarly, Wollman, Neural. Res. 1996 October. 18(5)
467-70 reports the enhanced migration and massive neurite
sprouting of cultured rat embryonal brain cells subject to an 8
minute dose of a 0.3 mW, He-Ne laser. Therefore, the red light
of the present invention may further cause repair and
regeneration of damaged neuronal cells
Di Mauro i-f 15. De Mauro also teaches: "In some embodiments, the red
light irradiation is delivered in a continuous manner. In others, the red light
irradiation is pulsed in order to reduce the heat associated with the
irradiation." Id. at i-f 73. Furthermore, DiMauro teaches several mechanisms
by which red light could promote or cause migration, repair, and
regeneration of cells in vivo. See id. at i-fi-149---64, 68-71. We therefore agree
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with the Examiner that a person of ordinary skill in the art would
understand, from the teachings of DiMauro that pulsed red light delivered
can cause an increase in the number of cells in vivo.
Claim 20
Issue
Appellant argues the Examiner erred because the combined cited prior
art neither teaches nor suggests that the complex further comprises a cell
penetrating agent that enhances or imparts penetration of the complex into
the target cell, the cell penetrating agent selected from the group consisting
of a cell-penetrating peptide (CPP), an activatable cell-penetrating peptide
(ACPP), a member of a streptavidin-biotin pair, an immunoglobulin, a
member of a cell-specific antibody-antigen pair, and combinations thereof as
required by the claim. App. Br. 10.
Analysis
Appellant first repeats the arguments presented supra in Section A,
viz., that Olson does not teach uptake of the quantum dots into cells and that
Greenberg teaches introduction of a plasmid into the cell via a viral vector.
App. Br. 10-11.
We do not find these arguments persuasive for the reasons we have
explained. Olson expressly teaches that its QDs can be taken up into cells
and, further, teaches that its complex comprises:
Still in other embodiments, the compos1t10n further
comprises a bio-compatible protein, PEG lipids or other suitable
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material, biofunctional material, formed of, for example, biotin,
streptavadin, adhesion proteins
Within these embodiments, in some instances the bio-compatible
protein comprises an adhesion protein. Such proteins include, but
are not limited to, individual amino acids, small peptides,
antibodies including human, animal, humanized, monoclonal,
and chimeric antibodies used to target various cells and cellular
structures, as well as the various classes of antibodies such as
IgG, IgM, IgA, IgM, and IgD.
Olson i-f 10 (emphases added). Olson thus expressly teaches streptavidin and
biotin (which are well known in the art has having high affinity for each
other) and immunoglobulins as part of its complexes, as required by claim
20.
Appellant next argues that the combined cited prior art neither teaches
nor suggests the step of stimulating the complex with light under conditions
sufficient to introduce the at least one G-protein and/or opsin-family gene
into the target cell, or stimulation of the complex by light delivered to the
brain via the olfactory nerves by means of the nasal mucosa. App. Br. 11-
13. We have also addressed this argument in Section A, and we find it
similarly not persuasive with respect to this rejection. We consequently
affirm the Examiner's rejection of the claims on this ground.
D. Rejection of claims 1-8, 10-12, 22-25, and 32 over Olson, Greenberg,
Deisseroth '880, DiMauro, and Deisseroth
Appellant repeats the arguments made with respect to the claims in
Sections A and C, supra, arguing further that Deisseroth does not cure the
alleged deficiencies of the remaining cited prior art references. App. Br. 13-
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14. For the reasons we have explained, we similarly reject the claims on
these grounds.
E. Rejection of claims 1-8, 10-12, 22-25, and 30-32 over Olson,
Greenberg, Deisseroth '880, DiMauro, and Wang
Appellant relies upon the same arguments presented supra, and argues
that Wang fails to cure the alleged deficiencies of other cited prior art. App.
Br. 14--15. As we have explained, we are not persuaded by Appellant's
arguments with respect to the alleged inadequacies of the combination of
Olson, Greenberg, Deisseroth '880, and DiMauro, and we consequently
affirm the Examiner's rejection of the claims upon this ground.
DECISION
The Examiner's rejection of claims 1-8, 10-12, 14, 20-25 and 30-32
as unpatentable under 35 U.S.C. § 103(a) is affirmed.
The Examiner's rejection of claims as unpatentable under the
judicially-created doctrine of obviousness-type double patenting is affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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