DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application is being examined under the pre-AIA first to invent provisions.
Status of the Application
2. Claims 46, 48, 52-61, 64-72, 74-76, and 79-82 are pending.
3. Claims 52, 53, 58-61, and 64-69 remain and claims 81 and 82 are withdrawn from consideration.
4. Claims 46, 48, 54-57, 70-72, 74-76, 79, and 80 are examined.
5. The objection to claim 80 is withdrawn in view of Applicant’s amendments.
Election/Restrictions
6. In a telephonic communication on November 8, 2013, Applicant elected Group I, claims 1-5, 14, and 15, without traverse (see Non-Final Office Action mailed on November 20, 2013). In the instant amendments, Applicant added new claims 81 and 82, directed to a method for controlling weeds. In the Restriction Requirement, these claims would have been included in a separate group, Group VII. For this reason, claims 81 and 82 are withdrawn as being drawn to a non-elected invention.
Claim Rejections - 35 USC § 112 - Indefinitness
7. The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
8. Claims 46, 48, 54-57, 70-72, 74-76, 79, and 80 remain rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The rejection has been modified in view of Applicant’s amendments to the claims. Applicant’s arguments filed on December 23, 2025 were fully considered but they are not persuasive.
In claim 46, part (e), the recitation “a phytotoxicity, at 21 days after treatment, within the range of the phytotoxicities of sunflower plants that have homozygous A122T/A122T alleles and have an average phytotoxicity of 3-5% from 200 g AI/ha imazamox at 21 after treatment” renders the claim indefinite.
It is unclear how the term “phytotoxicity” would apply to a single sunflower plant, given that the “average phytotoxicity of 3-5%” appears to apply to a group of plants. The specification does not teach how “phytotoxicity” could be determined for a single plant. It is also unclear what “within the range of phytotoxicities” means. For example, it is unclear whether the range would encompass the values above or below 3% and 5%. It is noted that the specification, on page 56, in lines 5-10, appears to refer to the phytotoxicity of “2-3%” as being “equivalent” to “3-5%,” in the following paragraph: “Three levels of imazamox, 50 g ai, 100 g ai and 200 g ai/ha, were tested on all entries (except entry 15). At 200 g ai/ha of imazamox, the heterozygous A205V/A122T lines (2 - 3% phytotoxicity at 21 DAT) demonstrated significantly less phytotoxicity than the homozygous A205V/A205V lines (15 - 22% phytotoxicity at 21 DAT) and equivalent phytotoxicity to the homozygous A122T/A122T lines (3 - 5% phytotoxicity at 21 DAT).” It is unclear how the “phytotoxicity” of the heterozygous line, which is recited as being “2-3%”, can be considered “equivalent” or “same” to that of the homozygous A122T/A122T plants, which have the stated phytotoxicity of “3-5%.” No further clarification is supplied, and one of ordinary skill in the art would not consider 3% equivalent to 5%.
In claim 48, as instantly amended, the recitation “a phytotoxicity, at 14 days after treatment that is within the range of the phytotoxicities of sunflower plants that have homozygous P197L/P197L/-alleles and have an average phytotoxicity index of 0.1 from 10 g AI/ha metsulfuron methyl at 14 days after treatment” renders the claim indefinite for the reasons similar to those set forth above for claim 46. For example, it is unclear how the terms “range of the phytotoxicities” or “average phytotoxicity” could be used to practice step (e) in the context of a single plant, as recited. It is also unclear whether any values other than 0.1 are encompassed by the above clause.
Given that claims 54-57, 70-72 and 74-82 depend from claims 46 or 48 and do not recite additional limitations overcoming the indefiniteness of claims 46 and 48, said claims are indefinite as well. For these reasons, the metes and bounds of the claims are unclear.
Response to Arguments
Applicant argues that the amendments to the claims overcome the rejection (pages 8-9 of the Remarks).
This is not found to be persuasive. The rejection has been modified in view of Applicant’s amendments. However, the claims remain indefinite for the reasons set for the above.
Claim Interpretation
9. The following is noted with regard to claim interpretation. In claims 46 and 48, the steps of “treating said third sunflower plant” with imidazolinone or metsulfuron methyl are given their broadest reasonable interpretation as encompassing treating the sunflower plant with any application rate of metsulfuron methyl (in claim 48) and imazamox (in claim 46).
Claims 75-76 are interpreted to encompass the scenario wherein 200 g ai/ha of imazamox and 5 g ai/ha of metsulfuron methyl are applied in step (d) of claim 46 or 48. Clams 77-78 are read as encompassing a step of controlling weeds growing in the vicinity of a plant obtained by the method of claims 46 and 48.
Claim Rejections - 35 USC § 103
10. The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
11. Claims 46, 48, 54-57, 70, 71, 73-75, 77, 79 and 80 remain rejected under 35 U.S.C. 103(a) as being unpatentable over Kolkman et al (Theor. and Appl. Genet. (2004) 109:1147-1159), in view of White et al (Weed Science (2003) 51:845-853), Jander et al (US Application No. 2003/0097692 A1, published May 22, 2003), Sala et al (US 20110209232, claiming priority to US provisional application 60/695,952, filed July 1, 2005; first published as WIPO publication WO 2007/005581), Penner et al (US Patent No. 5,859,348, issued January 12, 1999), and Tan et al (Pest Mgmt. Sci. (2005) 61:246-257).
This rejection has been modified in view of Applicant’s amendments to the claims. Applicant's arguments filed on December 23, 2025 have been fully considered but they are not persuasive.
The claims are directed to a method for providing a herbicide-resistant sunflower plant comprising in its genome two different herbicide-resistant alleles of the sunflower AHASL1 gene, wherein a first allele encodes a first AHASL1 protein comprising an alanine to threonine substitution at the amino acid position corresponding to position 7 of SEQ ID NO: 20, and said second allele encodes a second AHASL1 protein comprising a substitution at the amino acid position corresponding to position 90 of SEQ ID NO: 20 or position 82 of SEQ ID NO: 20, wherein said plant is resistant to imazamox or sulfonylurea.
Kolkman et al teach a sunflower plant comprising at least one copy of an AHASL polynucleotide encoding an herbicide resistance AHASL1 protein (Fig. 2 on pg. 1152). Kolkman et al teach that the P182L and the A190V substitutions in sunflower AHASL1 confer resistance to imidazolinone herbicides, such as imazethapyr and chlorimuron (pg. 1153, right col; pg. 1157). Kolkman et al teach introgressing resistance genes to AHASL inhibiting herbicides from resistant populations into sunflower lines for the purpose of developing herbicide resistant sunflower cultivars and hybrids (pg. 1148, left col., second full paragraph).
Kolkman et al teach an amino acid sequence that is 99.7% identical to the instant SEQ ID NO: 20. The instant specification defines SEQ ID NO: 20 as truncated sunflower AHASL with an A107T mutation (in sunflower AHASL numbering), which corresponds to position 7 in SEQ ID NO: 20 (see pg. 11, lines 16-22). The sequence of Kolkman et al differs from the instant SEQ ID NO: 20 at a single amino acid residue: the sequence of Kolkman et al has an alanine at position 107. As one skilled in the art would recognize, the amino acid sequence of Kolkman et al corresponds to the non-mutated form of the instant SEQ ID NO: 20, and position 107 of the sequence of Kolkman et al corresponds to position 7 of the instant SEQ ID NO: 20. The sequence alignment is set forth below:
RX PubMed=15309298; DOI=10.1007/s00122-004-1716-7;
RA Kolkman J.M., Slabaugh M.B., Bruniard J.M., Berry S., Bushman B.S.,
RA Olungu C., Maes N., Abratti G., Zambelli A., Miller J.F., Leon A.,
RA Knapp S.J.;
RT "Acetohydroxyacid synthase mutations conferring resistance to
RT imidazolinone or sulfonylurea herbicides in sunflower.";
RL Theor. Appl. Genet. 109:1147-1159(2004).
DR EMBL; AY541451; AAT07322.1; -; Genomic_DNA.
Query Match 99.8%; Score 2026; DB 13; Length 655;
Best Local Similarity 99.7%;
Matches 391; Conservative 0; Mismatches 1; Indels 0; Gaps 0;
Qy 1 FAYPGGTSMEIHQALTRSSTIRNVLPRHEQGGVFAAEGYARASGLPGVCIATSGPGATNL 60
|||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 101 FAYPGGASMEIHQALTRSSTIRNVLPRHEQGGVFAAEGYARASGLPGVCIATSGPGATNL 160
Qy 61 VSGLADALLDSVPMVAITGQVPRRMIGTDAFQETPIVEVTRSITKHNYLVLDVEDIPRIV 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 161 VSGLADALLDSVPMVAITGQVPRRMIGTDAFQETPIVEVTRSITKHNYLVLDVEDIPRIV 220
Qy 121 REAFYLASSGRPGPVLIDVPKDIQQQLVVPKWDEPMRLPGYLSRMPKPQYDGHLEQIVRL 180
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 221 REAFYLASSGRPGPVLIDVPKDIQQQLVVPKWDEPMRLPGYLSRMPKPQYDGHLEQIVRL 280
Qy 181 VGEAKRPVLYVGGGCLNSDDELRRFVELTGIPVASTLMGLGAYPASSDLSLHMLGMHGTV 240
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 281 VGEAKRPVLYVGGGCLNSDDELRRFVELTGIPVASTLMGLGAYPASSDLSLHMLGMHGTV 340
Qy 241 YANYAVDKSDLLLAFGVRFDDRVTGKLEAFASRAKIVHIDIDPAEIGKNKQPHVSICGDI 300
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 341 YANYAVDKSDLLLAFGVRFDDRVTGKLEAFASRAKIVHIDIDPAEIGKNKQPHVSICGDI 400
Qy 301 KVALQGLNKILEEKNSVTNLDFSTWRKELDEQKMKFPLSFKTFGEAIPPQYAIQVLDELT 360
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 401 KVALQGLNKILEEKNSVTNLDFSTWRKELDEQKMKFPLSFKTFGEAIPPQYAIQVLDELT 460
Qy 361 GGNAIISTGVGQHQMWAAQFYKYNKPRQWLTS 392
||||||||||||||||||||||||||||||||
Db 461 GGNAIISTGVGQHQMWAAQFYKYNKPRQWLTS 492
Kolkman et al do not teach a sunflower plant comprising an AHASL protein with a threonine substitution at relative position 122. Kolkman et al do not teach a sunflower plant comprising two mutated AHASL proteins, wherein one has the A122T substitution, and a second one comprises the A205V or the P197L substitutions in the sunflower AHASL.
Jander et al teach a nucleic acid molecule encoding functional AHAS that has the A122T substitution (corresponding to A107T in sunflower numbering); and an imidazolinone-resistant sunflower plant comprising that nucleic acid (claims 1, 2, 7 and 8).
White et al teach herbicide resistant sunflower plants comprising a gene encoding the AHASL protein with the A205V (in Arabidopsis, corresponding to A190V in sunflower) substitution (White et al, abstract; pg. 852, left col. first full paragraph). White et al teach that multiple mutations conferring resistance to AHASL-inhibitors have been found at positions P197 and A205 (in Arabidopsis, corresponding to P182 and A190, respectively, in sunflower; White et al, pg. 850, left col; Table 4).
Sala et al teach a sunflower plant comprising an AHASL polynucleotide encoding a herbicide-resistance AHASL with a threonine at position 107, said protein further comprising a leucine at position 182, or further comprising a valine at position 190 (claims 1-7). Sala et al teach that sunflower plants comprising the A122T or the A205V mutations both showed reduced sensitivity to imazamox, at 100 g ai/ha and at 200 g ai/ha (Figures 4 and 5). Sala et al teach producing sunflower plants that are homozygous for the herbicide tolerance characteristics (Example 3). Sala et al teach a transformed plant comprising the nucleic acid encoding the AHASL with the A122T substitution, wherein the AHAL comprises herbicide tolerance, including wherein the herbicide is metsulfuron (claims 31-39). Sala et al teach a method of controlling weeds using the plants of their invention, wherein the herbicide applied in said method is metsulfuron (claims 16 and 18). Sala et al teach applying imidazolinone herbicide as mixture of several imidazolinone herbicides (paragraph 0077, for example). Sala et al teach that herbicide formulations can comprise a dry preparation and can be applied by dusting (paragraph 0150).
Penner et al teach sugar beet plants comprising a nucleic acid sequence encoding a mutated AHASL comprising two mutations: A113T (in sugar beet; 122 in Arabidopsis) and P188S (in sugar beet; 197 in Arabidopsis) (col. 9, lines 35-55). Penner et al teach that said the P188S substitution conferred tolerance to chlorsulfuron methyl and sulfometuron; and that double mutation provides enhanced resistance to a combination of sulfonylureas and imidazolinones (col. 9, lines 56-59; Fig. 4). Penner et al teach that the resultant resistance is synergistic when compared to the level of resistance afforded by the two mutations individually (col. 10, lines 9-14; Table 2 in col. 10).
Tan et al teach that the mutation at A122 (A107 in sunflower numbering) confers resistance to imidazolinones, while the mutation at P197 (P182 in sunflower numbering) confers resistance to sulfonylureas, but not to imidazolinones (pg. 248, top of right col.). Tan et al teach that mutations at A122 and A205 are a good choice for the development of imidazolinone tolerant crops (pg. 248, right col.).
At the time the invention was made, it would have been prima facie obvious to one having ordinary skill in the art to use the introgression methods taught by Kolkman et al, and to cross the sunflower plants of Jander et al (comprising the A107T mutation) with the sunflower plants of White et al (comprising the A190V mutation) or with the sunflower plants of Kolkman et al (comprising the P182L mutation), thus obtaining sunflower plants comprising these two mutations on different AHASL1 alleles. It would have been also obvious to cross sunflower plants that are homozygous for said substitutions, in view of teachings of Sala et al, and as a matter of standard industry practice.
Applying an appropriate imidazolinone or sulfonylurea, including, specifically, imazamox, including at 200 g ai/ha, and metsulfuron, or a mixture of imidazolinones, to the resultant plant, and subsequently evaluating the level of the plant’s tolerance, would have been prima facie obvious as well, in view of the teachings of Sala et al.
Similarly, selecting at least one progeny herbicide-tolerant plant from the crossing of claim 46, including wherein the selecting step comprises “a greenhouse evaluation” or a “field evaluation,” wherein said evaluation includes determining the effect of the herbicide on the plant,” would have been obvious in view of the teachings of Sala et al and would read on steps (d) and (e) of claim 46 and on claim 74. Using the resultant herbicide tolerant plant in a method of weed control, wherein the weeds are killed by the imazamox or metsulfuron methyl and the sunflower plant is not, would have been obvious as well, in view of the teachings of Sala et al.
As a result of the introgression of the A107T mutant allele into a plant comprising another mutant allele, such as A190V or P182L, at least some progeny plants would be heterozygous for the two mutations. The phenotype of reduced sensitivity to imazamox would not have been unexpected, given that Sala et al teach that sunflower plants comprising the A122T or the A205V mutations both showed reduced sensitivity to imazamox, at 100 g ai/ha and at 200 g ai/ha (Figures 4 and 5).
Moreover, the levels of tolerance (to imazamox or metsulfuron) of said resultant heterozygous plants relative to said levels for the homozygous plants would have been a property naturally flowing from the structure of said plants, and would amount to a desired result of the claimed method that would have naturally flowed from said prima facie obvious method. “The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.” Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
One would have been motivated to combine the above teachings, because doing so would enable one to obtain sunflower plants tolerant to both sulfonylureas and imidazolinones, as taught by Tan et al. One would have also been motivated to do so because Sala et al teach sunflower plants comprising the two point mutations on the same AHASL protein, and because Penner et al teach that combining the two mutations at positions 197 and 122 results in a synergistic level of resistance to imidazolinones, as well as tolerance to sulfonylureas. Because Jander et al, Sala et al, and Penner et al successfully reduced their invention to practice, and because the introgression methods taught by Kolkman et al are standard in the art, one would have had reasonable expectation of success.
12. Claim 72 remains rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kolkman et al (Theor. and Appl. Genet. (2004) 109:1147-1159), in view of White et al (Weed Science (2003) 51:845-853), Jander et al (US Application No. 2003/0097692 A1, published May 22, 2003), Sala et al (US 20110209232, claiming priority to US provisional application 60/695,952, filed July 1, 2005; first published as WIPO publication WO 2007/005581), Penner et al (US Patent No. 5,859,348, issued January 12, 1999), and Tan et al (Pest Mgmt. Sci. (2005) 61:246-257), as applied to claim 46, and further in view of Fernandez-Martinez et al (Euphytica (1989) 41:39-51).
Applicant's arguments filed on December 23, 2025 have been fully considered but they are not persuasive.
The claim is drawn to the method of claim 46, further comprising harvesting a seed from the herbicide resistant sunflower plant, wherein the seed comprises extractable oil comprising at least 85% oleic acid.
The teachings of Kolkman et al, White et al, Jander et al, Sala et al, Penner et al, and Tan et al are set forth above. The references do not teach a sunflower plant producing seed with at least 85% oleic acid.
Fernandez-Martinez et al teach sunflower lines that are true breeding for high oleic acid content (average of higher than 85%) (Abstract; pg. 41, both col.).
At the time the invention was made, it would have been prima facie obvious to modify the method of claim 46 by introducing the recited substitutions into the sunflower plant of Fernandez-Martinez et al, thus obtaining a sunflower seed that comprises the two substitutions and produces seed comprising at least 85% oleic acid, with reasonable expectation of success. One would have been motivated to combine said teachings in view of the desirability of a sunflower plant comprising high oleic content (as taught by Fernandez-Martinez et al and known in the art), which plant is also tolerant to AHAS inhibiting herbicides.
13. Claim 76 remains rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kolkman et al (Theor. and Appl. Genet. (2004) 109:1147-1159), in view of White et al (Weed Science (2003) 51:845-853), Jander et al (US Application No. 2003/0097692 A1, published May 22, 2003), Sala et al (US 20110209232, claiming priority to US provisional application 60/695,952, filed July 1, 2005; first published as WIPO publication WO 2007/005581), Penner et al (US Patent No. 5,859,348, issued January 12, 1999), and Tan et al (Pest Mgmt. Sci. (2005) 61:246-257), as applied to claim 46, and further in view of Walker et al (Weed Research (1989) 29:281-287).
Applicant's arguments filed on December 23, 2025 have been fully considered but they are not persuasive.
The claim is drawn to the method of claim 48, further comprising applying metsulfuron methyl to the herbicide tolerant sunflower plant or to the weeds at 5 g ai/ha.
The teachings of Kolkman et al, White et al, Jander et al, Sala et al, Penner et al, and Tan et al are set forth above. In addition, Sala et al teach that an herbicide formulation may comprise 1-800 g/l active ingredient (pg. 54, lines 21-25). The references do not teach the specific concentration of metsulfuron methyl.
Walker et al teach that metsulfuron methyl is applied postemergence at 5-20 g ai/ha (paragraph spanning pages 281-282).
At the time of invention, it would have been prima facie obvious to modify the methods of claim 48 using the teachings of Walker et al applying metsulfuron methyl at the rate of 5 g ai/ha to the herbicide tolerant sunflower plant that comprises the A107T together with the A190V or P182L AHASL mutant alleles; and/or to the weeds growing alongside said plant. One would have been motivated to do so given the teachings of Walker et al and also given the fact that 5 g ai/ha is a standard recommended application rate, as one of ordinary skill in the art would have recognized.
Response to Arguments
Applicant argues that the phenotype of herbicide tolerance structurally limits the claimed plant and cited PTAB Decision 2025-003055 for support. Applicant argues that Applicant had previously submitted evidence of unexpected results (pages 9-10 of the Remarks).
Applicant’s argument is not found to be persuasive. The cited PTAB decision reflects the facts of a specific application drawn to a different invention, in an unrelated crop species. Applicant has provided no explanation as to how the facts of said unrelated application could be applied to the instant scenario. Nor has Applicant supplied any evidence that the cited decision is precedential legal authority.
Applicant’s previously submitted arguments were considered in detail in the previous Office Actions and remain not persuasive for the reasons of record.
The Examiner maintains that all of the evidence submitted by Applicant during the prosecution history of the instant application, including the three expert declarations, have been extensively considered by the Examiner. When evidence traversing a rejection is presented by Applicant, it must be evaluated by the Examiner and, ultimately, weighed against evidence supporting prima facie case. See MPEP 716.01. Given that Applicant’s evidence is weighed against the prima facie case, the submission of objective evidence of patentability does not mandate a conclusion of patentability in and of itself. In re Chupp, 816 F.2d 643, 2 USPQ2d 1437 (Fed. Cir. 1987).
In the instant case, all evidence submitted by Applicant, including the Declaration of Dr. Mankin, filed on May 27, 2022, under 37 C.F.R. 1.132, was fully considered, and the specific reasons as to why said evidence was not sufficient to overcome the rejection were set forth in the previous Office Actions.
With regard to the property of herbicide tolerance, it was expressly addressed in the rejection above. With regard to whether or not a “whereby” or a “wherein” clause actually limits a claimed invention is a fact specific analysis. This is expressly explained in MPEP 2111.04 and the legal precedent cited in the section. This includes, specifically, the scenario where said clause attempts to limit a method step: “The determination of whether each of these clauses is a limitation in a claim depends on the specific facts of the case. See, e.g., Griffin v. Bertina, 285 F.3d 1029, 1034, 62 USPQ2d 1431 (Fed. Cir. 2002) (finding that a “wherein” clause limited a process claim where the clause gave “meaning and purpose to the manipulative steps”).
In the subsequent decision, Boehringer Ingelheim Vetmedica, Inc. v. ScheringPlough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003), the Federal Circuit explained the reasoning of Griffin as follows: [An intended] use or purpose usually will not limit the scope of the claim because such statements usually do no more than define a context in which the invention operates. But as we explained in Griffin v. Bertina, 285 F.3d 1029, 62 USPQ2d 1431 (Fed. Cir. 2002), preamble language will limit the claim if it recites not merely a context in which the invention may be used, but the essence of the invention without which performance of the recited steps is nothing but an academic exercise. Id. at 1033 (emphasis supplied).
In the instant case, the essence of the invention is reflected in a method whose active steps require the crossing of one sunflower plant homozygous for the A122T substitutions with the second plant homozygous for the A205V or P197L substitution, and treating the resultant plant with an imidazolinone or a sulfonylurea herbicide. The relative property of imazamox or sulfonylurea tolerance of the resultant A122T/A205V or A122T/P197L plants being “less than” the tolerance of the respective homozygous plants is not required to practice the instantly claimed method.
Moreover, as explained in the previous Office Actions, the phenotype would not have been unexpected. For example, reduced sensitivity to imazamox would not have been unexpected given that Sala et al teach that sunflower plants comprising the A122T or the A205V mutations both showed reduced sensitivity to imazamox, at 100 g ai/ha and at 200 g ai/ha (Figures 4 and 5). The semi-dominance of commercially important AHAS substitutions, including the A205V, is known in the art (see Sala et al, pages 2-3; Kolkman, Abstract). However, given that both, A122T and A205V, confer tolerance to commercial rates of imidazolinones (see Sala et al, Kolkman et al, White et al), it would not have been unexpected that the A122T/A205V heterozygous sunflower plants would be tolerant to imazamox. This would have been sufficient to predictably practice the active steps of the claimed method with reasonable expectation of success.
With regard to the teachings of Kmiec et al, contrary to Applicant’s position, the reference is directly relevant to the claimed invention because using the method of Kmiec et al, one of ordinary skill in the art would have been able to predictably arrive at a sunflower plant whose structure would read on the sunflower plant used in the methods of the instant invention. With regard to the teachings of Sala et al, there would have been no need to one of ordinary skill in the art to rely on any express teachings of a “stack” of single mutant AHASL’s in a sunflower plant. The motivation to arrive at the instant invention would have been provided by the combined teachings of the cited prior art for the reasons set for the above. The rejection is maintained.
Conclusion
14. No claims are allowed.
15. THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
16. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MYKOLA V KOVALENKO whose telephone number is (571)272-6921. The examiner can normally be reached Mon.-Fri. 9:00-5:30 PST.
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/MYKOLA V. KOVALENKO/Primary Examiner, Art Unit 1662