Office Action 1: Non-Final Rejection (2025-01-30)
Rejection types: Double Patenting

CLAIMS:
Claims
1\. A polypeptide comprising an amino acid sequence at least 95% identical to the amino acid sequence set forth in SEQ ID NO: 11, wherein the polypeptide comprises an alanine or glutamine substitution at position 47 and an alanine or glutamine substitution at position 354.
2\. The polypeptide of claim 1, wherein the polypeptide comprises an amino acid sequence at least 96% identical to the amino acid sequence set forth in SEQ ID NO: 11, wherein the polypeptide comprises an alanine or glutamine substitution at position 47 and an alanine or glutamine substitution at position 354.
3\. The polypeptide of claim 1, wherein the polypeptide comprises an amino acid sequence at least 97% identical to the amino acid sequence set forth in SEQ ID NO: 11, wherein the polypeptide comprises an alanine or glutamine substitution at position 47 and an alanine or glutamine substitution at position 354.
4\. The polypeptide of claim 1, wherein the polypeptide comprises an amino acid sequence at least 98% identical to the amino acid sequence set forth in SEQ ID NO: 11, wherein the polypeptide comprises an alanine or glutamine substitution at position 47 and an alanine or glutamine substitution at position 354.
5\. The polypeptide of claim 1, wherein the polypeptide comprises an amino acid sequence at least 99% identical to the amino acid sequence set forth in SEQ ID NO: 11, wherein the polypeptide comprises an alanine or glutamine substitution at position 47 and an alanine or glutamine substitution at position 354.
6\. The polypeptide of claim 1, wherein the polypeptide comprises: (a) an alanine substitution at position 47 and position 354; (b) an alanine substitution at position 47 and a glutamine substitution at position 354; (c) a glutamine substitution at position 47 and position 354; or (d) a glutamine substitution at position 47 and an alanine substitution at position 354.
7\. The polypeptide of claim 1, wherein the polypeptide comprises the amino acid sequence set forth in any one of SEQ ID NOs: 283, 286, 295, and 298.
8\. A nucleic acid molecule encoding the polypeptide of claim 1.
9\. A nucleic acid molecule encoding the polypeptide of claim 2.
10\. A nucleic acid molecule encoding the polypeptide of claim 3.
11\. A nucleic acid molecule encoding the polypeptide of claim 4.
12\. A nucleic acid molecule encoding the polypeptide of claim 5.
13\. A nucleic acid molecule encoding the polypeptide of claim 6.
14\. A nucleic acid molecule encoding the polypeptide of claim 7.
15\. A recombinant virus expressing the polypeptide of claim 1.
16\. A recombinant virus expressing the polypeptide of claim 2.
17\. A recombinant virus expressing the polypeptide of claim 3.
18\. A recombinant virus expressing the polypeptide of claim 4.
19\. A recombinant virus expressing the polypeptide of claim 5.
20\. A recombinant virus expressing the polypeptide of claim 6.
21\. A recombinant virus expressing the polypeptide of claim 7.
22\. A composition comprising the polypeptide of claim 1.
23\. A composition comprising the polypeptide of claim 2.
24\. A composition comprising the polypeptide of claim 3.
25\. A composition comprising the polypeptide of claim 4.
26\. A composition comprising the polypeptide of claim 5.
27\. A composition comprising the polypeptide of claim 6.
28\. A composition comprising the polypeptide of claim 7.

OFFICE ACTION:
DETAILED ACTION
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 .
Double Patenting NSDP
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA  as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 11, and 12 of U.S. Patent No. 12091434. Although the claims at issue are not identical, they are not patentably distinct from each other because both are drawn to a polypeptide with a percent identity to the same SEQ ID# 11 having at least one mutation of Q or A at positions 47 or 354. The application has 95%-99% identity in claims 1-6. Patent claim 4 allows the combination of 47 and 354 as in application claim 6. For claim 7, the SEQ ID#s 283, 286, 295, and 298 are SEQ ID#11 with the 4 possible mutants as outlined in claim 1 and listed in claim 6.  The application at claims 8-14 and 15-21 has nucleic acid or viral vector of the expressing the polypeptide, the patent has those at claims 11 and 12.
Thus, the claims are anticipated.
Claims 22-28 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 4 of U.S. Patent No. 1091434. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 22-28 are drawn to a composition of the peptide of patent claim 1.
A composition comprising the polypeptide is obvious over the peptide itself because peptides are known in compositions.
Thus, the claims are obvious.
Citation of closest Prior art:
Finkelshtein et al. (2013 PNAS vol 110, #18, pp 7306-7311, from IDS) teach VSV proteins but does not teach or make obvious the specific mutations claimed.
Conclusion

APPLICANT REBUTTAL: REMARKS
I.
Status of
the Application
Claims 1-28 are pending in the application.
Favorable reconsideration of the subject application is respectfully requested in view of the following remarks. II.
Non-Statutory Obviousness-Type Double Patenting
Claims 1-21 stand rejected on the ground of nonstatutory obviousness-type double patenting as allegedly being unpatentable over claims 1, 11, and 12 of U.S. Patent No. 12,091,434.
Claims 22-28 stand rejected on the ground of nonstatutory obviousness-type double patenting as allegedly being unpatentable over claims 1 and 4 of U.S. Patent No. 12,091,434.
Applicant respectfully disagrees. However, solely to advance prosecution, Applicant is filing a terminal disclaimer herewith. III.
Conclusion

NEXT OFFICE ACTION: 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 .
EXAMINER'S AMENDMENT
An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee.
Authorization for this examiner’s amendment was given in an interview with Pei Wu on 2/20/25.
The application has been amended as follows:
Page 1, paragraph 0002 line 4 was amended as follows:
1445888 bytes in size.
Conclusion

CITED REFERENCE SUMMARIES: Ref US12091434: Claims:
1. An isolated non-naturally occurring protein comprising an amino acid sequence at least 90% identical to the amino acid sequence set forth in SEQ ID NO: 1 or a homolog thereof, wherein the homolog thereof comprises an amino acid sequence set forth in any one of SEQ ID NOs: 3, 5, 7, 9, 11, and 13,
wherein the protein comprises an amino acid substitution at one or more of positions 47 and 354 of SEQ ID NO: 1, or at one or more position(s) equivalent to positions 47 and 354 of SEQ ID NO: 1 in any one of SEQ ID NOs: 3, 5, 7, 9, 11, and 13, and
wherein the protein retains the ability to induce membrane fusion and does not interact with LDL membrane receptor.
2. The isolated non-naturally occurring protein according to claim 1, wherein the protein comprises one of the following amino acid sequences:
SEQ ID NOs: 15-17;
SEQ ID NOs: 21-23;
SEQ ID NOs: 27-29;
SEQ ID NOs: 33-35;
SEQ ID NOs: 39-41;
SEQ ID NOs: 45-47; and
SEQ ID NOs: 51-53.
3. The isolated non-naturally occurring protein according to claim 1, wherein the amino acid at position 47 or at position 354, or at both positions 47 and 354 of SEQ ID NO: 1 or at equivalent position(s) of the homolog thereof is substituted by an amino acid selected from the group consisting of A, G, F and Q.
4. The isolated non-naturally occurring protein according to claim 1, comprising amino acid substitutions at positions 47 and 354 of SEQ ID NO: 1 or at equivalent position(s) of the homolog thereof.
5. The isolated non-naturally occurring protein according to claim 1, further comprising an amino acid substitution at position 8 and/or at position 209 of SEQ ID NO:
1 or at equivalent position(s) of the homolog thereof.
6. The isolated non-naturally occurring protein according to claim 1, further comprising an amino acid substitution at position 8 of SEQ ID NO: 1 or at equivalent position of the homolog thereof substituted by any amino acid except Q or Y.
7. The isolated non-naturally occurring protein according to claim 1, further comprising an amino acid substitution at position 209 of SEQ ID NO: 1 or at equivalent position of the homolog thereof substituted by any amino acid except H.
8. The isolated non-naturally occurring protein according to claim 1, wherein said protein comprises any one of the amino acid sequences set forth in SEQ ID NOs: 57-154.
9. The isolated non-naturally occurring protein according to claim 1, further comprising an insertion of a heterologous peptide at position 1 or between the amino acids at positions 351 and 352 of SEQ ID NO: 1 or at equivalent position(s) of the homologous protein thereof, wherein the heterologous peptide comprises a part of a ligand or a nanobody that binds a membrane protein expressed on a target cell.
10. The isolated non-naturally occurring protein according to claim 9, wherein the heterologous peptide is at least a part of a ligand that binds a cellular receptor expressed on a target cell.
11. A nucleic acid molecule encoding the isolated non-naturally occurring protein of claim 1.
12. A recombinant virus expressing the isolated non-naturally occurring protein of claim 1.
13. A recombinant virus comprising the nucleic acid molecule of claim 11.
14. A eukaryotic cell containing or expressing the non-naturally occurring protein of claim 1, or containing the nucleic acid molecule of claim 11, or infected by the recombinant virus of claim 12.
15. The isolated non-naturally occurring protein according to claim 9, wherein the heterologous peptide comprises an anti-HER2 nanobody, an anti-MUC18 nanobody, or an anti-PD1 nanobody.
Ref US1091434: Claims:
l. The combination of a plurality of generators, each having a central opening therethrough; a burner mounted below each of said openings and discharging its flames therethrough; means including superheating conduits for conducting vaporized fuel from one generator to the burner of another generator; and a fluid fuel supply for said superheating conduits.
2. The combination of a plurality of generators, each having a central opening therethrough; a burner mounted below each of said openings, and discharging its flames upwardly therethrough; means including superheating conduits for conducting vaporized fuel from one generator to the burner of another generator; and means for supplying said superheating conduits with vaporized fuel, each of said superheating conduits inclining downwardly from its source of fluid fuel supply from one generator toward said other generator.
3. The combination of a pair of generators, each having a central opening therethrough; a burner disposed in alinement with each of said openings and adapted to discharge its flames therethrough; a vaporizing conduit forming a part of each of said generators, and adapted to be heated by said flames; an oil supply for each said vaporizing conduits; and means including superheating conduits leading from the vaporizing conduit of one of said generators toward the burner of said other generator.
4. The combination of a pair of generators, each having a central opening therethrough; a burner for each of said generators disposed in alinement with its central opening; a vaporizing conduit formed in the wall of each said generators adjacent its complementary opening; an oil supply pipe for each of said vaporizing conduits; a pair of superheating conduits connected at one of their ends, respectively, to one of said vaporizing conduits, and slightly inclined downwardly toward the opposite genorator; and secondary conduits connecting said superheating conduits with said burners.
5. The combination of a pair of generators, each having a central opening therethrough; a burner for each of said openings and discharging its flame therethrough; a
vaporizing conduit formed in the wall of each of said generators adjacent its complementary opening and adapted to be heated by the flame passing theret-ln'ough; a secondary conduit formed in the wall of each of said generators and communicating at one end with its complementary burner; a pair of superheating conduits each connected at one of their ends with the vaporizing conduit of one of said generators, and at their other end connected with the secondary conduit of said other generator; and oil inlet pipes leading to said vaporizing conduits.
6. The combination of a. pair of gener-V ators, each having a substantially central opening passing therethrough; a vaporizing conduit formed in the wall of each of said generators and extending longitudinally of its central opening; a burner for each of said openings and discharging its flame therethrough; a secondary spirally disposed conduit formed in the wall of each of said generators, leading at its lower end to its complementary burner and at its upper end terminating at a slight distance below the top of its complementary vaporizing conduit; a pair of superheating conduits each connected at one of their ends with the vaporizing conduit of one of said generators, and at their other end connected with the upper end of the spirally-disposed conduit of said other generator; and oil inlet pipes leading to said vaporizing conduits.
7. The combination of a pair of generators each having a substantiall central vertical opening extending therethrough; a vaporizing conduit formed in the wall of each of said generators and extending 1011- gitudinally of its central opening; an oil inlet pipe leading to each of said vaporizing conduits; a secondary conduit spirally formed in the wall of each of said generators; a depending hollow nipple communicating with the lower end of each of said secondary conduits; a curved elbow threaded in the lower end of each of said nipples and extending beneath its complementary opening, a burner tip for each of said elbows; a fiamepan suspended from each of said elbows; and a superheatin conduit ex tending from said vaporizing conduit of each one of said generators to said spiral conduit of the opposite generator.