Ex Parte Woda et alDownload PDFPatent Trial and Appeal BoardJan 5, 201813071793 (P.T.A.B. Jan. 5, 2018) Copy Citation 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. 13/071,793 03/25/2011 Juliana Megan Woda ATY-0008US 4711 26294 7590 01/09/2018 TAROLLI, SUNDHEIM, COVELL & TUMMINO L.L.P. 1300 EAST NINTH STREET, SUITE 1700 CLEVELAND, OH 44114 EXAMINER VISONE, THOMAS J ART UNIT PAPER NUMBER 1651 NOTIFICATION DATE DELIVERY MODE 01/09/2018 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): rkline @ tarolli. com docketing@tarolli.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JULIANA MEGAN WODA, ANTHONY E. TING, and NICHOLAS A. LEHMAN1 Appeal 2017-004195 Application 13/071,793 Technology Center 1600 Before RICHARD M. LEBOVITZ, JEFFREY N. FREDMAN, and JOHN G. NEW, Administrative Patent Judges. NEW, Administrative Patent Judge. DECISION ON APPEAL appellants state that the real party-in-interest is ABT Holding Company. App. Br. 3 Appeal 2017-004195 Application 13/071,793 SUMMARY Appellants file this appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 14-17 and 19-21 as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Verfaillie et al. (US 2006/0008450 Al, January 12, 2006) (“Verfaillie”), Banfi et al. (WO 2007/132012 Al, November 22, 2007) (“Banff’), and R.M. Stricter et al., Cancer CXC Chemokine Networks and Tumour Angiogenesis, 42 Euro. J. Cancer 768-778 (2006) (“Stricter”). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. NATURE OF THE CFAIMED INVENTION Appellants’ invention is directed to methods for treating pathological conditions that can be improved by providing angiogenesis and, generally, to provide angiogenesis by administering cells that express and/or secrete one or more pro-angiogenic factors. Abstract. REPRESENTATIVE CLAIM Claim 14 is representative of the claims on appeal and recites: 14. A method to provide angiogenesis in a subject in need thereof, said method comprising administering to said subject, in a therapeutically effective amount and for a time sufficient to achieve a therapeutic result requiring angiogenesis, human cells that secrete the pro-angiogenic factors VEGF, CXCLS, and 1L- 8, said cells having been assayed for secretion of the pro- angiogenic factors by a method consisting essentially of assaying for secretion of VEGF, CXCL5 and IL-8, and found to secrete said factors, the cells being non-embryonic stem, non-germ cells that express one or more of oct4, telomerase, rex-1, or rox-1 2 Appeal 2017-004195 Application 13/071,793 and/or can differentiate into cell types of at least two of endodermal, ectodermal, and mesodermal germ layers. App. Br. 28. ISSUES AND ANALYSES We adopt the Examiner’s findings of fact and conclusion that the appealed claims are obvious over the combined prior art cited by the Examiner. We address the arguments raised by Appellants below. Issue 1 Appellants argue that the Examiner erred in finding that the transitional phrase “consisting essentially of’ can be construed in this claim as meaning the transitional phrase “comprising.” App. Br. 12. Analysis The Examiner notes that Appellants have amended the present claim language to recite: “by a method consisting essentially of.”2 Final Act. 2. 2 Claim 14 previously recited, in relevant part: “said cells having been assayed for secretion of the pro-angiogenic factors consisting essentially of VEGF, CXCL5 andIL-8, and found to secrete said factors....” See Claim Amend., filed February 17, 2015 (emphasis added). The Examiner rejected this language in a Final Office Action of August 14, 2014, stating: Here, it is unclear if the instant claims include additional pro- angiogenic factors because assaying for additional pro- angiogenic factors would not materially affect the basic and novel characteristics of the claimed method. The same angiogenesis would be provided in a patient if one of ordinary 3 Appeal 2017-004195 Application 13/071,793 The Examiner finds that Appellants’ claims and Specification fail to provide a clear indication of what constitutes the basic and novel characteristics of skill in the art assayed the same cells for either three or four angiogenic factors. For example, how would the resulting angiogenesis be different if one of ordinary skill in the art assayed for VEGF, CXCL5, and IL-8 in MAPCs and then administered the MAPCs compared to assaying for VEGF, CXCL5, IL-8, and CXCL1 in the same MAPCs and then administering the MAPCs? Stated another way, one of ordinary skill in the art could assay for various additional pro-angiogenic factors without altering the resulting angiogenesis. Thus, providing for angiogenesis would seemingly be unaltered by assaying for the secretion of three, four, or five pro-angiogenic factors. As such, for purposes of this Action, the instant claims will be broadly interpreted to include assaying for various pro- angiogenic factors. Final Act. at 3—4, August 14, 2014. Claim 14 originally recited: A method to provide angiogenesis in a subject in need thereof, said method comprising administering to said subject, in a therapeutically effective amount and for a time sufficient to achieve a therapeutic result requiring angiogenesis, cells that express and/or secrete one or more pro-angiogenic factors, said cells having been assayed for expression and/or secretion of one or more pro-angiogenic factors and found to express and/or secrete said factors, the cells being non-embryonic stem, non germ cells that express one or more of oct4, telomerase, rex-1, or rox-1 and/or can differentiate into cell types of at least two of endodermal, ectodermal, and mesodermal germ layers. Claims filed September 14, 2012. 4 Appeal 2017-004195 Application 13/071,793 their claimed invention. Id. at 4. The Examiner finds that, whereas Appellants’ Specification has provided a definition for the term “comprising,” it does not provide a definition of what is encompassed by the term “consisting essentially of.” Id. (citing Spec. 69-70). The Examiner therefore interprets the transitional phrase “consisting essentially of’ to mean “comprising.” Id. Appellants argue that both the claims and their Specification provide a clear indication of what constitute the basic and novel characteristics of the claimed invention and, as such, show what the essential features are. App. Br. 16. According to Appellants, each of the independent claims recites a method consisting essentially of assaying immune cells for the secretion of pro-angiogenic factors VEGF, CXCL5, and IL-8. Id. Appellants assert that it is also evident from the Specification that an assay for the specific combination of VEGF, CXCLS, and IL-8 is necessary and sufficient to indicate the angiogenic potential of the recited cells. App. Br. 16. Appellants point to paragraph [0170] of the Specification3, which discloses, in relevant part: “The inventors identified multiple pro-angiogenic factors secreted by MultiStem4 including VEGF, CXCLS, and IL-8 and found all three factors are necessary for MultiStem[-]induced angiogenesis.” Appellants also point to paragraph [0177]5, which discloses: “Multiple pro- angiogenic factors secreted by MultiStem were identified including VEGF, 3 Misidentified as paragraph [0177] in text. App. Br. 16. 4 MultiStem is Appellants’ trade name for a cell preparation based on the MAPCs (multipotent adult progenitor cells of U.S. Patent No. 7,015,037. See Spec. ^ 79 5 Misidentified as paragraph [0184] in text. Id. at 17. 5 Appeal 2017-004195 Application 13/071,793 CXCL5 and IL-8; and immunodepletion studies demonstrated that all three factors are necessary for MultiStem[-]induced angiogenesis.” Appellants therefore contend that the basic and novel characteristics of the claimed invention are dear from the claims and the Specification of the present application. The Examiner responds that the case law of our reviewing court, as well as MPEP § 2111.03, requires that, absent a clear indication in the Specification or claims of what the basic and novel characteristic actually are, “consisting essentially of’ should be construed as equivalent to “comprising.” Ans. 10 (citing, e.g., PPG Indus, v. Guardian Indus. Corp., 156 F.3d 1351 (Fed. Cir. 1998); AK Steel Corp, v. Sollac and Ugine, 344 F.3d 1234 (Fed. Cir. 2003); In re Bhogaraju v. Janakirama-Rao, 317 F.2d 951 (C.C.P.A. 1963)). The Examiner finds Appellants have failed to offer any clear indication in either the claims or the Specification of what actually constitutes the basic and novel characteristics of claimed method and, as such, the transitional phrase “consisting essentially of’ was appropriately construed as being equivalent to transitional term “comprising.” Id. We are not persuaded by Appellants’ arguments. The Federal Circuit has held that the transitional phrase “consisting essentially of’ typically: [PJrecedes a list of ingredients in a composition claim or a series of steps in a process claim. By using the term “consisting essentially of,” the drafter signals that the invention necessarily includes the listed ingredients and is open to unlisted ingredients that do not materially affect the basic and novel properties of the invention. A “consisting essentially of’ claim occupies a middle ground between closed claims that are written in a “consisting of’ format and fully open claims that are drafted in a “comprising” format. 6 Appeal 2017-004195 Application 13/071,793 PPG, 156 F.3d at 1354. The disputed limitation of claim 14 recites: “said cells having been assayed for secretion of the pro-angiogenic factors by a method consisting essentially of assaying for secretion of VEGF, CXCL5 and IL-8.” In other words, the claim recites that assays for secretion of VEGF, CXCL5 and IL-8 are required to be performed by those practicing the claimed method, but also that other assays may be performed insofar as they do not materially affect the basic and novel characteristics of Appellants’ claimed invention. Appellants contend that the novel and basic characteristic of their claimed invention is that the three pro-angiogenic factors recited in the claim are “necessary and sufficient” for angiogenesis. See App. Br. 16. Based upon the passages of the Specification cited by the Examiner, and the remaining disclosures of the Specification, we agree with Appellants’ assertion that the Specification discloses that the three factors are necessary for angiogenesis, although we are not persuaded by Appellants’ assertion that the Specification discloses that three factors are alone sufficient. See, e.g., Spec, 45^18. However, reading Appellants’ claim, in view of the disclosures of the Specification, we interpret the scope of the claim to embrace, inter alia, administering non-embryonic stem, non-germ cells that have been assayed for the secretion of VEGF, CXCL5, and IL-8. Appellants have presented no evidence or argument with respect to what additional assays or procedures might constitute a means of materially affecting the basic and novel properties of Appellants’ invention. Consequently, we construe the transitional claim phrase “consisting essentially of,” as including the assays for VEGF, CXCL5 and IL-8 and also including any other assay or procedure 7 Appeal 2017-004195 Application 13/071,793 that does not impede, or otherwise materially affect, the performance of the three cytokine assays recited expressly in the claim. Issue 2 Appellants argue the Examiner erred in finding that Verfaillie teaches a method to provide angiogenesis comprising administering the claimed cells. App. Br. 17. Analysis Appellants contend that the passages of Verfaillie relied upon by the Examiner present different possible mechanisms of action by which multipotent adult progenitor cells (“MAPCs”) may contribute to new tissue. App. Br. 18 (citing, e.g., Verfaillie ^ 76). According to Appellants, these teachings are insufficient to support the Examiner’s conclusion that “Verfaillie explicitly and distinctly provides for the administration of MAPCs for the promotion of angiogenesis and the treatment of various cardiac disorders.” Id. (quoting Final Act. 10). Rather, Appellants argue, the teachings of Verfaillie are merely speculative and discusses various possible mechanisms of action. Id. at 19. We are not persuaded by Appellants’ argument. The test of obviousness is: “what the combined teachings of the references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (C.C.P.A. 1981). Verfaillie expressly teaches, inter alia: MAPCs, as well as damaged cardiac tissues, secrete cytokines that have beneficial effects, including recruitment of reparative cells (e.g., MAPCs, hematopoietic, mesenchymal stem cells) to the damaged tissue by “homing” mechanisms and 8 Appeal 2017-004195 Application 13/071,793 modulation of inflammatory processes. Homing of cells that can advantageously repair myocardium, such as MAPCs, can be preferentially induced by co-administration of cytokines. MAPCs can also promote angiogenesis, which further enhances tissue repair. Verfaillie ^ 191. Verfaillie also teaches: Administered MAPCs may contribute to generation of new tissue by differentiating into specific cells, such as cardiomyocytes, in vivo.... Additionally, MAPCs may also provide benefit by increasing capillary density and stimulating angiogenesis. This may be achieved by production of angiogenic factors, such as VEGF, or by differentiation of the MAPCs and inclusion in new vessel tissue, or both. Verfaillie ^ 76 (emphasis added). Finally, Verfaillie also teaches: “MAPCs expressed mRNA for the cytokines BMP1, BMP5, VEGF, HGF, KGF, MCP1; the cytokine receptors Flkl, EGF-R, PDGF-Rla, gpl30, LIF-R, activing-Rl and -R2, TGFR-2, BMP-R1 A; the adhesion receptors CD49c, CD49d, CD29; and CD10.” Verfaillie Tj 124 (emphasis added). VEGF (vascular endothelial growth factor) is well known in the art as a factor promoting cellular differentiation. Id. at 87. We therefore agree with the Examiner that the teachings of Verfaillie would have been prima facie sufficient to suggest to a person of ordinary skill in the art that administration of MAPCs would be effective for the promotion of angiogenesis and the treatment of various cardiac disorders by repairing myocardium. Issue 3 Appellants argue the Examiner erred in finding that the MAPCs taught by Verfaillie inherently secrete CXCL5 and IL-8 and also fails to 9 Appeal 2017-004195 Application 13/071,793 teach or suggest that the MAPCs were assayed for VEGF secretion. App. Br. 20. Analysis Appellants argue that: (1) as argued supra, Verfaillie does not teach that MAPCs provide angiogenesis, so a person of ordinary skill would not have concluded that the MAPCs must inherently secrete the three pro- angiogenic factors: VEGF CXCL5 and IL-8; (2) even if Verfaillie teaches that the cells do provide angiogenesis, this would not have suggested to the person of ordinary skill in the art that they do so by way of secreting the three factors; and (3) even if the cells do inherently express the three factors, that fact was unknown in the art at the time of Appellants’ invention, so such expression of the factors is immaterial to the question of motivation. App. Br. 20. Appellants further dispute the Examiner’s finding that that “Verfaillie also discloses that MAPCs can be assayed for VEGF expression.” App. Br. 20 (quoting Final Act. 5). Appellants contend that assaying for VEGF mRNA is not the same as assaying for secretion of the protein and that not all mRNAs proceed into the cytoplasm from the nucleus, or are used in the synthesis of a protein that is secreted extracellulary. Id. According to Appellants, the expression by MAPCs of VEGF mRNA, as taught by Verfaillie, was not further tested to see whether or not it correlated with protein expression, secretion, or biological activity. Id. at 21. Appellants argue further that, whereas Verfaillie may teach that MAPCs express VEGF mRNA that, by itself, does not mean that MAPCs necessarily secrete VEGF, much less CXCL5 and IL-8. Id. 10 Appeal 2017-004195 Application 13/071,793 The Examiner responds that MAPCs inherently secrete VEGF, regardless of whether they are assayed for VEGF secretion. Ans. 13. The Examiner agrees with Appellants that Verfaillie teaches that MAPCs express mRNA for VEGF, which is one of the pro-angiogenic factors recited in the claims on appeal. Id. The Examiner finds that the MAPCs of Verfaillie, which are identical to those claimed by Appellants, necessarily secrete the same factors; i.e., identical populations of MAPCs would inherently secrete VEGF, CXCL5, and IL-8. Id. We are not persuaded by Appellants’ arguments. As we have explained supra, we are not persuaded by Appellants that Verfaillie neither teaches nor suggests that MAPCs promote angiogenesis. Verfaillie also teaches that MAPCs express mRNA for various cytokines, including VEGF. Verfaillie ^ 124. Although we agree with Appellants that Verfaillie does not expressly teach that MAPCs synthesize or secrete VEGF, such an express teaching is not required to establish obviousness. Rather, the test for obviousness is “what the combined teachings of the references would have suggested to those of ordinary skill in the art.” Keller, 642 F.2d at 425. We agree with the Examiner that the teaching of mRNA expression of VEGF by MAPCs would have suggested to a person of ordinary skill in the art that MAPCs synthesize and secrete VEGF. Appellants argue that the expression of VEGF mRNA does not necessarily mean that VEGF is synthesized or secreted by the expressing cells, but they offer no evidence that the MAPCs of Verfaillie do not express VEGF. Absent objective evidence, Appellants’ assertion constitutes attorney argument, to which we accord little probative weight. See In re De 11 Appeal 2017-004195 Application 13/071,793 Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (Arguments and conclusions unsupported by factual evidence carry no evidentiary weight). Furthermore, Appellants disclose in their Specification that the MAPCs taught by Verfaillie and claimed by Appellants were well known in the art and are substantially identical.6 See Verfaillie 27-28; Spec. 77- 79, 115-116. Appellants’ Specification also discloses that MAPCs secrete VEGF, CXCL5, and IL-8. Spec. Tj 170. The fact that Appellants have discovered an allegedly previously- unknown property of MAPCs (i.e., secretion of the three recited pro angiogenesis growth factors) does not render their claimed invention patentably distinct over the prior art. Where ... the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. . .. Whether the rejection is based on ‘inherency’ under 35 U.S.C. § 102, on ‘prima facie obviousness’ under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products. In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (citation and footnote omitted); see also Titanium Metals Corp. v. Banner, 778 F.2d 775 (Fed. Cir. 1985) (holding that if a composition is the same as the prior art, it is immaterial what properties they have or who discovered the properties 6 See, e.g., Spec. ^ 79: “The term ‘MultiStem®’ [the subject cells of Appellants’ claimed invention] is the trade name for a cell preparation based on the MAPCs of U.S. Patent No. 7,015,037.” Verfaillie is one of the named inventors of the ’037 patent. 12 Appeal 2017-004195 Application 13/071,793 because the composition must necessarily exhibit the properties)). In other words: “[w]hen the claimed compositions are not novel they are not rendered patentable by recitation of properties, whether or not these properties are shown or suggested in the prior art.” In re Spada, 911 F.2d 705, 709 (Fed. Cir. 1990). Despite the fact that MAPCs were not known, at the time of invention, to secrete the recited pro-angiogenic factors necessary to promote angiogenesis, Verfaillie teaches that MAPCs were nevertheless known to promote angiogenesis, and Appellants’ discovery of the molecular factors underlying that promotion does not mean that the cells were not inherently secreting them prior to Appellants’ discovery. This burden is properly placed on Appellants and Appellants have adduced no evidence to show that secretion of the pro-angiogenic factors was not inherent to the promotion of angiogenesis by MAPCs taught by the prior art and the fact that the promoters themselves were unknown does not render Appellants’ claims patentably distinct over the teachings of the prior art. Issue 4 Appellants argue the Examiner erred because there is no guidance in the cited prior art that would have motivated the skilled artisan to assay for the specific combination of pro-angiogenesis factors. App. Br. 21. Analysis The Examiner finds that Banfi teaches a method similar to that of Verfaillie and Appellants’ claims in which “a discrete threshold in VEGF dosage exists, below which normal stable capillaries are induced and above 13 Appeal 2017-004195 Application 13/071,793 which angioma growth occurs.” Final Act. 7 (citing Banfi 1). The Examiner finds the teachings of Banfi would have motivated a person of ordinary skill in the art to use routine laboratory techniques known at the time of invention to determine whether VEGF is secreted by MAPCs and to ensure VEFG levels optimally promoted angiogenesis while avoided complications such as angiomas. Id. The Examiner also finds Stricter teaches that VEGF, CXCL5, and IL- 8, are well-known in the art as potent promoters of angiogenesis. Final Act. 7 (citing Stricter 768-769; Table 1). The Examiner therefore finds that a person of ordinary skill in the art would be motivated by Stricter to assay for the secretion and validate the potency of these factors in the MAPCs of Verfaillie to advantageously optimize the therapeutic efficacy of the method taught by Verfaillie. Id. Appellants argue that Banfi does not teach the specific combination of factors recited in the claims, and that Stricter teaches a list of 10 known angiogenic factors. App. Br. 22. However, argue Appellants, Stricter does not provide any guidance or teaching that would lead a person of ordinary skill in the direction of the specific claimed combination assay. Id. Appellants dispute the Examiner’s conclusion that it would have been obvious to assay for the three recited angiogenic factors, arguing that if a person of ordinary skill had been motivated to test the pro-angiogenic potential of MAPCs, it would have been essential to assay all known pro- angiogenic factors, and not just the specific claimed combination. App. Br. 22-23. Appellants contend that all of the factors taught by Stricter would have been thought, at the time of the claimed invention, that each factor 14 Appeal 2017-004195 Application 13/071,793 would have been equally important in an assay to assess pro-angiogenic potential. Id. at 23. The Examiner responds that the claims on appeal are not limited to assaying only for VEGF, CXCL5, and IL-8 secretion, but, rather, encompass assaying for the secretion of VEGF, CXCL5, IL-8 as well as any additional pro-angiogenic factors. Ans. 14. The Examiner states that Appellants are therefore attempting to improperly impart a preferred, narrow embodiments from their Specification into the more broadly-worded claims. Id. at 14-15. The Examiner finds the prior art of record sets forth an explicit motivation to assay for VEGF, CXCL5, and IL-8 secretion as well as the secretion of other pro-angiogenic factors. Id. at 15. We agree with the Examiner. Banfi teaches that it was known in the art that: “Vascular Endothelial Growth Factor (VEGF) is an attractive candidate being investigated to achieve therapeutic angiogenesis in ischemic diseases.” Banfi 1. Stricter teaches: “The angiogenic CXC chemokine family members include CXCL1, CXCL2, CXCL3, CXCL5, CXCL6, CXCL7 and CXCL8 [i.e., IL-8] (Table 1). The angiogenic CXC chemokines interacting alone or with other angiogenic factors can function in a direct, parallel, or serial manner to promote angiogenesis.” Stricter 769. We agree with the Examiner’s conclusion that a person of ordinary skill would be motivated to assay for all of these pro-angiogenic factors when contemplating the administration of MAPCs to promote angiogenesis, e.g., in view of Verfaillie’s teaching of the significance of secretion of cytokines and other factors in the therapeutic efficacy of MAPCs and the mentioned teachings of Banfi and Stricter. 15 Appeal 2017-004195 Application 13/071,793 We also agree with the Examiner’s conclusion that the language of Appellants’ claims are not limited to assaying for the three pro-angiogenic factors recited in the claims. Appellants’ Specification has shown that these three factors are necessary to promote angiogenesis (see Spec. 170, 177). However, even were we to adopt Appellants’ preferred claim language that the assays “consist essentially of’ assaying for secretion of VEGF, CXCL5 and IL-8 (see discussion, supra), Appellants have not provided us with any evidence that assaying for any (or all) of the other pro-angiogenic factors taught by Stricter would somehow affect the novel and basic characteristics of Appellants’ claimed invention. Simply put, we do not see how conducting any additional assays in addition to those recited would affect Appellants’ claimed invention, nor do Appellants enlighten us in this respect. We consequently agree with the Examiner’s conclusion that a person of ordinary skill would have been motivated to combine the references to arrive at Appellants’ claimed invention. Issue 5 Appellants argue that the Examiner erred because a person of ordinary skill would have had no reasonable expectation of success in combining the references. App. Br. 23. We disagree. As we have explained supra, Verfaillie expressly teaches that “MAPCs can also promote angiogenesis, which further enhances tissue repair” and that MAPCs express mRNA for cytokines, including VEGF. Verfaillie 191, 124. Banfi teaches that VEGF (which Verfaillie suggests is produced by MAPCs) is known in the art as an attractive cytokine candidate for therapeutic angiogenesis. Banfi 1. Stricter teaches that other cytokines, including CXCL5 and IL-8 are known 16 Appeal 2017-004195 Application 13/071,793 to be effective in promoting angiogenesis. We agree with, and adopt, the Examiner’s conclusion that a person of ordinary skill in the art, upon apprehending the teachings of Verfaillie, Banfi, and Stricter, would have had a reasonable expectation of success in assaying the MAPCs of Verfaillie for the secretion of the recited pro-angiogenic factors recited in the claims. We consequently affirm the Examiner’s rejection of the claims. DECISION The Examiner’s rejection of claims claims 14-17 and 19-21 as unpatentable under 35 U.S.C. § 103(a) is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 17 Copy with citationCopy as parenthetical citation