DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This Action has been made FINAL.
Status of the Claims
The status of the claims, filed on 26 March 2026, is as follows:
Claims 1, 3, 9-12, 15, 17-18, 20. 22-27 and 31-34 are pending.
Claims 1, 24 and 27 have been amended.
Claim 8 has been cancelled.
Claims 31-34 have been newly added.
Claims 1, 3, 9-12, 15, 17-18, 20. 22-27 and 31-34 are hereby examined.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3, 9-12, 15, 17-18, 20. 22-27 and 31-34 are rejected under 35 U.S.C. 103 as being unpatentable over Bernards et al. (2008. Phylpropanoid metabolism induced by wounding and insect herbivory. In: Schaller, A (eds) Induced plant resistance to herbivory. Springer, Dordrecht. https://doi.org/10.1007/978-1-4020-8182-8_9), Grey et al (1997. Systemic application of L-Phenylalanine increase plant resistance to vertebrate herbivory. Journal of Chemical Ecolory. 23: 1463-1469), Roussel-Uclaff (1979 FR2405650-see Translation of document submitted by Applicants on 29 December 2021), Teixeira et al (2017. Foliar and seed application of amino acids affects the antioxidant metabolism of the soybean crop. Frontiers in plant science. 8: 1-14), Godfrey et al (2016. South America Tomato Leafminer, Tuta absoluta: A serious threat to California. chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://crf.ucdavis.edu/sites/g/files/dgvnsk1601/files/inline-files/Tuta-absoluta%202016_FINAL_for_WEB.pdf) and Melouk, A.M. (2007. Effect of phenylalanine, putrescine and spermidine on yield and berry quality Thompson Seedless grapevines. J. Agric Sci. Mansours Univ. 32(2): 1245-1254) taken with the evidence of Precision Laboratories: Nonionic surfactants website (2026. https://www.precisionlab.com/tank-mix-adjuvants/activator-adjuvants/nonionic-surfactants/).
Due to Applicant’s amendments of the claims, the rejection is modified from the rejection as set forth in the Office action mailed 27 October 2025, as applied to claims 1, 3, 8-12, 15, 17-18, 20 and 22-27. Applicant’s arguments filed 26 March 2026 have been fully considered but they are not persuasive.
The claims are broadly drawn to a method of treating a pathogenic insect infection in a fruit, a leaf or a flower of a plant, comprising spraying said infected fruit, leaf or flower with a composition comprising an active ingredient and a carrier, wherein said active ingredient consists essentially of phenylalanine at a concentration of 4 to 15 mM or 6 to 15 mM, Wherein said carrier comprises a non-ionic surfactant in a concentration of at least 0.1%wherein said treatment results in increased fruit yield compared to an untreated control, wherein said pathogenic infection is a moth infection, wherein said moth comprises a larva of said moth, specifically a Tuta absoluta infection. Claims are further drawn to wherein said spraying is repeated at least twice and spraying is pre-harvest spraying; wherein said spraying is when said plant is at a blossom stage and spraying is in a storage facility, a greenhouse, an open field, or any combination thereof. The claims are further drawn to said composition is sprayed in combination with one or more other agricultural agents. The claims are further drawn to the method wherein said plant is not infected with a fungal infection and wherein said treating comprises ameliorating at least one symptom associated with said infection.
Bernards et al provides a review of phenylpropanoid metabolism induced by wounding and insect herbivory [entire document]. Bernards et al teach that the biosynthesis of phenylalanine is induced by herbivore damage and there is a coordinate induction of transcripts/enzymes associated with hydroxycinnamic acid, flavonoid and condensed tannin formation and that these newly synthesized phenylpropanoid-derived compounds are known to provide anti-feedant, anti-microbial, and cytotoxic effects, as well as building blocks for structural macromolecules and condensed tannins [Abstract]. Phenylpropanoids are phenolic compounds derived from phenylalanine, some of which have been implicated in plant-herbivore interactions including benzoic acids, hydroxycinnamic acids, furanocoumarins, coumarins, stilbenes, flavonoids, hydrolysable tannins, condensed tannins and lignin [pages 190, para. 3]. Phenylpropanoids can interfere with proteins in the digestive tract of chewing insects and mammals and can influence herbivore settling, feeding, oviposition, growth fecundity and/or fertility [page 192, para. 1]. The general response of plants to wounding and herbivore damage, vis a vis induced phenylpropanoid metabolism (derived from phenylalanine) and the accumulation of phenolic compounds [page 193, para. 4]. General phenylpropanoid metabolism only consists of two common steps: the deamination of phenylalanine by phenylalanine ammonia-lyase (PAL) and the 4-hydroxylation of cinnamate by cinnamate-4-hydroxylase (C4H) [page 194, para. 1; Fig 9.2 and 9.3]. Herbivory and wounding have been clearly linked to the induction of PAL at the transcript, protein and enzyme levels and PAL serves as the gateway enzyme into phenylpropanoid metabolism [page 196, para. 2 and page 198, para. 3] by providing the carbon skeletons for the formation of essentially all phenylpropanoids and their derivations [page 198, para. 3; Fig. 9.3 and Table 9.2]. There is a heavy demand for phenylalanine brought about by wound-induced phenylpropanoid metabolism [page 198, para. 1]. In summary, Bernards states that it is clear that the biosynthesis of phenylalanine is induced by herbivore damage [page 208, para. 1].
Therefore, after considering Bernards et al as a whole, one of ordinary skill in the art would understand that phenylalanine is an essential for the synthesis of phenylpropanoids and that these compounds provide anti-feedant, anti-microbial, and cytotoxic effects, as well as building blocks for structural macromolecules and condensed tannins. Phenylpropanoids can interfere with proteins in the digestive tract of chewing insects and mammals and can influence herbivore settling, feeding, oviposition, growth fecundity and/or fertility. Furthermore, endogenous phenylalanine synthesis and PAL induction have been clearly linked to herbivory and wounding by insects and other pests.
Bernards et al do not teach a method of treating a pathogenic insect infection in a fruit, leaf or flower of a plant, comprising spraying said infected plant with a composition comprising an active ingredient and a carrier, wherein said active ingredient consists or consists essentially of phenylalanine at a concentration of 4 to 15 mM or 6 to 15 mM, Wherein said treatment results in increased fruit yield compared to an untreated control, wherein said pathogenic infection is a moth infection, wherein said moth comprises a larva of said moth, specifically a Tuta absoluta infection. Bernards et al do not teach wherein said spraying is repeated at least twice and spraying comprises pre-harvest spraying; and wherein said spraying is when said plant is at a blossom stage. Bernards et al do not teach said composition is sprayed in combination with one or more other agricultural agents or wherein said plant is not infected with a fungal infection and wherein said treating comprises ameliorating at least one symptom associated with said infection.Bernards et al do not teach a method of treating a pathogenic insect infection wherein said treating is with less white sediments compared to a control
Grey et al teach that plant secondary compounds have long been recognized to be a major determinant in the acceptability of plants to their herbivores and that phenolic compounds have been shown to be important factors in the defense of plants against fungal infection, insect herbivory and parasitic nematodes [page 1463, para. 1]. Grey et al further teach that plants may constitutively accumulate these phenolic compounds as a means of passive defense or they may be rapidly and systemically accumulated in response to attack by pests and disease [page 1464, para. 2]. In both constitutive and systemically induced defense systems the magnitude of the response is due, in part, to the supply of the primary precursor L-phenylalanine and that a number of studies have shown that the resistance of plants to both disease and insect pests can be enhanced by systemically applying phenolic precursors and thereby boosting the production of phenolics [page 1464, para. 1]. Grey et al teach treating rape plants with 20mM of phenylalanine (PHE) for 10 hours a day for 3 days (which reads on the application is repeated at least twice) [page 1464, para. 4] and found that the PHE treatment resulted in a significant increase in the phenolic content of the rape plants; an increase of 13% above the levels observed for the control plants [page 1466, para. 1]. Although the Grey et al experiment resulted in deterring a vertebrate pest, pigeons, from damaging crops, the methodology does not rely on reallocation of plant PHE resources away from primary metabolism to the production of secondary metabolites [page 1469, para. 3] because the plants were provided with an exogenous source of PHE. By providing the plants with exogenous PHE, the trade-off between the benefits of increased resistance and the costs (reduced fitness, growth) may be minimized [page 1469, para. 3].
Therefore, after considering Grey et al as a whole, one would understand that 20 mM exogenously applied phenylalanine results in the decrease of vertebrate herbivory. One would also understand that exogenously applied phenylalanine can be readily taken up by the plant and boost the production of phenolics without reallocation of plant PHE resources from primary metabolism to the production of secondary metabolites.
Taken in combination with the teachings of Bernards et al, Grey et al provides a solution to the heavy demand for phenylalanine brought about by wound-induced phenylpropanoid metabolism (as would be seen in an active Tuta absoluta infestation) by applying exogenous phenylalanine to the plant which is readily taken up by the plant and boosts the endogenous production of phenolics. Furthermore, by supplying the plant with exogenous phenylalanine, it would increase the benefits of increased resistance and reduce the reliance of reallocation of plant phenylalanine away from primary metabolism.
FR2405650 discloses an example of the practical conditions for treatment with (L) phenyl alanine of tomatoes (which reads on wherein said plant is a crop-claim 11) [page 3, lines 82-83, Translation]. FR2405650 disclose that when the seedlings have two developed leaves, the tanks are immersed daily for 10 hours in a solution of (L) phenyl alanine M/100, this for 3 consecutive days (which reads on contacting said plant with a composition comprising a carrier and phenylalanine-claims 1, 24 and 27; wherein said contacting is repeated at least twice-claim 15) [page 3, lines 99-101-Translation]. FR2405650 teach that the composition is based on (L) phenyl alanine 1.65 g of (L) phenylalanine are dissolved in water (which reads on a carrier-claim 1) in an amount sufficient to obtain a total volume of 1000 ml (the MW of phenylalanine is 165g/mol and FR2405650 teach dissolving 1.65 g of phenylalanine in 1L volume which equals approximately 10 mM concentration of phenylalanine-claims 1, 8, 20, 24 and 27) [page 3, lines 89-90-Translation]. FR2405650 teach that the treatment carried out the phenylalanine completely protects the tomato plants against a fungal infection (Fusarium wilt) and that the size of the plants is not influenced by the treatment with phenylalanine [page 4, lines 136-138].
Therefore, after considered FR2405650 as a whole, one of ordinary skill in the art would understand the protocol for treating a fungal infection in a crop plant by exogenously applying approximately 10 mM phenylalanine to the plant. One would also understand that the concentrations of phenylalanine needed to treat and control a fungal infection are similar to the concentrations used to control vertebrate herbivory (as taught by Grey et al).
Teixeira et al teach foliar application of amino acid treatments, including phenylalanine were applied at the V4 growth stage of soybean (which reads on a crop plant and spraying is pre-harvest spraying) with a CO2 pressurized backpack sprayer [page 3, left col., lines 1-3]. Teixeria et al teach foliar application of amino acids, including phenylalanine, alone or in combination (which reads on plant nutrients, plant growth regulators and fungicides), increased PPO activity and play an important role in signaling in plants, which may increase the activity of antioxidant enzymes and resistance enzymes such as PPO. Teixeira et al teach applying 3-30 mM concentrations of phenylalanine onto seeds and plants [page 2, rt col. para. 5; Table 1]. Teixeira et al teach that phenylalanine applied to the plants increased the activity of PAL enzyme by 165% as compared to the control plants [page 10, para. 1; Figure 4D and Figure 5A]. Furthermore, a PPO plays an important role in plants as it provided resistance to the attack of pathogens and diseases [page 12, rt col., paras 2 and 3].
Therefore, after considering Teixeira et al as a whole, one of ordinary skill in the art would understand that spraying a crop plant with amino acids, including phenylalanine, would increase the activity of PAL enzymes and increase PPO activity which plays an important role in providing resistance to the attack of pathogens and disease.
Godfrey et al teach that Tuta absoluta is a serious and devastating pest of tomatoes, causing crop losses as high as 80 to 100% in areas where it is found. Godfrey et al teach that the insect bores into leaves, stems, flowers and fruit, often leaving the fruit unmarketable and altering plant growth structure through destruction of stem apical buds or flower buds. To manage this insect, growers may be forced to greatly increase the number of insecticide application to their tomato crops [first para.].
Although the references do not specifically teach wherein said treatment results in increased fruit yield compared to an untreated control, it would naturally follow that by following the method steps, one would achieve an increased fruit yield compared to an untreated control because the plant would have more resources to dedicate to growth and fruit production void of any insect infection as compared to a plant that must allocate resources to defense. Melouk teaches the effects of phenylalanine on yield and berry quality of Thompson seedless grapevines. Melouk investigated the effects of phenylalanine (at 100, 200 or 400 ppm) on yield and berry quality [entire document]. Melouk found that spraying Thompson seedless grapevines with 400 ppm (400 ppm/165.19 g/mol = 2.4215 mM) phenylalanine increased the vine yield significantly compared to a control [page 1247, para. 3; Tables 1 and 2]. Melouk also found that phenylalanine recorded the highest cluster weight and that the number of clusters, vine yield and cluster weight were significantly affected by phenylalanine at 400 ppm [page 1247, paras. 4 and 5; Tables 1]. The weight of 100 berries was significantly increased by spraying phenylalanine clearly indicating that phenylalanine had similar effect on berry weight which increased cluster weight and consequently increased the vine yield [page 1249, para. 2]. Melouk sprayed the control plants with water containing Triton at 0.1% which was added to the spray as a wetting agent.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply phenylalanine to flowers, fruits and leaves of any plant to deter herbivory (insect, mammal, avian, etc.), treat fungal infections, protect plants from disease and pathogens and increase fruit yield compared to an untreated control. Bernards et al teach phenylalanine is an essential for the synthesis of phenylpropanoids and that these compounds provide anti-feedant, anti-microbial, and cytotoxic effects, as well as building blocks for structural macromolecules and condensed tannins. Phenylpropanoids can interfere with proteins in the digestive tract of chewing insects and mammals and can influence herbivore settling, feeding, oviposition, growth fecundity and/or fertility. Furthermore, endogenous phenylalanine synthesis and PAL induction have been clearly linked to herbivory and wounding by insects and other pests. Grey et al as teach that exogenously applied phenylalanine results in the decrease of vertebrate herbivory. Grey et al further teaches that exogenously applied phenylalanine can be readily taken up by the plant and boost the production of phenolics without reallocation of plant PHE resources from primary metabolism to the production of secondary metabolites. Taken in combination with the teachings of Bernards et al, Grey et al provides a solution to the heavy demand for phenylalanine brought about by wound-induced phenylpropanoid metabolism by applying exogenous phenylalanine to the plant which is readily taken up by the plant and boosts the endogenous production of phenolics. Furthermore, by supplying the plant with exogenous phenylalanine, it would increase the benefits of increased resistance and reduce the reliance of reallocation of plant phenylalanine away from primary metabolism. FR2405650 teaches a successful protocol for treating a fungal infection in a crop plant by exogenously applying phenylalanine to the plant. Teixeira et al teaches that spraying a crop plant with 3-30 mM concentrations of phenylalanine onto seeds and plants increases the activity of PAL enzymes and increases PPO activity which plays an important role in providing resistance to the attack of pathogens and disease. One would have been motivated to apply/spray phenylalanine on a plant to increase PAL activity and PPO activity which would in turn provide anti-feedant, anti-microbial, and cytotoxic effects as well as interfere with proteins in the digestive tract of chewing insects and mammals and can influence herbivore settling, feeding, oviposition, growth fecundity and/or fertility. Given the teachings of the cited prior art and the knowledge of the utility of phenylalanine in controlling herbivory (FR2405650 was published over 40 years ago, Grey et al was published more than 25 years ago and Bernards et al was published more than 15 years ago), one would have had a reasonable expectation of success. Grey et al reported a novel and effective method of deterring pigeons and suggests that the methodology may be useful in other vertebrate pests. Grey et al also discloses numerous studies using phenolic compounds to increase defenses in plants and control fungal infections, insect herbivory and parasitic nematodes. Bernards et al disclose numerous studies in which phenylpropanoid compounds (all derived from metabolism of phenylalanine) provide anti-feedant, anti-microbial and cytotoxic effects. FR2405650 disclose an effective method using exogenous phenylalanine which completely protected the tomato plants against a fungal infection. Melouk found that spraying Thompson seedless grapevines with 400 ppm (400 ppm/165.19 g/mol = 2.4215 mM) phenylalanine increased the vine yield significantly compared to a control [page 1247, para. 3; Tables 1 and 2].
Although the references do not specifically teach spraying said flower of said plant during a blossom stage, it would have been obvious to spray a plant during any growth stage, including the blossom stage, to deter herbivory (insect, mammal, avian, etc.), treat fungal infections and protect plants from disease and pathogens. One would have been motivated to apply/spray phenylalanine on a plant to increase PAL activity and PPO activity which would in turn provide anti-feedant, anti-microbial, and cytotoxic effects as well as interfere with proteins in the digestive tract of chewing insects and mammals and can influence herbivore settling, feeding, oviposition, growth fecundity and/or fertility. Given the teachings of the cited prior art and the knowledge of the utility of phenylalanine in controlling herbivory (FR2405650 was published over 40 years ago, Grey et al was published more than 25 years ago and Bernards et al was published more than 15 years ago), one would have had a reasonable expectation of success.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teaching of Bernards et al., Grey et al, FR2405650, Teixeira et al and Melouk and to spray a pathogenic insect infection in a fruit, a leaf, or a flower of a plant infected, including Tuta absoluta with a composition comprising an active ingredient and a carrier, wherein said active ingredient consists essentially of phenylalanine at a concentration of 4 to 15 mM (6 to 15 mM), thereby treating a pathogenic insect infection in a plant and increasing fruit yield. Bernards et al teach phenylalanine is an essential for the synthesis of phenylpropanoids and that these compounds provide anti-feedant and cytotoxic effects. Phenylpropanoids can interfere with proteins in the digestive tract of chewing insects and can influence herbivore settling, feeding, oviposition, growth fecundity and/or fertility. Furthermore, endogenous phenylalanine synthesis and PAL induction have been clearly linked to herbivory and wounding by insects and other pests. Grey et al as teach that exogenously applied phenylalanine at a concentration of 20mM applied for 10 hours a day for over 3 days results in the decrease of vertebrate herbivory. Grey et al further teaches that exogenously applied phenylalanine can be readily taken up by the plant and boost the production of phenolics without reallocation of plant PHE resources from primary metabolism to the production of secondary metabolites. Taken in combination with the teachings of Bernards et al, Grey et al provides a solution to the heavy demand for phenylalanine brought about by wound-induced phenylpropanoid metabolism by applying exogenous phenylalanine to the plant which is readily taken up by the plant and boosts the endogenous production of phenolics. Furthermore, by supplying the plant with exogenous phenylalanine, it would increase the benefits of increased resistance and reduce the reliance of reallocation of plant phenylalanine away from primary metabolism. FR2405650 teaches a successful protocol for treating a fungal infection in a crop plant by exogenously applying approximately 10mM concentration of phenylalanine to the plant. Teixeira et al teaches that spraying a crop plant with 4.676 mM phenylalanine increases the activity of PAL enzymes and increases PPO activity which plays an important role in providing resistance to the attack of pathogens and disease. One would have been motivated to spray phenylalanine on a plant to increase PAL activity and PPO activity which would in turn provide anti-feedant, anti-microbial, and cytotoxic effects as well as interfere with proteins in the digestive tract of chewing insects and mammals and can influence herbivore settling, feeding, oviposition, growth fecundity and/or fertility. Given the teachings of the cited prior art and the extensive knowledge of the utility of phenylalanine in controlling herbivory (FR2405650 was published over 40 years ago, Grey et al was published more than 25 years ago and Bernards et al was published more than 15 years ago), one would have had a reasonable expectation of success. Grey et al reported a novel and effective method of deterring pigeons using 20 mM concentration of phenylalanine and suggests that the methodology may be useful in other vertebrate pests. Grey et al also discloses numerous studies using phenolic compounds to increase defenses in plants and control fungal infections, insect herbivory and parasitic nematodes. Bernards et al disclose numerous studies in which phenylpropanoid compounds (all derived from metabolism of phenylalanine) provide anti-feedant, anti-microbial and cytotoxic effects. FR2405650 disclose an effective method using approximately 10mM exogenous phenylalanine which completely protected the tomato plants against a fungal infection.
Although the references teach the specific concentrations of phenylalanine being used in other pest models, one skilled in the art at the time the invention was made would have been motivated to use such a concentration of phenylalanine in an insect model as a matter of routine optimization and experimentation. The adjustment of particular conventional working parameters such as concentration of phenylalanine is deemed to be merely a matter of selection and routine optimization that is well within the purview of the skilled artisan. Accordingly, this type of modification would have been no more than an effort to optimize results. In the absence of any showing of criticality or unexpected results, the particular concentration of phenylalanine is an obvious variation of what was taught in the prior art and could be arrived at during routine experimentation/optimization.
Furthermore, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical (see MPEP 2144.05).
Although the references do not specifically teach adding a nonionic surfactant to the composition and spraying a fruit, leaf or flower of an infected plant, one skilled in the art at the time the invention was made would have been motivated to include a nonionic surfactant as a matter of routine optimization. The use of nonionic surfactants is well-known in the art and commonly used in spray application compositions to decrease surface tension and enhanced surface area contact. This leads to better coverage and improved potential for uptake. [Precision Laboratories 2026]. Furthermore, the specific percentage of surfactant needed would be based on the type of surfactant used, the plant material that was to be sprayed and the components of the composition. Melouk sprayed the control plants with water containing Triton at 0.1% (a nonionic surfactant) which was added to the spray as a wetting agent.
It would have been obvious to one of ordinary skill in the art at before the effective filing date of the claimed invention to combine the teaching of Bernards et al., Grey et al, FR2405650, Teixeira et al and Melouk and to spray a Tuta absoluta infected plant as taught by Godfrey et al with a composition comprising an active ingredient and a carrier, wherein said active ingredient consists essentially of phenylalanine at a concentration of 4 to 150 mM (or 4 to 15 nM or 6 to 15 mM), thereby treating a Tuta absoluta infection in a plant. Bernards et al teach phenylalanine is an essential for the synthesis of phenylpropanoids and that these compounds provide anti-feedant and cytotoxic effects. Phenylpropanoids can interfere with proteins in the digestive tract of chewing insects and can influence herbivore settling, feeding, oviposition, growth fecundity and/or fertility. Furthermore, endogenous phenylalanine synthesis and PAL induction have been clearly linked to herbivory and wounding by insects and other pests. Grey et al as teach that exogenously applied phenylalanine at a concentration of 20mM applied for 10 hours a day for over 3 days results in the decrease of vertebrate herbivory. Grey et al further teaches that exogenously applied phenylalanine can be readily taken up by the plant and boost the production of phenolics without reallocation of plant PHE resources from primary metabolism to the production of secondary metabolites. Taken in combination with the teachings of Bernards et al, Grey et al provides a solution to the heavy demand for phenylalanine brought about by wound-induced phenylpropanoid metabolism by applying exogenous phenylalanine to the plant which is readily taken up by the plant and boosts the endogenous production of phenolics. Furthermore, by supplying the plant with exogenous phenylalanine, it would increase the benefits of increased resistance and reduce the reliance of reallocation of plant phenylalanine away from primary metabolism. FR2405650 teaches a successful protocol for treating a fungal infection in a crop plant by exogenously applying approximately 10mM concentration of phenylalanine to the plant. Teixeira et al teach applying 3-30 mM concentrations of phenylalanine onto seeds and plants and specifically teaches that spraying a crop plant with 4.676 mM phenylalanine increases the activity of PAL enzymes and increases PPO activity which plays an important role in providing resistance to the attack of pathogens and disease. Melouk found that spraying Thompson seedless grapevines with 400 ppm (400 ppm/165.19 g/mol = 2.4215 mM) phenylalanine increased the vine yield significantly compared to a control [page 1247, para. 3; Tables 1 and 2]. One would have been motivated to apply/spray phenylalanine on a plant to increase PAL activity and PPO activity which would in turn provide anti-feedant, anti-microbial, and cytotoxic effects as well as interfere with proteins in the digestive tract of chewing insects and mammals and can influence herbivore settling, feeding, oviposition, growth fecundity and/or fertility and to increase fruit yeild. Given that Tuta absoluta is a serious and devastating pest of tomatoes that causes nearly total loss of the crop, one would have been motivated to spray Tuta absoluta infected plants with an effective amount of phenylalanine to increase resistance, provide anit-feedant and to deter herbivore settling, feeding, oviposition, growth fecundity and/or fertility. Furthermore, using phenylalanine to treat Tuta absoluta infestation would decrease the amount insecticides needed to control the infestation. Given the teachings of the cited prior art and the extensive knowledge of the utility of phenylalanine in controlling herbivory, one would have had a reasonable expectation of success. Grey et al, Bernards et al, FR2405650 and Teixeira et al cited studies using phenylalanine to treat and control pest infestations, including insect herbivory.
Although the references teach the specific concentrations of phenylalanine being used in other pest models, one skilled in the art at the time the invention was made would have been motivated to use such a concentration of phenylalanine to treat an infestation of Tuta absoluta as a matter of routine optimization and experimentation. The adjustment of particular conventional working parameters such as concentration of phenylalanine is deemed to be merely a matter of selection and routine optimization that is well within the purview of the skilled artisan. Accordingly, this type of modification would have been no more than an effort to optimize results. In the absence of any showing of criticality or unexpected results, the particular concentration of phenylalanine is an obvious variation of what was taught in the prior art and could be arrived at during routine experimentation/optimization.
Furthermore, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical (see MPEP 2144.05).
Applicant’s Arguments dated 26 March 2026
Applicants urge that prior art does not teach or suggest “the active ingredient consists essentially of phenylalanine at a concentration of 4 to 15 mM”. Applicant further urges that no reference bridges the gap to suggest spraying 4-15 mM phenylalanine onto insect-infected plant parts to treat the infection while achieving increased yield.
These arguments have been carefully considered but are not deemed persuasive. The prior art cited teaches the well-known and over-arching utility of phenylalanine. Bernards et al teach phenylpropanoids, including phenylalanine provide anit-feedant and cytotoxic effects but interfering with the digestive tract of chewing insects. Grey et al teach that phenylalanine at concentration of 20 mM decrease herbivory in mammals. FR2405650 teaches a successful protocol for treating a fungal infection in a crop plant by exogenously applying approximately 10mM concentration of phenylalanine to the plant. Teixeira et al teach applying 3-30 mM concentrations of phenylalanine onto seeds and plants and specifically teaches that spraying a crop plant with 4.676 mM phenylalanine increases the activity of PAL enzymes and increases PPO activity which plays an important role in providing resistance to the attack of pathogens and disease. These teaching alone show the utility of phenylalanine and the broad range of species (from fungi to mammals) that are known to benefit from the use of phenylalanine to deter herbivory (including insect herbivory). These teachings also show that the claimed concentration range is not unique and one of skill in the art would understand that optimizing for the plant, the pest, the conditions (controlled greenhouse, field plots, etc.), the infestation, etc. would be required.
Although the previously cited prior art references do not specifically teach wherein said treatment results in increased fruit yield compared to an untreated control, it would naturally follow that by following the method steps, one would achieve an increased fruit yield compared to an untreated control because the plant would have more resources to dedicate to growth and fruit production void of any insect infection as compared to a plant that must allocate resources to defense. In fact, in the absence of herbivory pressures, the overall fitness of the plant would most certainly increase. “These products 9biostimulants including phenylalanine) can increase the initial vigor of plants, and can thus increase resistance against disease or other types of stress, which can increase yield” [Teixerira, page 2, left col., para. 1].
Furthermore, Melouk teaches the effects of phenylalanine on yield and berry quality of Thompson seedless grapevines. Melouk investigated the effects of phenylalanine (at 100, 200 or 400 ppm) on yield and berry quality [entire document]. Melouk found that spraying Thompson seedless grapevines with 400 ppm (400 ppm/165.19 g/mol = 2.4215 mM) phenylalanine increased the vine yield significantly compared to a control [page 1247, para. 3; Tables 1 and 2]. Melouk also found that phenylalanine recorded the highest cluster weight and that the number of clusters, vine yield and cluster weight were significantly affected by phenylalanine at 400 ppm [page 1247, paras. 4 and 5; Tables 1]. The weight of 100 berries was significantly increased by spraying phenylalanine clearly indicating that phenylalanine had similar effect on berry weight which increased cluster weight and consequently increased the vine yield [page 1249, para. 2].
Lastly, while Applicant states that the prior art teaches: (a) systemic application of 20 mM phenylalanine to deter vertebrates (Grey et al.); (b) immersion seedlings in 10 mM phenylalanine to treat fungal infections (FR2405650); and (c) spraying approximately 2.42 mM phenylalanine on healthy grapvines to improve yield (Melouk), Applicants have failed to summarize the other cited prior art which teaches 1) phenylpropanoids, including phenylalanine provide anit-feedant and cytotoxic effects but interfering with the digestive tract of chewing insects (Bernards et al) and 2) applying 3-30 mM concentrations of phenylalanine onto seeds and plants and specifically teaches that spraying a crop plant with 4.676 mM phenylalanine increases the activity of PAL enzymes and increases PPO activity which plays an important role in providing resistance to the attack of pathogens and disease (Teixerira et al). These teachings were chosen, from numerous publications, to show the well-known utility of phenylalanine and also to show that the claimed ranges used do not represent unexpected results.
Therefore, the teachings make obvious the claimed invention.
Conclusion
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.
Examiner’s Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAREN M REDDEN whose telephone number is (571)270-0298. The examiner can normally be reached 730-6 Monday-Thursday.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Shubo (Joe) Zhou can be reached on (571) 272-0724. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KAREN M REDDEN/Primary Examiner, Art Unit 1661
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