Sigma-Aldrich Information Substantive Preliminary Movement No. 1 to Deny Broad Precedence Profit to Its Earliest-filed Provisional Utility

By Kevin E. Noonan

Sigma-AldrichOn December third, Senior Get together Sigma-Aldrich filed its Substantive Preliminary Movement No. 1 in Interference No. 106,133 (which names the Broad Institute, Harvard College, and MIT (collectively, Broad) as Junior Get together), asking the Patent Trial and Attraction Board to disclaim Broad good thing about its U.S. Provisional Utility No. 61/736,527, filed December 12, 2012 (termed “P1”), pursuant to 37 C.F.R. § 41.121(a)(1) and S.O. ¶¶ 121 and 208.4.2.  The idea for Sigma-Aldrich’s movement is that this utility doesn’t disclose a constructive discount to observe of an embodiment throughout the scope of Depend 1 of the interference as declared.  Sigma-Aldrich particularly contends that the P1 utility doesn’t present both than Broad’s inventors had achieved a CRISPR-Cas9 system that cleaved a focused DNA molecule and altered the expression of the gene product of that cleaved molecule, nor did the P1 utility disclose introducing Cas9 protein right into a eukaryotic cell with just one linked nuclear localization sign (“NLS”) that resulted in CRISPR-mediated gene modifying (Sigma-Aldrich asserts that the entire P1 disclosure concerned Cas9 modified with 2 NLS sequences).

After setting out the standard necessities for precedence profit with regard to satisfying the written description requirement of 35 U.S.C. § 112(a), and the {qualifications} and traits of an individual of abnormal ability within the artwork in December 2012, the temporary highlights sure parts of the Depend Sigma-Aldrich argue should not adequately disclosed in Broad’s P1 utility:

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Sigma-Aldrich argues that Broad merely recognized the existence of CRISPR-mediated DNA cleavage and didn’t set up ensuing modifications in gene expression.  Parsing the P1 disclosure, Sigma-Aldrich argues that the P1 specification itself units forth definitions concerning the which means of altering gene expression as recited within the Depend, and distinguishes this from modifying the sequence of a focused gene, quoting the specification as reciting within the various: ” a modification in a number of nucleic acid sequences related to a illness, or an animal or cell by which the expression of a number of nucleic acid sequences related to a illness are altered.”  These distinctions are supported by parts of the P1 specification that describe embodiments the place a goal polynucleotide is altered by introduction of a heterologous sequence, and different embodiments the place expression of a focused sequence is modified by rising or reducing its expression (i.e., with out essentially altering the focused gene’s expression).  Sigma-Aldrich additional asserts that these distinctions are supported by P1 disclosure referring to the assays used to detect modifications in expression that differ from assays used to detect modifications within the sequence.  Sigma-Aldrich then argues that Broad’s P1 utility reviews no “direct analyses of expression of any focused gene product,” whether or not with or with out CRISPR-mediated modifying.  And the one knowledge offered within the P1 utility referring to gene expression (Figures 1B, 6, and 13) was involved with expression of the parts of the CRISPR-Cas9 gene modifying system (SpCas9 and RNase III).  Nor would the expert employee have apprehended any demonstration of utilizing CRISPR in a eukaryotic cell to change gene expression:

• “[non-homologous end joining (]NHEJ restore of Cas9-mediated cleavage created some nucleotide insertions/deletions (or “indels”) to the emx1, pvalb, and th genes, which had been detected not directly by a Surveyor assay;”

• “deletion of a 118-bp sequence of a human emx1 gene because of cleaving two goal websites (albeit noting that “it will be not possible to foretell the character of the ultimate mRNA or protein that might have been produced, or whether or not the expression of the mRNA or EMX1 protein had been altered in any respect, e.g., whether or not the expression of the gene product had elevated or decreased);” and

• “one instance of gene modifying the place a 12-bp sequence comprising two restriction enzyme websites changed the cease codon within the emx1 gene [but the data would have only established the (“minor”) change in sequence but not necessarily expression, for which there was no experimental disclosure].”

Sigma-Aldrich additional argued that in these cases there was no experimental knowledge within the P1 provisional utility disclosing modifications within the stage of expression in, inter alia, the emx1 gene (Sigma-Aldrich illustrates the precept that altering sequence might or might not alter expression with concerning to producing a library of expressed proteins in yeast comprising C-terminal inexperienced fluorescent protein fusions, by which addition of this tag didn’t considerably alter gene expression.)

Sigma-Aldrich additionally argued that the Broad P1 precedence doc didn’t disclose Cas9 proteins altered by introduction of solely a single NLS sequence, as recited within the Depend:
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Not solely does the P1 provisional utility not disclose Cas9 altered by introduction of solely a single NLS, Sigma-Aldrich argued that the specification described failure to attain CRISPR cleavage in a eukaryotic cell utilizing such single NLS embodiments of Cas9.  Consequently Sigma-Aldrich notes that “the entire examples disclosed in Broad P1 use two NLSs for concentrating on Cas9 to the eukaryotic cell’s nucleus for gene modifying.”  Sigma-Aldrich emphasised the P1 disclosure of experiments investigating nuclear localization of three SpCas9 constructs, whereby:

[E]ach [was] expressed as a fusion protein with the florescent protein marker, GFP, at their C-terminus, and with: (1) an NLS hooked up to the N-terminus of SpCas9 (i.e., NLS-SpCas9-GFP); (2) an NLS hooked up to the C-terminus of the GFP (i.e., SpCas9-GFP-NLS); and (3) an NLS hooked up to each N- and C termini of SpCas9-GFP (i.e., NLS-SpCas9-GFP-NLS, which was known as 2xNLS12SpCas9)

In these experiments, Sigma-Aldrich argued, solely species (3) (having 2 NLS sequences) had been profitable at reaching CRISPR cleavage in a eukaryotic cell.  This conclusion was supported within the temporary by illustrations that “[a]ll CRISPR-Cas gene modifying examples disclosed in Broad P1 use[d] two NLSs:

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And that solely constructs having 2 NLSs had been useful:

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Sigma-Aldrich concedes that Broad’s P1 utility accommodates disclosure associated to single NLS-bearing Cas9 proteins.  Sigma-Aldrich phrases this disclosure “speculative,” because of the absence of any experimental demonstrations displaying profitable CRISPR-Cas9 cleavage utilizing single NLS-bearing Cas9 species.

In contrast to standard Preliminary Movement observe as Senior Get together Sigma-Aldrich doesn’t want the Board to grant this movement to vary any evidentiary burdens, however success would improve the time between Sigma-Aldrich’s earliest precedence date and its personal, which might have its personal benefits.

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