Regeneron Pharmaceuticals v Kymab Limited
[2017] APO 37
•19 July 2017
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Regeneron Pharmaceuticals v Kymab Limited [2017] APO 37
Patent Application: 2011266843
Title:Animal models and therapeutic molecules
Patent Applicant: Kymab Limited
Opponent: Regeneron Pharmaceuticals
Delegate: Dr B. Akhurst
Decision Date: 19 July 2017
Hearing Date: Written submissions filed on 4, 18 and 26 April 2017.
Catchwords: PATENTS – opposition under section 104 – allowability under section 102(2) considered – opposition successful – amendment refused – no award of costs.
Representation: Patent attorney for the applicant: Griffith Hack.
Patent attorney for the opponent: FB Rice.
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2011266843
Title:Animal models and therapeutic molecules
Patent Applicant: Kymab Limited
Date of Decision: 19 July 2017
DECISION
I allow the amendment to the statement of grounds and particulars requested by Regeneron.
The opposition is successful and I refuse the amendments.
I make no award of costs.
REASONS FOR DECISION
Background
Patent application 2011266843 was filed by Kymab Limited (Kymab) on 7 January 2011 under the provisions of the PCT, claiming an earliest priority date of 17 June 2010. The application was advertised as accepted on 30 April 2015.
Regeneron Pharmaceuticals, Inc. (Regeneron) filed a Notice of Opposition to grant of a patent on 30 July 2015 and a statement of grounds and particulars (SGP) on 30 October 2015. Evidence in support, answer and reply in the section 59 opposition was completed by 4 July 2016.
Subsequently, Kymab proposed amendments to the specification under section 104 on 3 August 2016, 7 September 2016 and 25 October 2016. The grant of leave to amend was advertised under reg. 10.5(2) on 8 December 2016. On 8 February 2017, Regeneron filed a Notice of Opposition to allowance of the amendments, followed by a SGP on 8 March 2017. Neither party sought to file evidence in the s 104 opposition, and the matter was set for a hearing by written submissions.
On 4 April 2017, Regeneron requested amendments to its SGP in the s104 opposition and advised, in effect, that it relied on the particulars in the original and subsequently filed SGP for its written submissions in the s104 opposition.
On 18 April 2017, Kymab filed submissions in answer to the matters particularised in the SGP and proposed amendments, and confirmed on 12 May 2017 that it did not object to the SGP amendment request. In the circumstances, I consider it reasonable to allow Regeneron’s request to amend the SGP in the s104 opposition.
Regeneron filed submissions in reply on 26 April 2017.
This decision relates only to Regeneron’s opposition to Kymab’s request to amend the specification under section 104.
Issue estoppel
Kymab’s submissions for the hearing are substantially that, in deciding this matter, I should disregard Regeneron’s submissions where they had already been considered by the examining delegate who granted leave to amend the specification. However, administrative decisions by the Commissioner do not give rise to an issue estoppel and consequently I am not estopped from deciding all of the matters raised in this opposition.
The law
The request for examination of the patent application was filed before 15 April 2013 and as a consequence the substantive amendments of the Patents Act 1990 (the Act) brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 do not apply to the present application. Instead, the relevant provisions of the Act in this matter is subsection 102(2) as it existed prior to the introduction of the ‘Raising the Bar’ Act, which is set out below:
(2)An amendment of a complete specification is not allowable after the relevant time if, as a result of the amendment:
(a)a claim of the specification would not in substance fall within the scope of the claims of the specification before amendment; or
(b)the specification would not comply with subsection 40(2) or (3).
The ‘relevant time’ for the purpose of s 102(2)(a) is after the specification has been accepted[1]. Subsections 40(2) and 40(3) of the Act as they apply to the present case are set out below:
(2) A complete specification must:
(a) describe the invention fully, including the best method known to the applicant of performing the invention; and
(b) where it relates to an application for a standard patent – end with a claim or claims defining the invention.
(3)The claim or claims must be clear and succinct and fairly based on the matter described in the specification.
[1] Subsection 102(2A) of the Act.
The specification and amendments
The specification is titled “Animal models and therapeutic molecules”. Relevant to the claimed subject matter, the invention is described as relating to non-human animals and cells containing exogenous human immunoglobulin gene DNA, methods for their production and antibodies and antibody chains produced by such animals[2].
[2] Specification page 1, para 1.
The accepted specification contained 20 claims. The proposed amendments increase this to 39 claims. The accepted claims and the claims as proposed to be amended are attached to this decision as Annexes A and B, respectively.
The opposition
As amended, Regeneron’s SGP identifies the grounds of opposition as non compliance of the amendments with paragraphs 102(2)(a), and 102(2)(b) with respect to clarity and fair basis.
Paragraph 102(2)(b)
Lack of clarity
The requirements of s 40(3) that a claim is clear will be satisfied if a third party could ascertain, without difficulty, whether or not what he or she proposes to do would fall within the ambit of the claim (Monsanto Co v Commissioner of Patents[3]). A claim does not lack clarity because it uses inexact language or is difficult to construe, as long as it provides a workable standard suitable to the intended use (Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd[4]).
[3] (1974) 48 ALJR 59 at 60
[4] [1980] HCA 9; (1980) 144 CLR 253 at 274 [46]
Regeneron identified proposed claims 2, 4, 9, 12-13, 18, 22, 26 and 33-35 as lacking clarity.
Claims 2 and 4
2. A mouse cell obtained from the mouse of claim 1, wherein the cell is a B cell or hybridoma
4. A rat cell obtained from the rat of claim 3, wherein the cell is a B cell or hybridoma.
Regeneron construed the reference in claims 2 and 4 to a cell “obtained from” the mouse or rat, to indicate that the cell is directly obtained from the relevant animal and submitted that it is not clear how a hybridoma is a cell “obtained” from a mouse or rat.
Hybridomas are immortalised hybrid cell lines that produce monoclonal antibodies, and are formed by fusion of a single antibody-producing cell to a tumour (myeloma) cell[5]. Thus, the only logical construction of claims 2 and 4 insofar as it relates to the hybridoma cell is that this cell is indirectly obtained by fusing a B cell, or other transgenic antibody-producing cell, derived from the mouse or rat with a myeloma cell.
[5] See for example Henderson’s Dictionary of Biology, 13th Edition, 2005.
I am satisfied that the scope of claims 2 and 4 would be clear to the skilled addressee.
Claim 9
A mouse cell, or a mouse comprising said mouse cell, according to any one of claims 1, 2 and 5-8 wherein the mouse cell is a hybrid of C57BL/6, a hybrid of M129 such as 129/SV, or a hybrid of BALB/c.
Regeneron submitted that claim 9 is ambiguous as to the origin of the hybrid mouse cell and whether it is in fact derived from the C57BL/6, M129, 129/SV and BALB/c mouse strains. In this regard, Regeneron referred to the passage in the description of the specification on which Kymab based its amendment request, which states:
“In one aspect the cell is a cell from a mouse strain selected from C57BL/6, M129 such as 129/SV, BALB/c, and any hybrid of C57BL/6, M129 such as 129/SV, or BALB/c.”[6]
[6] Page 21, penultimate paragraph of the specification.
Insofar as proposed claim 9 refers to a mouse cell, it is ultimately dependent on claim 2 which defines the cell as a mouse B cell or a hybridoma obtained from the mouse specified in claim 1. None of the claims to which claim 9 is appended impose any limitation on the mouse strain. Accordingly, I construe proposed claim 9 as encompassing a mouse B cell or hybridoma cell according to claim 2, either isolated from or comprised within the mouse of claim 1. In this regard, I note that once a hybridoma has been generated, it may be grown in vitro in a cell culture, or in vivo in ascites fluid in the mouse peritoneal cavity.
The terms of claim 9 require the mouse B cell, and the B or other antibody-producing cell from which a hybridoma is obtained, to be a hybrid of any of the specified mouse strains.
Claim 9 is clear.
Claims 12 and 13
12. A cell according to any one of claim 2 and claims 4-9 which is immortalised.
13. A cell according to claim 12 which is immortalised by fusion to a tumour cell to provide an antibody producing cell, or made by direct cellular immortalisation.
Regeneron considered claims 12 and 13 to lack clarity on the basis that it is not clear how you can have a non-immortalised hybridoma, or alternatively, how a hybridoma which is already immortalised can be immortalised again.
Not inconsistent with Regeneron’s submission, I construe claim 12 as limiting the scope of claims 2 and 4 and dependent claims to (i) a hybridoma and (ii) a B cell that has been immortalised by other means. Claim 13 identifies the means by which the cell is immortalised.
Regeneron submitted the phrase in claim 13 “made by direct cellular immortalisation” is not clear, because in the absence of a definition in the specification it is not clear what this process relates to or how it is achieved. However, I believe the person skilled in the art would apply the plain meaning of this phrase, and construe claim 13 as requiring the cell to be engineered in a manner that overcomes replicative senescence. Whether or not a cell is subject to senescence can be assessed by determining whether it is capable of proliferating for prolonged periods in vitro. As a consequence, I am satisfied that claims 12 and 13 provide a workable standard suitable to its intended use.
Claim 18
Use according to claim 16 comprising providing:
(i) a nucleic acid encoding the antibody, or a part thereof, or
(ii) sequence information from which a nucleic acid can be expressed encoding the antibody or a part thereof to be produced.
Claim 18 is ultimately dependent on claims 14 or 15 via claim 16. Claims 14 and 15 relate to the use of a mouse or rat, respectively, having defined genomic characteristics and antibody expression profiles, for producing a repertoire of chimaeric antibodies or chimaeric heavy and light chains having a mouse or rat constant region and a human variable region. Dependent claim 16 adds that the use comprises immunising the mouse or rat with a desired antigen and recovering antibody specific to the antigen.
The recovered antigen-specific antibody in claim 16 provides the antecedent for “the antibody or a part thereof” in claim 18. Such a construction is consistent with the following statement on page 29 of the description, on which Kymab based its amendment request:
“The invention also relates to a method for making an antibody, or part thereof, the method comprising providing:
(i) a nucleic acid encoding an antibody, or a part thereof, obtained according to the present invention; or
(ii)sequence information from which a nucleic acid encoding an antibody obtained according to the present invention, or part thereof, can be expressed to allow an antibody to be produced.”
Relevant to Regeneron’s submission that this statement does not in any way refer to the use of a transgenic mouse or rat, I consider this feature implicit in the references to an antibody “obtained according to the present invention”.
Insofar as Regeneron considered the term “providing” in claim 18 to be unclear in the absence of any definition in the application, I am confident the skilled addressee of the specification would readily appreciate that a nucleic acid molecule can be provided in physical form in accordance with part (i) of claim 18, or alternatively by way of written information identifying its nucleic acid sequence, which constitutes “sequence information” in accordance with part (ii) of the claim, this latter facilitating preparation of the nucleic acid molecule encoding the antibody or antibody part, in order that these can be produced. I construe claim 18 accordingly.
Regarding Regeneron’s submission that if the antibody is recovered from the mouse or rat in claim 16, it is unclear how a nucleic acid encoding said antibody or sequence information is now provided, I am confident that once an antibody with a desired property is identified, that it would have been well within the capacity of the skilled addressee to determine its amino acid sequence and provide a corresponding nucleic acid coding sequence.
Claim 18 is clear.
Claim 22
Use according to claim 21 wherein the cell line is immortalised by fusion to a tumour cell to provide an antibody producing cell line, or is made by direct cellular immortalisation.
Claim 22 is ultimately dependent on claims 14 or 15, via claim 21 and either one of claims 19 or 20. Claims 14 and 15 define the use of a mouse or rat, respectively, with the specified genomic characteristics and antibody expression profile, for producing a repertoire of chimaeric antibodies or chimaeric heavy and light chains. Claims 19 and 20 require the use to further comprise “obtaining a cell line derived from” or “growing a cell line from”, respectively, a cell of the mouse or rat, the cell line comprising inserted rearranged human V, D, J. Claim 21 requires the cell line to be immortalised. In this context, a reasonable construction of dependent claim 22 is that it defines the means by which the cell line of claim 21 is immortalised. This construction is consistent with the meaning I have given to the same words in claim 13.
Unlike claims 2 and 4, the cell lines encompassed by claims 19-22 expressing the transgenic antibodies or heavy and light chains are not limited to any particular cell type. Insofar as the claims may be ambiguous in this regard, the specification confirms in the following paragraph on page 8 of the description that the DNA encoding the antibody heavy and/or light chains may be sited and expressed from a part of the genome outside of the endogenous immunoglobulin loci:
“In one aspect the host non-human mammal constant region for forming the chimaeric antibody may be at a different (non endogenous) chromosomal locus. In this case the inserted human DNA, such as the human variable VDJ or VJ region(s) may then be inserted into the non-human genome at a site which is distinct from that of the naturally occurring heavy or light constant region. The native constant region may be inserted into the genome, or duplicated within the genome, at a different chromosomal locus to the native position, such that it is in a functional arrangement with the human variable region such that chimaeric antibodies of the invention can still be produced.”
It follows that where the transgenic antibodies (or heavy and light chains) are expressed from a site outside the host mouse or rat immunoglobulin loci, the antibody-expressing cells need not be B cells.
Insofar as Regeneron considers the phrase “direct cellular immortalisation” unclear, I have construed the phrase in the context of claim 12, and for the same reasons I do not consider it to introduce a lack of clarity to claim 22.
Claim 26
A method for making an antibody, or part thereof, the method comprising providing
(i) a nucleic acid encoding an antibody, or a part thereof, the antibody being obtained according to the method of any one of claim 23-24; or
(ii) sequence information from which a nucleic acid can be expressed to allow an antibody or a part thereof to be produced, the antibody being obtained according to the method of any one of claim 23-24.
Regeneron submitted that the terms “providing” and “sequence information” in this claim are not clear. I have construed these terms in the context of claim 18 and the same construction applies in claim 26.
Claims 33-35
Regeneron submitted that a number of phrases in claims 33-35 are not clear because they lack antecedent basis.
One such phrase is the reference in claims 34 and 35 to “the human heavy chain DNA”. However, the preamble to each of these claims refers to insertion into the mouse ES genome of a number of human IgH V, D and J regions, which I am confident the skilled addressee would construe as providing the antecedent for the subsequent references to human heavy chain DNA.
Other phrases Regeneron identified as lacking an antecedent contain terms that are commonly used in the art and their meaning would be abundantly clear to the skilled addressee of the specification. For example, insofar as claims 33 and 34 refers to “the fully host mouse specific antibodies” this phrase identifies specific antibodies encoded in their entirety by the endogenous immunoglobulin loci in the host mouse. The phrase “the last, 3’, mouse J region” in claims 34 and 35 precisely identifies a unique site in a mouse immunoglobulin gene locus. I am satisfied that these terms do not render the claims lacking clarity.
I will address the balance of Regeneron’s clarity submissions in the context of each claim.
Claim 33
A mouse according to claim 1, when made by a method comprising
insertion of multiple DNA fragments into a mouse ES cell DNA target,
wherein the insertion is of a DNA fragment of >100kB into a host chromosome in a stepwise fashion,
and wherein during the stepwise insertion the 5' end of the upstream (5') DNA insert is increased in length,
wherein the method comprises insertion of a first DNA sequence into the target, the sequence having a DNA vector portion and a first sequence of interest (X1); insertion of a second DNA sequence into the vector portion of the first sequence, the second DNA sequence having a second sequence of interest (X2) and a second vector portion; and excising vector sequence DNA separating X1 and X2 to provide a contiguous X1X2, or X2X1 sequence within the target, wherein X1 and X2 are joined together directly without intervening sequences,
wherein X1 and X2 comprise human VDJ or VJ DNA.
the method further comprising modifying the mouse genome to prevent expression of the fully host mouse specific antibodies in the mouse by inactivation of all or a part of the host mouse Ig loci, wherein said modifying is achieved by insertion of one or more site specific recombinase sites into the genome and then use of these sites in recombinase-mediated excision of all or a part of the mouse Ig locus.
Claim 33 defines the mouse of claim 1, when that mouse is made by a method which ultimately results in a DNA fragment of >100kB encoding a human VDJ or VJ sequence being inserted into a region of DNA (the DNA target) in a chromosome (the host chromosome) in a mouse embryonic stem (ES) cell. This is achieved by stepwise (i.e. sequential) insertion of multiple (i.e. two or more) DNA fragments into the targeted region of the host chromosome, by means of DNA sequences comprising a vector sequence and human VDJ or VJ DNA (the V(D)J DNA being the first, second and any further sequences of interest). Once the second or any subsequent DNA sequence has been inserted, the vector portion separating the sequences of interest is excised, leaving contiguous sequences of interest.
Claim 33 requires that “during the stepwise insertion the 5’ end of the upstream (5’) DNA insert is increased in length”. In its plain meaning, this phrase requires that once the first DNA fragment is inserted into the target, each additional DNA fragment is inserted at the upstream end (i.e. the 5’ end) of the DNA already inserted, thus extending the length of the inserted DNA in the 5’ direction. This requirement is consistent with the subsequent text in which the insertion of first and second DNA sequences containing the first and second sequences of interest (X1 and X2, respectively), ultimately results in contiguous 5’-X2X1-3’ sequences. However, it is inconsistent with the alternative embodiment which ultimately generates contiguous 5’-X1X2-3’ sequences in the target region of the host chromosome. Thus, an ambiguity exists in claim 33 which is not resolved by having regard to the body of the specification. Most relevantly, the following passage in the description refers to the contiguous X1X2 sequence but does not identify the insertion site of X2 with respect to X1, and therefore encompasses increasing the length of the insert in both the 5’ or 3’ direction:
“In one aspect the method comprises insertion of a first DNA sequence into a target, the sequence having a DNA vector portion and a first sequence of interest (X1); insertion of a second DNA sequence into the vector portion of the first sequence, the second DNA sequence having a second sequence of interest (X2) and a second vector portion; and then excising any vector sequence DNA separating X1 and X2 to provide a contiguous X1X2, or X2X1 sequence within the target. There is optionally insertion of a further one or more DNA sequences, each DNA sequence having a further sequence of interest (X3, ... ) and a further vector portion, into the vector portion of the preceding DNA sequence, to build up a contiguous DNA fragment in the target.”[7]
[7] Specification, page 23.
I am of the opinion that the skilled addressee would not know whether the scope of claim 33 should be constrained by the statement that “during the stepwise insertion the 5’ end of the upstream (5’) DNA insert is increased in length”, or alternatively whether that feature can be considered non-limiting and the claim construed more broadly to encompass the provision of both X2X1 and X1X2 contiguous DNA fragments. For this reason, I find claim 33 to lack clarity.
Regarding the phrase in claim 33 “wherein X1 and X2 comprise VDJ or VJ DNA”, I construe this phrase as requiring both the X1 and X2 sequences of interest to comprise VDJ-encoding DNA, or alternatively both encode VJ DNA. As noted by the opponent, to construe the claim otherwise would be illogical.
In view of the nature of the text appearing after the full stop in claim 33, which requires the method to further comprise inactivation of the endogenous immunoglobulin loci in a specified manner, I am satisfied that the person skilled in the art would recognise the full stop as an error and would construe claim 33 as including this last feature.
Claim 33 encompasses the insertion of one site-specific recombinase site into the genome and its use in recombinase-mediated excision of all or a part of the mouse immunoglobulin locus. I note that the description refers to the use of a single loxP site to invert the non-human VDJ region to a centromeric or telomeric locus[8], an embodiment which is not within the scope of claim 33 which requires excision of, all or part of the relevant loci. Notwithstanding, I do not consider the reference in claim 33 to one site specific recombinase site to necessarily render the claim lacking clarity, because the skilled addressee would understand that more than one such site is required for recombinase-mediated excision and he or she would construe the claims accordingly.
[8] Description page 23 para 1.
Claim 33 does not explicitly identify the region of the genome into which the site-specific recombination sites must be inserted. However, mouse and rat genome sequences were publicly available before the priority date of the application[9]. Since the result to be achieved is specified in the claim (i.e. excision of all or a part of the mouse immunoglobulin loci), I believe appropriate regions would have been readily apparent to the skilled addressee at the priority date of the specification.
[9] See for example page 5 of the specification, penultimate paragrapgh.
In summary, claim 33 is not clear.
Claim 34
A mouse according to claim 1, when made by a method comprising inserting into a mouse ES cell genome a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of the host mouse heavy chain constant region; wherein
(a) the insertion of the human heavy chain DNA is made between the mouse constant region and the last, 3', mouse J region;
(b) the insertion is such that the mouse is able to produce a repertoire of chimaeric antibodies or heavy chains having a mouse constant region and a human variable region; and the method comprises modifying the mouse genome to prevent expression of the fully host mouse specific antibodies in the mouse by inactivation of all or a part of the host mouse mammal Ig loci, wherein said modifying is achieved by insertion of one or more site specific recombinase sites into the genome and then use of these sites in recombinase-mediated excision or inversion of all or a part of the mouse Ig locus.
Proposed claim 34 defines the mouse of claim 1, when made by a method in which human heavy chain V, D and J regions are inserted into a mouse embryonic stem cell genome, upstream of the host mouse constant region. Part (a) of claim 34 identifies the insertion site for this human DNA, while part (b) further characterises the method by which the mouse is made and characteristics of the mouse produced. I do not consider the references to insertion into the genome of one site specific recombinase site to render claim 34 lacking clarity, particularly since claim 34 encompasses its use for inversion of all or a part of the mouse immunoglobulin locus.
Regeneron considered the phrase “modifying the mouse genome to prevent expression of the fully host mouse specific antibodies in the mouse by inactivation of all or part of the host mouse mammal Ig loci” to lack clarity because it is not clear which part of the host mouse mammal immunoglobulin loci needs to be inactivated to prevent expression of fully host mouse specific antibodies and how inactivation of only “a part” of the loci could achieve this. In my view, at the priority date it would have been routine in the art to manipulate a gene locus either in its entirety or in part (eg. by targeting regulatory elements required for gene expression) in order to alter its expression characteristics. Thus, in the absence of any evidence to the contrary, I am satisfied that the skilled addressee would be capable of identifying and executing strategies to produce the desired result across the full scope of claim 34. Since claim 34 requires any modification strategy to facilitate the production of chimaeric human-mouse antibodies, while preventing expression of fully host mouse specific antibodies, the skilled addressee would have no difficulty in ascertaining, whether or not what he or she proposes to do would fall within the scope of claim 34.
Regeneron submitted that it is not clear how a mouse could produce a repertoire of chimaeric antibodies when the mouse genome is modified such that all of the host mouse immunoglobulin locus is inactivated. Insofar as claim 34 is ambiguous in this regard, I note that the description discloses mice and cells in which only one allele has the inserted human DNA and in these embodiments the potential exists for expression of both the endogenous mouse antibodies (heavy and light chains) and the chimaeric human-mouse antibodies or heavy chains[10]. In this circumstance, the endogenous mouse allele can be inactivated in order that only the chimaeric human-mouse immunoglobulin allele is expressed[11]. Similarly, where the chimaeric antibodies are expressed from a site outside the endogenous mouse immunoglobulin loci[12], inactivation of both endogenous loci would achieve the same result.
[10] Description page 13 para 2 and page 37 para 4.
[11] Description page 37 para 4.
[12] Description, page 23.
I am satisfied that claim 34 is clear.
Claim 35
A mouse according to claim 1, when made by a method comprising inserting into a mouse ES cell genome a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of the host mouse heavy chain constant region; wherein
(a) the insertion of the human heavy chain DNA is made between the mouse constant region and the last, 3', mouse J region;
(b) the insertion is such that the mouse is able to produce a repertoire of chimaeric antibodies or heavy chains having a mouse constant region and a human variable region; and
(c) wherein the insertion process commences at a site where an initiation cassette has been inserted into the genome, providing a unique targeting region; wherein the insertion of a first DNA fragment into the initiation cassette is followed by insertion of a second DNA fragment into a portion of the first DNA fragment;
(d) and wherein during the stepwise insertion the 5' end of the upstream (5') DNA insert is increased in length.
Contrary to Regeneron’s submission, the reference in part (d) of proposed claim 35 to a “stepwise insertion” has antecedent basis in part (c) which refers to the insertion of a first, and then a second DNA fragment into the identified parts of the mouse ES cell genome.
I have construed the term “the 5’ end of the upstream (5’) DNA insert” in the context of claim 33, and it takes the same meaning in claim 35. In accordance with parts (c)-(d) of claim 35, once the first DNA fragment is inserted into the initiation cassette, the second and any additional DNA fragment(s) must be inserted at the upstream (5’) end of the DNA already inserted, in order to extend the length of the inserted DNA in the 5’ direction.
Regeneron considered claim 35 to lack clarity, construing it as referring to a mouse that has been made by process steps (a)-(d) that have not been carried out since they are drafted in the present tense. This submission has no merit and cannot succeed.
Fair basis
As the test for fair basis, the High Court in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd[13] (Lockwood) approved the words of Gummow J in Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd[14]:
“… the question is whether there is a real and reasonably clear disclosure in the body of the specification of what is then claimed, so that the alleged invention as claimed is broadly, that is to say in a general sense, described in the body of the specification.”
[13] [2004] HCA 58; (2004) 217 CLR 274 at [69].
[14] [1988] FCA 162 [54]; (1988) 81 ALR 79 at 95.
Regeneron identified proposed claims 12, 18 and 26 as lacking fair basis.
Claim 12
A cell according to any one of claim 2 and claims 4-9 which is immortalised.
Proposed claim 12 encompasses the mouse cell or rat cell of any one of claims 2 and 4-9 which is immortalised. Regeneron submitted that the immortalised cell of claim 12 lacks fair basis because the last para on page 21 of the specification, which Kymab relies on to support its amendment request, refers to an immortalised cell line and not cells in general.
Immortalised cell lines are derived from, and necessarily comprise, immortalised cells. The following statement on page 21 of the description provides a real and reasonably clear disclosure of both:
“The invention also relates to a cell line which is grown from or otherwise derived from cells as described herein, including an immortalised cell line. … The cell may be immortalised by fusion to a tumour cell to provide an antibody producing cell and cell line, or be made by direct cellular immortalisation.”
I am satisfied that the subject matter of proposed claim 12 is fairly based.
Claims 18 and 26
Regeneron submitted that without a definition in the specification, the reference in claims 18 and 26 to “sequence information” from which a nucleic acid can be expressed for producing an antibody is not fairly based on the application as filed.
Claims 18 and 26 are dependent on claims 16 and 23, respectively, these latter requiring immunisation of a mouse or rat according to earlier claims with a desired antigen and recovery of antigen-specific antibody. Each of claims 18 and 26 refer to an embodiment requiring the provision of “sequence information” from which a nucleic acid can be expressed to allow a desired antibody or a part of the antibody to be made.
On its face, the following passage on page 29 of the specification provides a real and reasonably disclosure of the use of sequence information to make an antibody or part of an antibody:
“The invention also relates to a method for making an antibody, or part thereof, the method comprising providing:
(i) …; or
(ii) sequence information from which a nucleic acid encoding an antibody obtained according to the present invention, or part thereof, can be expressed to allow an antibody to be produced.”
Insofar as Regeneron’s submissions under this ground are based on the term “sequence information” being unclear in the absence of a definition, I have construed this term above as referring to written information identifying a nucleic acid sequence, which facilitates the preparation of the corresponding nucleic acid molecule in physical form. The provision of nucleic acid sequence information in writing was common practice in the art well before the priority date and, as an example, I note that the present specification includes a sequence listing disclosing nucleic acid sequences in this manner.
Although the specification does not provide the nucleic acid sequence of any particular antibody, the invention in this case relates to a means for antibody discovery, rather than any particular antibody per se. In this context, I am satisfied that the body of the specification provides a real and reasonably clear disclosure of the use of “sequence information” to allow any antibody generated by the methods of claims 16 and 23 to be produced. Accordingly, the subject matter of claims 18 and 26 is fairly based.
Summary
The claims are fairly based. Only claim 33 as proposed to be amended lacks clarity.
Paragraph 102(2)(a)
Paragraph 102(2)(a) requires that the claims as proposed to be amended in substance fall within the scope of the claims of the specification before amendment. A practical test for determining the allowability of amendments in this context, is to ask whether an amendment makes anything an infringement which would not have been an infringement before the amendment[15].
[15] Bristol-Myers Squibb Company v Apotex Pty Ltd [2010] FCA 814 at [40]; AMP Incorporated v Commissioner of Patents (1974) 3 ALR 283 at 289-290.
Regeneron opposed proposed claims 19-22, 26 and 38 under this ground.
Claims 19-22
19. Use according to claims 14 or 15, wherein the use further comprises obtaining a cell line derived from a cell of the mouse or rat respectively, the cell line comprising inserted rearranged human V, D, J, optionally encoding an antibody encoded by V1-3 JH4 or V1-3 JH6.
20. Use according to claims 14 or 15, wherein the use further comprises growing a cell line from a cell of the mouse or rat respectively, the cell line comprising rearranged human V, D, J, optionally encoding an antibody encoded by V1-3 JH4 or V1-3 JH6.
21. Use according to claims 19 or 20 wherein the cell line is an immortalised cell line.
22. Use according to claim 21 wherein the cell line is immortalised by fusion to a tumour cell to provide an antibody producing cell line, or is made by direct cellular immortalisation.
Inserted DNA
Regeneron submitted that claim 19 introduces the feature of an “inserted” rearranged human V, D, J, thus extending the scope of this claim to any rearranged sequence from any source and not just those produced by in vivo rearrangement in the mouse or rat. Kymab responded that the person skilled in the art reading the claims as a whole would understand the reference in claim 19 to “the cell line comprising inserted rearranged human V, D, J” to refer to rearrangements of the human V, D and J regions previously inserted into the mouse genome.
Claims 14 and 15 in the proposed amendments are identical to accepted claims 9 and 10, and therefore what must be determined is whether the additional features in claim 19 makes anything an infringement that was not an infringement of the accepted claims.
Logically, human V, D, J nucleotide sequences present in a mouse genome must necessarily have been inserted and consequently I consider this feature to be implicit in the terms of claims 14 and 15 to which claim 19 is appended. Germline gene sequences comprise a plurality of human heavy chain V regions and one or more human D and J regions and therefore I construe parts (a) and (b) of claims 14 and 15 as defining the germline gene sequences in the mouse or rat genome. In the subsequent text, claims 14 and 15 require the mouse or rat to be capable of producing a repertoire of chimaeric antibodies or chimaeric heavy and light chains, and accordingly, require the mouse genome to comprise a chimaeric antibody chain gene locus having a rearranged VDJ sequence. Claim 19 requires the cell line to be derived from a cell of the mouse or rat having the inserted human VDJ DNA in this latter, rearranged state.
For the reasons provided above, I am satisfied that the reference to “inserted” rearranged DNA has an antecedent in claims 14 and 15, and does not extend the scope of claim 19 to the introduction of any rearranged human sequence from any source into the cell line. It follows that proposed claim 19 does not make anything an infringement that was not an infringement of the accepted claims.
Cell line
Noting that a claim to a process provides protection for a product of that process, Regeneron concluded that proposed claims 19-22 introduce the feature of a cell line, thus providing direct protection for a cell line derived from any cell in the mouse or rat, which was not previously included in the subject matter of the previous claims, which refer only to a B cell or hybridoma.
While the cells of accepted claims 2 and 4 are limited to a B cell or hybridoma, accepted claim 11 more broadly encompasses a method for producing an antibody or antibody chain involving immunising a mouse or rat according to claims 1, 3 or 5-8 and recovering a cell which is limited only in that it must produce an antibody or antibody heavy or light chain that is specific to a desired chain. Accepted claim 17 relevantly encompasses the recovered cell produced by the method of claim 11.
There is no explicit requirement in accepted claims 1, 3 and 5-8 that the mouse or rat has the transgenic immunoglobulin gene sequences sited within the host immunoglobulin loci. Insofar as the claims might be ambiguous in this regard, the broader construction of claim 11 is consistent with the following statement on page 20 of the specification:
“… methods of the invention can be used to insert human immunoglobulin variable region DNA together with constant region DNA from the host genome anywhere in the genome of a non-human host cell, allowing a chimaeric antibody chain to be produced from a site other than the endogenous heavy region. Any human heavy chain or light chain DNA construct contemplated above can be inserted into any desired position into the genome of a non-human host cell using the techniques described herein.”
I therefore construe accepted claim 17 as encompassing any cell producing the antibody or antibody chain, produced by a method according to any one of claims 11 to 14. In practice before the priority date, such a cell would typically have been maintained and propagated in a manner which effectively establishes “cell lines” from the original recovered cell. Thus, I am of the opinion that for practical purposes the person skilled in the art would construe the terms of the accepted claims to encompass both single cells and cell cultures of the claimed cells, the latter fulfilling the requirement for “cell lines” as presently claimed. This conclusion is not inconsistent with the following statement on page 21 of the specification:
“The invention also relates to a cell line which is grown from or otherwise derived from cells as described herein, including an immortalised cell line. The cell line may comprise inserted human V, D or J genes as described herein, either in germline configuration or after rearrangement following in vivo maturation. The cell may be immortalised by fusion to a tumour cell to provide an antibody producing cell and cell line, or be made by direct cellular immortalisation.”
I am satisfied that the introduction of proposed claims 19-22 does not make anything an infringement that would not have been an infringement before the amendment.
Claim 26
A method for making an antibody, or part thereof, the method comprising providing
(i) a nucleic acid encoding an antibody, or a part thereof, the antibody being obtained according to the method of any one of claim 23-24; or
(ii) sequence information from which a nucleic acid can be expressed to allow an antibody or a part thereof to be produced, the antibody being obtained according to the method of any one of claim 23-24.
Regeneron submitted that the subject matter of the accepted claims was limited to a method of producing an antibody by immunizing a mouse or rat according to earlier claims, and consequently it does not encompass the provision of a nucleic acid encoding an antibody or sequence information from which a nucleic acid can be expressed to allow the antibody to be produced.
Proposed claim 26 recites a method for making an antibody or part thereof, comprising providing a nucleic acid encoding an antibody obtained according to proposed claims 23-24, or a part thereof, or alternatively, sequence information from which a nucleic acid can be expressed to allow the antibody, or a part of the antibody to be produced.
Proposed claims 23 and 24 are identical to accepted claims 11-12, respectively. Accepted claim 11 encompasses a method for producing an antibody or antibody chain involving recovering a cell producing a specific antibody or antibody chain, after immunising a mouse or rat according to any one of claims 1, 3 or 5-8. Dependent on claim 11, accepted claims 12-13 require the method to further comprise humanisation of the antibody or antibody chain or generating antigen-specific derivatives of the antibody or antibody chain. Humanisation of antibodies and the generation of derivatives are typically performed at the DNA level in accordance with the description of the invention at pages 28-29 of the specification[16]. Thus, accepted claims 12 and 13 encompass the methods explicitly set out in proposed claim 26. It logically follows that claim 26 does not make anything an infringement which would not have been an infringement before the amendment.
[16] Page 28, second full para, and the para bridging pages 28-29.
Claim 38
A mouse cell when obtained from the mouse according to claim 37.
I accept Regeneron’s submission that the scope of proposed claim 38 extends to any mouse cell provided that it is obtained from a mouse according to claim 37. The question is whether this makes anything an infringement that would not have infringed the accepted claims?
Accepted claims 2 and 4 and dependant claims 5-8 and 14 encompass mouse cells or rat cells, respectively, which are B cells or hybridoma cells. Accepted claim 17 is broader, encompassing any cell type producing a relevant antibody or antibody chain, provided the cell is produced by a method according to any one of claims 11 to 14. Omnibus claim 20 narrows the subject matter of the earlier claims to substantially as described with reference to the examples and figures.
Proposed claim 38 encompasses a mouse cell when it is obtained from the mouse according to proposed claim 37. Proposed claim 37 defines a hybrid strain of mouse which is otherwise defined in terms of its genome and antibody expression profile in accordance with claim 1. It follows that all mice encompassed by claim 37, fall within the broader scope of accepted claim 1.
The mouse cells encompassed by claim 38 are not limited expressly or implicitly to those cells that express antibodies or an antibody chain, as were the cells encompassed by the accepted claims.
Nevertheless, the mouse of claim 37 falls within the scope of accepted claim 1, and any purpose to which such a mouse is put, including obtaining any one of its cells, would necessarily have infringed accepted claim 1. It follows that proposed claim 38 does not make anything an infringement that would not have been an infringement before the amendment.
Summary
The subject claims 19-22, 26 and 38 as proposed to be amended in substance falls within the scope of the claims of the specification before amendment.
Conclusion
The opposition is successful. Claim 33 as proposed to be amended does not comply with the requirements of subsection 102(2). The amendments will be refused.
Costs
Kymab submitted that given that the opposition is merely a re-statement of observations made previously (to the examiner) costs should be awarded against the opponent. Regeneron responded that in view of the applicant’s lack of submissions and the three amendment requests it made after the evidentiary periods had ended, costs should be awarded against the applicant.
Ordinarily in proceedings such as these, costs follow the event. Regeneron’s opposition has been successful. However, the particular basis on which I found one claim to lack clarity was not clearly articulated in Regeneron’s SGP, which served as its submissions. In this circumstance, I consider it appropriate that each party bear its own costs.
Barbara Akhurst
Delegate of the Commissioner of PatentsAnnex A – The accepted claims.
1. A mouse whose genome comprises:
(a) a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of a host non-human mammal constant region;
(b) one or more human Ig light chain kappa V regions and one or more human Ig light chain kappa J regions upstream of a mouse kappa constant region and optionally one or more human Ig light chain lambda V regions and one or more human Ig light chain lambda J regions upstream of a mouse lambda constant region;
wherein the mouse is able to produce a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a mouse constant region and a human variable region;
wherein the mouse genome comprises a chimaeric antibody chain locus, the locus encoding a chimaeric heavy chain; and
wherein the locus comprises a mouse constant region nucleotide sequence and a rearranged VDJ nucleotide sequence produced by in vivo rearrangement of a human V region, a human D region and a human J region;
the V region being a V1-3 segment; and
the mouse expressing more V1-3 JH4 or V1-3 JH6 antibodies than any of, individually, V1-JH1, V1-3 JH2, V1-3 JH3 or V1-3 JHS antibodies.
2. A mouse cell whose genome comprises:
(a) a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of a mouse constant region;
(b) one or more human Ig light chain kappa V regions and one or more human Ig light chain kappa J regions upstream of a mouse kappa constant region and optionally one or more human Ig light chain lambda V regions and one or more human Ig light chain lambda J regions upstream of a mouse lambda constant region;
wherein the mouse genome comprises a chimaeric antibody chain locus, the locus encoding a chimaeric heavy chain; and
wherein the locus comprises a mouse constant region nucleotide sequence and a rearranged VDJ nucleotide sequence produced by in vivo rearrangement of a human V region, a human D region and a human J region, the V region being a V1-3 segment;
the mouse expressing more V1-3 JH4 or V1-3 JH6 antibodies than any of, individually, V1‑3 JH1, V1-3 JH2, V1-3 JH3 or V1-3 JHS antibodies; and
wherein the cell is a B cell or hybridoma.
3. A rat whose genome comprises:
(a) a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of a rat constant region;
(b) one or more human Ig light chain kappa V regions and one or more human Ig light chain kappa J regions upstream of a rat kappa constant region and optionally one or more human Ig light chain lambda V regions and one or more human Ig light chain lambda J regions upstream of a rat lambda constant region;
wherein the rat is able to produce a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a rat constant region and a human variable region;
wherein the rat genome comprises a chimaeric antibody chain locus, the locus encoding a chimaeric heavy chain; and
wherein the locus comprises a rat constant region nucleotide sequence and a rearranged VDJ nucleotide sequence produced by the in vivo rearrangement of a human V region, a human D region and a human J region, the V region being a V1-3 segment; and
the rat expressing more V1-3 JH4 or V1-3 JH6 antibodies than any of, individually, V1-3 JH1, V1-3 JH2, V1-3 JH3 or V1-3 JH5 antibodies.
4. A rat cell whose genome comprises:
(a) a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of a rat constant region;
(b) one or more human Ig light chain kappa V regions and one or more human Ig light chain kappa J regions upstream of a rat kappa constant region and optionally one or more human Ig light chain lambda V regions and one or more human Ig light chain lambda J regions upstream of a rat lambda constant region;
wherein the rat genome comprises a chimaeric antibody chain locus, the locus encoding a chimaeric heavy chain; and
wherein the locus comprises a rat constant region nucleotide sequence and a rearranged VDJ nucleotide sequence produced by the in vivo rearrangement of a human V region, a human D region and a human J region, the V region being a V1-3 segment;
the rat expressing more V1-3 JH4 or V1-3 JH6 antibodies than any of, individually, V1-3 JH1, V1-3 JH2, V1-3 JH3 or V1-3 JH5 antibodies; and
wherein the cell is a B cell or hybridoma.
5. A mouse according to claim 1, a rat according to claim 3, or a cell according to claim 2 or claim 4 comprising a switch comprising SEQ ID NO 1.
6. A mouse, rat or cell according to any one of claims 1 to 5, wherein the human VDJ regions are operably linked in the genome with a sequence from a rat mu constant region.
7. A mouse, rat or cell according to any one of claims 1 to 6, wherein the genome comprises endogenous VDJ regions which have not been deleted.
8. A mouse, rat or cell according to any one of claims 1 to 7, wherein the genome does not comprise constant region DNA from another non-human organism.
9. Use of a mouse for producing a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a mouse constant region and a human variable region, the mouse genome comprising:
(a) a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of a mouse constant region;
(b) one or more human Ig light chain kappa V regions and one or more human Ig light chain kappa J regions upstream of a mouse kappa constant region and optionally one or more human Ig light chain lambda V regions and one or more human Ig light chain lambda J regions upstream of a mouse lambda constant region;
wherein the mouse is able to produce a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a mouse constant region and a human variable region;
wherein the mouse genome comprises a chimaeric antibody chain locus, the locus encoding a chimaeric heavy chain; and
wherein the locus comprises a mouse constant region nucleotide sequence and a rearranged VDJ nucleotide sequence produced by the in vivo rearrangement of a human V region, a human D region and a human J region, the V region being a V1-3 segment; and
the mouse expressing more V1-3 JH4 or V1-3 JH6 antibodies than any of, individually, V1‑JH1, V1-3 JH2, V1-3 JH3 or V1-3 JHS antibodies.
10. Use of a rat for producing a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a rat constant region and a human variable region, the rat genome comprising:
(a) a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of a rat constant region;
(b) one or more human Ig light chain kappa V regions and one or more human Ig light chain kappa J regions upstream of a rat kappa constant region and optionally one or more human Ig light chain lambda V regions and one or more human Ig light chain lambda J regions upstream of a rat lambda constant region;
wherein the rat is able to produce a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a rat constant region and a human variable region;
wherein the rat genome comprises a chimaeric antibody chain locus, the locus encoding a chimaeric heavy chain; and
wherein the locus comprises a rat constant region nucleotide sequence and a rearranged VDJ nucleotide sequence produced by the in vivo rearrangement of a human V region, a human D region and a human J region, the V region being a V1-3 segment; and
the rat expressing more V1-3 JH4 or V1-3 JH6 antibodies than any of, individually, V1-3 JH1, V1-3 JH2, V1-3 JH3 or V1-3 JHS antibodies.
11. A method for producing an antibody or antibody heavy chain or antibody light chain specific to a desired antigen, the method comprising immunizing a mouse according to any one of claims 1 or 5 to 8 or a rat according to any one of claims 3 or 5 to 8 with the desired antigen and recovering the antibody or antibody chain or recovering a cell producing the antibody or antibody chain.
12. A method according to claim 11, further comprising replacing the mouse or rat constant region of an antibody or chimaeric antibody chain to produce a fully humanised antibody or antibody chain.
13. A method according to claim 11 or claim 12 further comprising generating an antibody derivative of the antibody or antibody chain, wherein the derivative is specifically reactive with the antigen.
14. A mouse, rat, cell, use or method according to any one of claims 1 to 13, wherein the rearranged VDJ nucleotide sequence is produced by the in vivo rearrangement of human V1-3 and JH4 with D3-9, D3-10, D6-13 or D-19; or V1-3 and JH6 with D3-9, D3- 10, D6-13 or D-19.
15. A method according to any one of claims 11 to 14 further comprising combining the antibody, antibody chain or antibody derivative with a pharmaceutically acceptable carrier or other excipient to produce a pharmaceutical composition.
16. A method according to any one of claims 11 to 15 further comprising making a kit comprising the antibody, antibody chain or derivative.
17. An antibody, antibody chain or antibody derivative, or a recovered cell producing the antibody or antibody chain, produced by a method according to any one of claims 11 to 14.
18. A pharmaceutical composition comprising an antibody, antibody chain or antibody derivative produced by a method according to any one of claims 11 to 14 and a pharmaceutically acceptable carrier or other excipient.
19. A kit comprising an antibody, antibody chain or antibody derivative produced by a method according to any one of claims 11 to 14 or a pharmaceutical composition according to claim 18.
20. A mouse according to claim 1, a cell according to claim 2 or claim 4, a rat according to claim 3, use according to claim 9 or claim 10, a method according to claim 11, an antibody, antibody chain or antibody derivative, or a recovered cell producing the antibody or antibody chain, according to claim 17, a pharmaceutical composition according to claim 18, or a kit according to claim 19, substantially as hereinbefore described, with reference to the examples and figures.
Annex B – The claims as proposed to be amended
1. A mouse whose genome comprises:
(a) a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of a mouse constant region;
(b) one or more human Ig light chain kappa V regions and one or more human Ig light chain kappa J regions upstream of a mouse kappa constant region and optionally one or more human Ig light chain lambda V regions and one or more human Ig light chain lambda J regions upstream of a mouse lambda constant region;
wherein the mouse is able to produce a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a mouse constant region and a human variable region;
wherein the mouse genome comprises a chimaeric antibody chain locus, the locus encoding a chimaeric heavy chain; and
wherein the locus comprises a mouse constant region nucleotide sequence and a rearranged VDJ nucleotide sequence produced by in vivo rearrangement of a human V region, a human D region and a human J region;
the V region being a V1-3 segment; and
the mouse expressing more V1-3 JH4 or V1-3 JH6 antibodies than any of, individually, V1-3 JH1, V1-3 JH2, V1-3 JH3 or V1-3 JHS antibodies.
2. A mouse cell obtained from the mouse of claim 1, wherein the cell is a B cell or hybridoma.
3. A rat whose genome comprises:
(a) a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of a rat constant region;
(b) one or more human Ig light chain kappa V regions and one or more human Ig light chain kappa J regions upstream of a rat kappa constant region and optionally one or more human Ig light chain lambda V regions and one or more human Ig light chain lambda J regions upstream of a rat lambda constant region;
wherein the rat is able to produce a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a rat constant region and a human variable region;
wherein the rat genome comprises a chimaeric antibody chain locus, the locus encoding a chimaeric heavy chain; and
wherein the locus comprises a rat constant region nucleotide sequence and a rearranged VDJ nucleotide sequence produced by the in vivo rearrangement of a human V region, a human D region and a human J region, the V region being a V1-3 segment; and
the rat expressing more V1-3 JH4 or V1-3 JH6 antibodies than any of, individually, V1-3 JH1, V1-3 JH2, V1-3 JH3 or V1-3 JHS antibodies.
4. A rat cell obtained from the rat of claim 3, wherein the cell is a B cell or hybridoma.
5. A mouse according to claim 1, a rat according to claim 3, or a cell according to claim 2 or claim 4 comprising a switch comprising SEQ ID NO 1.
6. A mouse, rat or cell according to any one of claims 1 to 5, wherein the human VDJ regions are operably linked in the genome with a sequence from a rat mu constant region.
7. A mouse, rat or cell according to any one of claims 1 to 6, wherein the genome comprises endogenous VDJ regions which have not been deleted.
8. A mouse, rat or cell according to any one of claims 1 to 7, wherein the genome does not comprise constant region DNA from another non-human organism.
9. A mouse cell, or a mouse comprising said mouse cell, according to any one of claims 1, 2 and 5-8 wherein the mouse cell is a hybrid of C57BL/6, a hybrid of M129 such as 129/SV, or a hybrid of BALB/c.
10. A rat or mouse according to any one of claims 1, 3 and 5-8 whose genome comprises an antibody chain locus comprising a germline human kappa V1-8 and germline human kappa J1 sequence, and wherein an antibody is obtainable by in vivo recombination in said rat or mouse of the V1-8 and J1 sequences and wherein the antibody has a variable region sequence which is different from that which is encoded by germ line human kappa V1-8 and germline human kappa J1 sequences.
11. A rat or mouse according to any one of claims 1, 3 and 5-8 whose genome comprises an antibody chain locus comprising a germline human kappa V1-6 and germline human kappa J1 sequence, and wherein an antibody is obtainable by in vivo recombination in said rat or mouse of the V1-6 and J1 sequences and wherein the antibody has a variable region sequence which is different from that which is encoded by germ line human kappa V1-6 and germline human kappa J1 sequences.
12. A cell according to any one of claim 2 and claims 4-9 which is immortalised.
13. A cell according to claim 12 which is immortalised by fusion to a tumour cell to provide an antibody producing cell, or made by direct cellular immortalisation.
14. Use of a mouse for producing a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a mouse constant region and a human variable region, the mouse genome comprising:
(a) a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of a mouse constant region;
(b) one or more human Ig light chain kappa V regions and one or more human Ig light chain kappa J regions upstream of a mouse kappa constant region and optionally one or more human Ig light chain lambda V regions and one or more human Ig light chain lambda J regions upstream of a mouse lambda constant region;
wherein the mouse is able to produce a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a mouse constant region and a human variable region;
wherein the mouse genome comprises a chimaeric antibody chain locus, the locus encoding a chimaeric heavy chain; and
wherein the locus comprises a mouse constant region nucleotide sequence and a rearranged VDJ nucleotide sequence produced by the in vivo rearrangement of a human V region, a human D region and a human J region, the V region being a V1-3 segment; and
the mouse expressing more V1-3 JH4 or V1-3 JH6 antibodies than any of, individually, V1-3 JH1, V1-3 JH2, V1-3 JH3 or V1-3 JHS antibodies.
15. Use of a rat for producing a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a rat constant region and a human variable region, the rat genome comprising:
(a) a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of a rat constant region;
(b) one or more human Ig light chain kappa V regions and one or more human Ig light chain kappa J regions upstream of a rat kappa constant region and optionally one or more human Ig light chain lambda V regions and one or more human Ig light chain lambda J regions upstream of a rat lambda constant region;
wherein the rat is able to produce a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a rat constant region and a human variable region;
wherein the rat genome comprises a chimaeric antibody chain locus, the locus encoding a chimaeric heavy chain; and
wherein the locus comprises a rat constant region nucleotide sequence and a rearranged VDJ nucleotide sequence produced by the in vivo rearrangement of a human V region, a human D region and a human J region, the V region being a V1-3 segment; and
the rat expressing more V1-3 JH4 or V1-3 JH6 antibodies than any of, individually, V1-3 JH1, V1-3 JH2, V1-3 JH3 or V1-3 JHS antibodies.
16. Use according to claims 14 or 15, the use comprising immunizing the mouse or rat respectively with a desired antigen and recovering antibody specific to the antigen.
17. Use according to claim 16, wherein the antibody or cells expressing the antibody are recovered, and then replacing the mouse or rat constant region respectively with a human constant region to produce a fully humanised antibody.
18. Use according to claim 16 comprising providing
(i) a nucleic acid encoding the antibody, or a part thereof, or
(ii) sequence information from which a nucleic acid can be expressed encoding the antibody or a part thereof to be produced.
19. Use according to claims 14 or 15, wherein the use further comprises obtaining a cell line derived from a cell of the mouse or rat respectively, the cell line comprising inserted rearranged human V, D, J, optionally encoding an antibody encoded by V1-3 JH4 or V1-3 JH6.
20. Use according to claims 14 or 15, wherein the use further comprises growing a cell line from a cell of the mouse or rat respectively, the cell line comprising rearranged human V, D, J, optionally encoding an antibody encoded by V1-3 JH4 or V1-3 JH6.
21. Use according to claims 19 or 20 wherein the cell line is an immortalised cell line.
22. Use according to claim 21 wherein the cell line is immortalised by fusion to a tumour cell to provide an antibody producing cell line, or is made by direct cellular immortalisation.
23. A method for producing an antibody or antibody heavy chain or antibody light chain specific to a desired antigen, the method comprising immunizing a mouse according to any one of claims 1 or 5 to 8 or a rat according to any one of claims 3 or 5 to 8 with the desired antigen and recovering the antibody or antibody chain or recovering a cell producing the antibody or antibody chain.
24. A method according to claim 23, further comprising replacing the mouse or rat constant region of an antibody or chimaeric antibody chain to produce a fully humanised antibody or antibody chain.
25. A method according to claim 23 or claim 24 further comprising generating an antibody derivative of the antibody or antibody chain, wherein the derivative is specifically reactive with the antigen.
26. A method for making an antibody, or part thereof, the method comprising providing
(i) a nucleic acid encoding an antibody, or a part thereof, the antibody being obtained according to the method of any one of claim 23-24; or
(ii) sequence information from which a nucleic acid can be expressed to allow an antibody or a part thereof to be produced, the antibody being obtained according to the method of any one of claim 23-24.
27. A mouse, rat, cell, use or method according to any one of claims 1 to 26 wherein the rearranged VDJ nucleotide sequence is produced by the in vivo rearrangement of human V1-3 and JH4 with D3-9, D3-10, D6-13 or D-19; or V1-3 and JH6 with D3-9, D3-10, D6-13 or D-19.
28. A method according to any one of claims 23 to 25 further comprising combining the antibody, antibody chain or antibody derivative with a pharmaceutically acceptable carrier or other excipient to produce a pharmaceutical composition.
29. A method according to any one of claims 23 to 25 further comprising making a kit comprising the antibody, antibody chain or derivative.
30. An antibody, antibody chain or antibody derivative, or a recovered cell producing the antibody or antibody chain, produced by a method according to any one of claims 23 to 25.
31. A pharmaceutical composition comprising an antibody, antibody chain or antibody derivative produced by a method according to any one of claims 23 to 25 and a pharmaceutically acceptable carrier or other excipient.
32. A kit comprising an antibody, antibody chain or antibody derivative produced by a method according to any one of claims 23 to 25 or a pharmaceutical composition according to claim 31.
33. A mouse according to claim 1, when made by a method comprising
insertion of multiple DNA fragments into a mouse ES cell DNA target,
wherein the insertion is of a DNA fragment of >100kB into a host chromosome in a stepwise fashion,
and wherein during the stepwise insertion the 5' end of the upstream (5') DNA insert is increased in length,
wherein the method comprises insertion of a first DNA sequence into the target, the sequence having a DNA vector portion and a first sequence of interest (X1 ); insertion of a second DNA sequence into the vector portion of the first sequence, the second DNA sequence having a second sequence of interest (X2) and a second vector portion; and excising vector sequence DNA separating X1 and X2 to provide a contiguous X1X2, or X2X1 sequence within the target, wherein X1 and X2 are joined together directly without intervening sequences,
wherein X1 and X2 comprise human VDJ or VJ DNA.
the method further comprising modifying the mouse genome to prevent expression of the fully host mouse specific antibodies in the mouse by inactivation of all or a part of the host mouse Ig loci,
wherein said modifying is achieved by insertion of one or more site specific recombinase sites into the genome and then use of these sites in recombinase-mediated excision of all or a part of the mouse Ig locus.
34. A mouse according to claim 1, when made by a method comprising inserting into a mouse ES cell genome a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of the host mouse heavy chain constant region; wherein
(a) the insertion of the human heavy chain DNA is made between the mouse constant
region and the last, 3', mouse J region;
(b) the insertion is such that the mouse is able to produce a repertoire of chimaeric antibodies or heavy chains having a mouse constant region and a human variable region; and
the method comprises modifying the mouse genome to prevent expression of the fully host mouse specific antibodies in the mouse by inactivation of all or a part of the host mouse mammal Ig loci, wherein said modifying is achieved by insertion of one or more site specific recombinase sites into the genome and then use of these sites in recombinase-mediated excision or inversion of all or a part of the mouse Ig locus.
35. A mouse according to claim 1, when made by a method comprising inserting into a mouse ES cell genome a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of the host mouse heavy chain constant region; wherein
(a) the insertion of the human heavy chain DNA is made between the mouse constant region and the last, 3', mouse J region;
(b) the insertion is such that the mouse is able to produce a repertoire of chimaeric antibodies or heavy chains having a mouse constant region and a human variable region; and
(c) wherein the insertion process commences at a site where an initiation cassette has been inserted into the genome, providing a unique targeting region; wherein the insertion of a first DNA fragment into the initiation cassette is followed by insertion of a second DNA fragment into a portion of the first DNA fragment;
(d) and wherein during the stepwise insertion the 5' end of the upstream (5') DNA insert is increased in length.
36. A mouse or mouse cell or rat or rat cell according to any of claims 1-13 or 33- 35, or use according to any one of claims 14- 22, wherein the mouse or rat genome comprises the following human regions:
Vh 2-5, 4-4, 1-3, 1-2, 6-1;
Dh 1-1, 2-2, 3-3, 4-4, 5-5, 6-6, 1-7, 2-8, 3-9, 3-10, 4-11, 5-12, 6-13, 1-14, 2-15, 3-15, 4-17, 5-18, 6-19, 1-20, 2-21, 3-22, 4-23, 5-24, 6-25, 1-26, 7-27;
Jh 1, 2, 3, 4, 5, 6;
Vk 1-9, 1-8, 1-6, 1-5; and
Jk 1, 2, 3, 4, 5
37. A mouse whose genome comprises:
(a) a plurality of human IgH V regions, one or more human D regions and one or more human J regions upstream of a mouse constant region;
(b) one or more human Ig light chain kappa V regions and one or more human Ig light chain kappa J regions upstream of a mouse kappa constant region and optionally one or more human Ig light chain lambda V regions and one or more human Ig light chain lambda J regions upstream of a mouse lambda constant region;
wherein the mouse is able to produce a repertoire of chimaeric antibodies, or chimaeric heavy chains and chimaeric light chains, having a mouse constant region and a human variable region;
wherein the mouse genome comprises a chimaeric antibody chain locus, the locus encoding a chimaeric heavy chain; and
wherein the locus comprises a mouse constant region nucleotide sequence and a rearranged VDJ nucleotide sequence produced by in vivo rearrangement of a human V region, a human D region and a human J region;
the V region being a V1-3 segment; and
the mouse expressing more V1-3 JH4 or V1-3 JH6 antibodies than any of, individually, V1-3 JH1, V1-3 JH2, V1-3 JH3 or V1-3 JH5 antibodies.
wherein the mouse is a hybrid of C57BL/6, a hybrid of M129 such as 129/SV, or a hybrid of BALB/c.
38. A mouse cell when obtained from the mouse according to claim 37.
39. A mouse according to claim 1 or claim or 33-35 or 37, a cell according to claim 2 or claim 4, a rat according to claim 3 or use according to claim 14 or claim 15, in which the mouse or rat or cell expresses more V1-3 JH6 antibodies than any of, individually, V1-3 JH1, V1-3 JH2, V1-3 JH3 or V1-3 JH5 antibodies.
40. A mouse, rat, cell or use according to claim 39 wherein the rearranged VDJ nucleotide sequence is produced by the in vivo rearrangement of human V1-3 and JH6 with D3-9, D3-10, D6-13 or D-19.
41. A mouse according to claim 1 or claim 33-35 or 37, a cell according to claim 2 or claim 4, a rat according to claim 3, use according to claim 14 or claim 15, a method according to claim 23 or claim 26, an antibody, antibody chain or antibody derivative, or a recovered cell producing the antibody or antibody chain, according to claim 30, a pharmaceutical composition according to claim 31, or a kit according to claim 32, substantially as hereinbefore described, with reference to the examples and figures.
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