DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This new non-Final rejection office action is formulated to address the new matter rejection, see analysis below.
Election/Restrictions
The amendments received on 03/24/2026 have been entered, claims 4-10, 14-23 are pending.
Claims 4-9 and 14-19 are remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made with traverse in the reply filed on 11/07/2023.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Therefore claims 10 and 20-23 are examined in this office action.
Rejections that are withdrawn
Objection to drawings is withdrawn in light of applicant’s amendment of drawings to include legible information in Figure 3A, 3B, 4, 6A-6D, 11A-11F and 12A-12E.
35 USC § 112 new matter rejection has been withdrawn in light of applicant’s amendment of claim 10 by deleting the unsupported statement of “at least 2-fold increase”.
Claim Interpretation
In claim 10, the phrase “inducible VirE2 gene” is interpreted as defined by Oxford reference for “genetic induction” as “The process of gene activation by an inducer molecule, resulting in transcription of one or more structural genes.” (see previously enclosed PDF). Therefore, it is interpreted to induced by use of promoter that result in transcription of VirE2 gene to express VirE2 protein which will, in turn, lead to activation/inhibition of additional genes that are regulated by VirE2.
In claim 10 recitation of the phrase “facilitates transformation’ is interpreted since applicant has not expressly defined. See for example Merriam-Webster dictionary define “facilitate” as to make (something) easier, to help bring (something) about, to help (something, such as a discussion) run more smoothly and effectively. Since the claims are targeted to a product as a transgenic plant or plant cell, to make transformation easier would be a intended use. Furthermore, the intended use is not given any patentable weight because the claim is not a method of transformation – it is a transformed plant. Any successful transformation reads into the claim.
Following obviousness analysis has been modified since applicant has amended claims 10 and 20 to recite VirE2 localizes to cytoplasm and induction of VirE2 increase transformation efficiency.
Claim Rejections - 35 USC § 103
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 10 and 20-23 are rejected under 35 U.S.C. 103 as being unpatentable over Duan et al. (Published Year: 2008, Journal: Molecular Plant Microbe Interactions, Vol: 31(4), pages 449-459) (included in IDS submitted on 06/15/2022), and further in view of Denskonskiene et al. (Published : 2015, Journal: MPMI 28(11):1247-1255), further in view of Schlücking et al. (Published: 2015, MPMI Vol. 28(11):1247-1255), Year: 2013, Journal: Molecular Plant, Volume 6 , Number 6 , Pages 1814–1829), further in view of Zheng et al. (Published Year: 2006, Journal: The plant Journal, Vol: 48(4), pages 592-605) (included in IDS submitted on 06/15/2022).
Claims are drawn to a transgenic Arabidopsis plant or plant cell comprising an inducible VirE2 gene that facilitates transformation and when induced: encodes cytoplasmically localized VirE2 protein in the plant or plant cell that localizes to the cytoplasm outside of the nucleus upon induction, and upregulates a transcription factor WRKY33 relative to WRKY33 expression in a wild-type Arabidopsis plant or plant cell.
Regarding claim 10, Duan et al. teaches transgenic Arabidopsis lines that constitutively express VirE2 (E2-OE) (i.e. overexpressed) and their result showed the expression increases the plant defense responses to Agrobacterium infection wherein PR3, At4g00970, and At4g23260 were detected at higher expression levels (upregulated) in VirE2 constitutive expression lines wherein the overexpression were confirmed by qRT-PCR (page 452, left last and second last and right first paragraph, Figure 7). Duan et al. teaches an pEarleygate202 expression vector was used for constitutive expression of VirE2, which was transformed into Col-0 plants of A. thaliana using floral dip (page 456, right paragraph 2).
Duan et al. further teaches once transported into plant cell cytoplasm, VirE2 molecules coat the T-strand to protect it from degradation by host plant nucleases (page 445, right paragraph 2). Duan et al. teaches the VirE2 interacts with the transcription factors to regulate the various plant genes (page 445, right paragraph 2, Figure 4).
Duan et al. further teaches even the increased defense response due to the constitutive expression of VirE2 or VirE3 decreased Agrobacterium mediated transformation efficiency however there was more than 60% transformation (page 455, Figure 8).
Furthermore, the claims recite that the overexpression/upregulation is “VirE2 gene facilitates transformation”, and this is merely an intended use rather than a true claim limitation. However, even if one were to give weight to this, the 60% transformation efficiency taught by Duan et al. is higher than the transformation efficiency one would expect from an attempt to transform a recalcitrant plant species using a mutant Agrobacterium strain. Duan et al. teaches VirE2 facilitates T-DNA transformation (page 445, Abstract). Duan et al. teaches VirE2 is also a plant-active transcriptional activator, modulating plant gene expression to favor transformation (page 445, right last paragraph).
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The upregulation of a plant transcription factor which is WRKY33 would be obvious on the Arabidopsis plant or plant cell of Duan et al. upon screening among the Duan et al.’s transgenic Arabidopsis lines that constitutively express VirE2 (E2-OE) (i.e. overexpressed).
Duan et al. teaches transgenic Arabidopsis lines that constitutively express VirE2 (E2-OE) (i.e. overexpressed) and their result showed the expression increases the plant defense responses to Agrobacterium infection wherein PR3, At4g00970, and At4g23260 were detected at higher expression levels (upregulated) in VirE2 constitutive expression lines wherein the overexpression was confirmed by qRT-PCR (page 452, left last and second last and right first paragraph, Figure 7).
Furthermore, Zheng et al. showed the evidence that the pathogen-induced expression of the JA-regulated PR3 (At3g12500; Lorenzo et al., 2003), chitinase- and osmotin-like genes was reduced or delayed in the wrky33 mutant (Figure 8b) indicating the WRKY33 are positive regulator (i.e. upregulate) of the JA-regulated defense genes such as PR3 (page 600, left last and right first paragraph) which was also showed to be increased expression by Duan et al. (see analysis above). Thus, the upregulation of WRKY33 would be obvious upon screening among the Duan et al.’s transgenic Arabidopsis lines that constitutively express VirE2 (E2-OE) (i.e. overexpressed).
Duan et al. teaches constitutive expression of VirE2 genes which are constantly expressed in a cell to produce proteins, regardless of external stimuli or cellular conditions.
Duan et al. does not teach the VirE2 gene is inducible gene.
Denskonskiene et al. teaches chemically inducible expression of virE2 in Nicotiana benthaminana plants using IPTG inducible promoters wherein the virE2 expression resulted up to 72% of wild-type TDNA transfer (page 1247, Abstract, Figure 3). Thus, a plant with inducible virE2 gene that facilitated transformation was known in the art in Nicotiana benthaminana plants. Denskonskiene et al. teaches inducible promoters were efficient to produce Agrobacterium mediated transient plant transformation system (page 1248, right paragraph 2). Thus, the inducible expression of virE2 would also have facilitated the transformation in A. thaliana.
Furthermore, Schlücking et al. teaches about a new set of 57 vectors that enable transgene expression in transiently or stably transformed cells comprising a synthetically optimized XVE expression cassette, allowing β-estradiol mediated protein expression. Schlücking et al. teaches the vector design allows simple substitution of the driving promoter to achieve tissue-specificity or to modulate expression ranges of inducible transgene expression. Schlücking et al. teaches expression induction in Arabidopsis leaf mesophyll protoplasts, transiently transformed Nicotiana benthamiana leaves and stably transformed Arabidopsis plants. Schlücking et al. teaches their expression induction showed induced co-expression of CBL3 (Calcineurin B-like) is fully sufficient for dynamic translocation of CIPK5 (Calcineurin B-like interacting protein kinases) from the cytoplasm to the tonoplast (page 1814, Abstract). Schlücking et al. teaches CIPKs reside in cytoplasm (page 1823, last paragraph). Schlücking et al. teaches they have observed higher protein levels upon inducible expression for cytoplasmic localized CBL3 when compared to the expression levels that were achieved by using the established constitutive 35s promoter (page 1826, right paragraph 3). Schlücking et al. teaches their analysis will advance the cell biological analyses of complex regulatory protein networks in plants. (page 1826, paragraph 3).
Duane et al. teaches the expression for PR3, At4G00970, At4G23260 at least 2-fold in some of the VirE2 overexpressed Arabidopsis lines compared to the wildtype Col-0 (see Figure 7). Therefore the 2-fold increase in expression of the WRKY33 would have been obvious to the screening among the Duan et al.’s transgenic Arabidopsis lines that constitutively express VirE2 (E2-OE) (i.e. overexpressed) in further view of Schlücking et al. and Denskonskiene et al.
It would have been obvious before the effective date of filling of invention from the teachings, suggestions and motivation of Duane et al. to develop an Arabidopsis plant transformed with VirE2 gene that would encode cytoplasmically-localized VirE2 protein where it would interact with T-strand and various transcription factors, in the Arabidopsis plant cell and that would upregulate the expression of WRKY33 TF as further in view of Zheng et al. Furthermore, Denskonskiene et al. and Schlücking et al. motivate to develop the inducible VirE2 gene to be inducible allowing specifically β-estradiol mediated protein expression in cytoplasm since the VirE2 is normally localizes in cytoplasm. This would have led to the invention of a transgenic Arabidopsis plant comprising an inducible VirE2 gene. Furthermore, the increase in expression of the TF WRKY33 relative to WRKY33 expression in a wild-type Arabidopsis plant or plant cell would have been obvious upon screening among the Duan et al.’s transgenic Arabidopsis lines that constitutively express VirE2 (E2-OE) (i.e. overexpressed). Someone skilled in the art would select for increase in expression of the TF WRKY33 which were found to have to be positive regulator of the JA-regulated PR3 in Arabidopsis.
Regarding claim 20, Duan et al. teaches root transformation using Agrobacterium tumefaciens GV3101 carrying pBISN1 was used (page 457, left last paragraph) which showed slight reduction in transformation compared to wildtype in VirE2 expression line (page 455, see Figure 8 above).
Denskonskiene et al. showed the increase in induction of VirE2 gene in tobacco showed T-DNA transfer regulated in dose responsive manner in a A. tumefaciens with inducible VirE2 (see snippet of Figure 2 below). Denskonskiene et al. teaches when transgenic N. benthamiana (P35s:virE2) plants expressing VirE2 were used for agrofiltration, ICH011 constructs were able to accomplish the T-DNA transfer (Fig. 2A) compared to control plant infected with the ∆virE2 strain in a dose responsive manner (page 1248. Right paragraph 1). Therefore, such induction when done in a VirE2 expressing plant for example in Arabidopsis would have increased the transformation efficiency.
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Therefore, someone skilled in the art before effective date of filling of the invention would have expressed VirE2 gene in a plant such as Arabidopsis that would have upregulated the WRKY33 transcription factor as taught by Duane et al. and further in view of Zheng et al. Furthermore, someone skilled in the art would induce the VirE2 gene that would lead to increase in transformation efficiency relative to a non-induced plant when infected with a VirE2-deficient Agrobacterium strain as taught by Denskonskiene et al.
Regarding claim 21, Duan et al. discloses they have monitored transient gene expression as an indication of transient transformation efficiency (page 446, right first paragraph).
Regarding claims 22-23, Schlücking et al. teaches XVE fusion promoter that are inducible by β-estradiol (page 1819, left paragraph 2). Hence someone skilled in the art would develop a XVE fusion promoter that are inducible by β-estradiol for inducible protein expression on the subcellular location in cytoplasm.
Response to Applicant’s Argument
Applicant's arguments filed 03/24/2026 have been fully considered but they are not persuasive.
Applicant asserts Duan teaches that constitutive overexpression of VirE2 in Arabidopsis activates plant defense responses and reduces Agrobacterium-mediated transformation efficiency. Duan at Figures 8A-8F (showing substantially decreased transient and stable transformation in VirE2-overexpressing lines relative to wild type). Applicant argues Duan does not merely fail to demonstrate enhancement of transformation, but actually affirmatively reports that plant expression of VirE2 correlates with diminished transformation efficiency (Response to rejection, page 12 and 13, last and first paragraph).
Applicant argues Duan provides experimental evidence that plant-expressed VirE2 decreases transformation efficiency relative to wild type efficiency (Response to rejection, page 12 and 13, last and first paragraph).
Applicant argues Duan further emphasizes nuclear targeting of VirE2, noting that VirE2 contains nuclear localization signals and interacts with VIP 1 to facilitate transport of the T-complex to the nucleus. Applicant argues Duan's description of VirE2 function therefore associates nuclear localization with successful transformation (Response to rejection, page 12 and 13, paragraph 3).
Applicant argues the rejection appears to reason that because Duan discloses transgenic Arabidopsis expressing VirE2, such expression is sufficient to render the claimed invention obvious. Applicant argues the proper inquiry under § 103 is not whether a reference discloses plant expression of VirE2 in isolation, but whether the reference provides a reason to expect that plant-expressed VirE2 localized outside of the nucleus as claimed, would facilitate transformation (Response to rejection, page 13, second to last paragraph). Applicant argues Duan does not provide a reasonable expectation of success for the claimed inducible, cytoplasmically localized VirE2 configuration as in claim 10 (Response to rejection, page 13, last paragraph).
Applicant argues claim 10 requires a transgenic Arabidopsis plant or plant cell comprising an inducible VirE2 gene that encodes a VirE2 protein localized to the cytoplasm outside of the nucleus. Applicant argues the office alleges that Denkovskiene and Schlucking render obvious inducible expression of VirE2. Applicant argues neither reference provides a reason to modify Duan' s plant-expressed VirE2 system to employ inducible expression, nor do they provide a reasonable expectation that doing so would facilitate Agrobacterium-mediated transformation (Response to rejection, page 14, first paragraph).
Applicant argues Duan provides no teaching or suggestion that altering the timing of VirE2 expression would convert that deleterious phenotype into a beneficial one (Response to rejection, page 14, paragraph 2). Applicant argues Denkovskiene likewise does not cure this deficiency which places virE2 under inducible control in Agrobacterium, not in a plant genome. Applicant argues regulation of a bacterial virulence gene within Agrobacterium to control T-DNA transfer is structurally and functionally distinct from inducible expression of a VirE2 transgene integrated into the plant genome. Applicant argues Denkovskiene does not teach or suggest that inducible plant-based expression of VirE2 would facilitate transformation, nor does it address Duan' s reported reduction in transformation efficiency resulting from plant-expressed VirE2 (Response to rejection, page 14, last paragraph).
Applicant argues Schlucking describes a β-estradiol-inducible XVE expression system for regulated transgene expression in plants. Applicant argues while Schlucking demonstrates inducible expression of unrelated plant proteins in transiently and stably transformed plants, it does not relate to VirE2, does not address Agrobacterium transformation efficiency, and does not suggest that inducible timing of VirE2 expression would overcome the negative transformation phenotype reported in Duan. Applicant argues the mere existence of inducible plant expression systems does not provide a reason to apply such systems to Duan's plant-expressed VirE2 construct with an expectation of improved transformation (Response to rejection, page 15, first paragraph).
Applicant argues the Office's position assumes that because inducible promoters and plant-expressed VirE2 were known, it would have been obvious to combine them. Applicant argues however, § 103 requires more than the existence of separate teachings, it requires a reason to combine them with a reasonable expectation of success. Applicant argues Duan affirmatively teaches that plant-expressed VirE2 decreases transformation efficiency and nothing in Denkovskiene or Schlucking suggests that inducible plant expression would reverse that outcome (Response to rejection, page 15, paragraph 2). Applicant argues the cited references do not provide a reason to modify Duan to employ inducible plant-based expression of VirE2, nor would a person of ordinary skill in the art have had a reasonable expectation of success that such modification would facilitate transformation as claimed (Response to rejection, page 15, paragraph 3).
Applicant argues no cited reference establishes that PR3 upregulation necessarily requires transcriptional upregulation of WRKY33. Applicant assert Duan reports upregulation of PR3 in the presence of VirE2, and Zheng shows that loss ofWRKY33 can reduce or delay PR3 upregulation under pathogen infection conditions (Response to rejection, page 16, first paragraph).
Applicant argues plant-produced VirE2 substitute for the absence of bacterial VirE2 during Agrobacterium-mediated transformation wherein they have showed the inducible expression of and cytoplasmic localization of plant-derived VirE2 can functionally complement a bacterial virE2 deficiency and enhance transformation under those specific conditions. See paras. [0090]-[0092] (Response to rejection, page 16, last paragraph). Applicant argues Duan employs Agrobacterium strains that naturally express VirE2 and does not evaluate whether plant-produced VirE2 can functionally replace bacterial VirE2an to the contrary Duan reports that plant-expressed VirE2 reduces transformation efficiency (Response to rejection, page 17, first paragraph).
Applicant argues Denkovskiene regulates virE2 expression within Agrobacterium, but does not teach or suggest complementation of a virE2-deficient strain by inducible plant-derived VirE2. Applicant argues Schlucking and Zheng likewise do not address substitution of bacterial VirE2 by a plant-encoded VirE2 transgene, nor do they suggest that such substitution would enhance transformation (Response to rejection, page 17, second paragraph). Applicant argues the cited combination does not teach or suggest the rescue of a virE2-deficient Agrobacterium strain by inducible plant-expressed VirE2, as required by claim 20.
Applicant’s arguments are fully considered but they are not persuasive since:
Regarding argument on decreasing transformation the claim 10 recite that the overexpression/upregulation is “VirE2 gene facilitates transformation”, and this is merely an intended use rather than a true claim limitation. However, even if one were to give weight to this, the 60% transformation efficiency taught by Duan et al. is higher than the transformation efficiency one would expect from an attempt to transform a recalcitrant plant species using a mutant Agrobacterium strain. Duan et al. teaches VirE2 facilitates T-DNA transformation (page 445, Abstract). Duan et al. teaches VirE2 is also a plant-active transcriptional activator, modulating plant gene expression to favor transformation (page 445, right last paragraph). The recitation of “facilitates” does not ensure increase in transformation efficiency. Furthermore, regarding increase in transformation efficiency in claim 2o, Denskonskiene et al. clearly showed the increase in induction of expressed VirE2 gene in tobacco showed T-DNA transfer is regulated in dose responsive manner in A. tumefaciens with inducible VirE2 (see snippet of Figure 2 above). Therefore, such induction when done in a VirE2 expressing plant would have increase the transformation efficiency. Denskonskiene et al. teaches when transgenic N. benthamiana (P35s:virE2) plants expressing VirE2 were used for agrofiltration, both ICH011 were able to accomplish the T-DNA transfer (Fig. 2A) compared to control plant infected with the ∆virE2 strain (page 1248. Right paragraph 1). Therefore Duan et al. teaches effect of the VirE2 expression in Arabidopsis effect on the transcription factors for example WRKY33 in view of Zhen et al. wherein Denskonskiene et al. et al. teaches the inducing VirE2 has effect on increasing the transformation efficiency in Tobacco plant that would be translated to Arabidopsis by a skill in the art.
Regarding argument on Arabidopsis plant or plant cell comprising an inducible VirE2 gene that encodes a VirE2 protein localized to the cytoplasm outside of the nucleus, the argument was not found persuasive since claim 10 would only require a Arabidopsis plant cell comprising an VirE2 gene. The phrase “inducible virE2 gene” would mean it could be induced using a inducible promoter. Furthermore, the claim recites “when induced” and following method of induction which would be only the required limitation when the gene is induced. Therefore, the subsequent induction method and upregulation describes a process of induction wherein the invention is a transgenic Arabidopsis plant cell comprising VirE2 gene that was taught by Duan et al.
The claim is interpreted as “product by process claim”. In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) which states “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” Thus, a product-by-process claim may be properly rejectable over prior art teaching the same product produced by a different process, if the process of making the product fails to distinguish the two products.
Regarding argument on Denskonskiene et al. does not teach increase in transformation, Denskonskiene et al. teaches chemically inducible expression of virE2 in Nicotiana benthaminana plants using IPTG inducible promoters wherein the virE2 expression resulted up to 72% of wild-type TDNA transfer (page 1247, Abstract, Figure 3). Thus, a plant with inducible virE2 gene that facilitated transformation was known in the art in Nicotiana benthaminana plants. Denskonskiene et al. teaches inducible promoters were efficient to produce Agrobacterium mediated transient plant transformation system (page 1248, right paragraph 2). Thus, the inducible expression of virE2 as taught by Denskonskiene et al. would also have increased the transformation in A. thaliana which was also taught by Duan et al. that would offset the comparative reduction in transformation efficiency of Duan et al.
Duan et al. teaches transgenic Arabidopsis plant comprising overexpressed VirE2 gene that would upregulate the expression of a transcription factor WRKY33 since it is a native gene in Arabidopsis of upon screening among the Duan et al.’s transgenic Arabidopsis lines that constitutively express VirE2 (E2-OE) (i.e. overexpressed) by a skilled in the art. Furthermore, someone skilled in the art would select for increase in expression of the TF WRKY33 which were found to have to be positive regulator of the JA-regulated PR3 in Arabidopsis.
Duan et al. further teaches once transported into plant cell cytoplasm, VirE2 molecules coat the T-strand to protect it from degradation by host plant nucleases (page 445, right paragraph 2). Thus, a VirE2 localizes in and cytoplasm would interact with the transcription factors to regulate the plant genes. Converting a known gene to an inducible gene is known in the art, since the effect to different deference related genes were known in the art from teaching by Duane et al. someone skilled in the art would make it inducible in inducible expression system taught by Schlücking et al., see analysis above. Duane et al. teaches the expression for PR3, At4G00970, At4G23260 in some of the VirE2 overexpressed Arabidopsis lines compared to the wildtype Col-0 (see Figure 7). Therefore, the increase in expression of the WRKY33 would have been obvious of Duan et al. upon screening among the Duan et al.’s transgenic Arabidopsis lines that constitutively express VirE2 (E2-OE) (i.e. overexpressed) when induced using an inducible VirE2 gene in further view of Schlücking et al.
Regarding argument on Zheng et al., applicant is arguing supporting art of Zheng et al. where the whole 103 rejection is mainly based on the overexpression of VirE2 by Duan et al. in Arabidopsis plant which expressly teach an Arabidopsis plant overexpressing VirE2 gene, that is all the structure of the plant recited in claim 1, wherein VirE2 gene is induced. The mere recitation of inducing VirE2 “upregulates at expression of a TF WRKY33” would have been selected by someone skilled in the art would select which were found to have to be positive regulator of the JA-regulated PR3 in Arabidopsis.
Furthermore, Zheng et al. teaches WRKY33 is a positive regulator of these JA-regulated defense genes which comprise PR3. A skilled in the art would know that the overexpression of VirE2 that would enhance the PR3 (see Figure 7 G above) would also enhance WRKY33. Applicant itself based on this principle and Applicant does not expressly show empirical evidence that there was increase in WRKY33 (see Spec, paragraph 0057) and no such data exist to show the increase other than it would have been obvious over Zheng et al.
Furthermore, where a rejection of a claim is based on two or more references, a reply that is limited to what a subset of the applied references teaches or fails to teach, or that fails to address the combined teaching of the applied references may be considered to be an argument that attacks the reference(s) individually. Where an applicant’s reply establishes that each of the applied references fails to teach a limitation and addresses the combined teachings and/or suggestions of the applied prior art, the reply as a whole does not attack the references individually as the phrase is used in Keller and reliance on Keller would not be appropriate. This is because the test for obviousness is what the combined teachings of the references would have suggested to a person having ordinary skill in the art (PHOSITA).”
Summary
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.
Examiner’s Contact Information
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/SANTOSH SHARMA/Examiner, Art Unit 1663
/DAVID H KRUSE/Primary Examiner, Art Unit 1663
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