The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
The amendment filed on 9-17-2025 is acknowledged. Claims 6 and 10 have been amended. Claim 7 has been canceled. Claims 1-6, 8 and 10-19 are pending. Claims 1-5 and 11-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Claims 6, 8 and 10 are currently under examination.
Claim Rejections Withdrawn
The rejection of claims 6, 8 and 10 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement is withdrawn in light of the amendment thereto.
The rejection of claim 6 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being rendered vague and indefinite by the use of the phrase “…at least one gene encoding Cry and/or Cyt toxins” is withdrawn in light of the amendment thereto.
The rejection of claim 10 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for lacking proper antecedent basis for the limitation "genes encoding toxins" in line 2 is withdrawn in light of the amendment thereto.
New Grounds of Rejection
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.
Claims 6, 8 and 10 are 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.
Claim 6 is rendered vague and indefinite by the use of the phrase “…at least one gene encoding Cry or Cyt toxins”. It is unclear what is meant to be engendered by said phrase. It is unclear how a given gene can encode for a plurality of toxins. As written, it is impossible to determine the metes and bounds of the claimed invention. It is suggested that the phrase “…at least one gene encoding a Cry or Cyt toxin” be used instead.
Claim 10 is rendered vague and indefinite by the use of the phrase “…wherein the genes encoding toxins are selected from the group consisting of cry1, cry2, cry3, cry4, cry5, cry6, cry8, cry9, cry11, cry14, cry21, cyt1 and cyt2 genes”. It is unclear what is meant to be engendered by said phrase as the recited genes encode for a single toxin whereas the independent claim is drawn to genes encoding a plurality of toxins. As written, it is impossible to determine the metes and bounds of the claimed invention. It is suggested that the phrase “…wherein the at least one gene encoding a Cry or Cyt toxin is selected from the group consisting of cry1, cry2, cry3, cry4, cry5, cry6, cry8, cry9, cry11, cry14, cry21, cyt1 and cyt2 genes”
Conclusion
No claim is allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/ROBERT A ZEMAN/Primary Examiner, Art Unit 1645 January 3, 2026