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 .
Please note the EXAMINER for this application has CHANGED.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on July 7, 2026 has been entered.
Applicant's Amendment to the Claims filed on July 7, 2026 is entered.
Claim status
Claim 2 is canceled. Claims 1 and 3-16 are pending.
Claims 7, and 13-16 are withdrawn.
Claims 1, 3-6, and 8-12 are under examination.
Claim Rejections - 35 USC § 112
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.
Claims 1, 3-6, and 8-12 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.
Base claim 1 recites an isolated peptide consisting of an amino acid sequence selected from the group consisting of SEQ ID Nos. 1, 3-9, 23-26. The claim then requires the limitation that the isolated peptide has a length ranging from 9 to 120 amino acids. The scope of base claim 1 is unclear because the claim requires the peptide consists of any one of SEQ ID Nos. 1, 3-9, 23-26, each of which consists of a specific amino acid length. For example, SEQ ID NO:1 is 70 amino acids. SEQ ID NO: 23 is 14 amino acids. Thus the claimed peptide may not have a length ranging from 9 to 120 amino acids. Also, because the isolated peptide consists of one of the SEQ ID Nos. 1, 3-9, 23-26 it cannot be conjugated with a histidine tail.
Claims 3-6, and 8-12 are indefinite because they depend from claim 1 and are not remedial.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 4 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Regarding claim 4, this claims does not actually require the peptide of claim 1 but rather requires a nucleic acid encoding such peptide thus failing to include all the limitations of the claim upon which it depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Response to arguments regarding prior art
The applicants’ response filed on 04/05/2026 has been fully considered but is unpersuasive. The applicants’ amendment has necessitated the new grounds of rejection regarding prior art. The applicants argue that the Ryan et al reference does not disclose the presently claimed peptides. The present rejections does not include the Ryan et al reference of the previous office action. The attached STIC report provides evidence that the US Patent 6,022,739 to Ryan et al teaches the present peptide of instant SEQ ID NO:1.
Claim Rejections - 35 USC § 102 – new grounds
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 (i.e., changing from AIA to pre-AIA ) 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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, and 3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent 6,022,739 to Ryan et al as evidenced by the attached STIC SEQ ID NO Report for instant SEQ ID NO:23:Asp Asp Ala Gln Glu Lys Pro Lys Val Glu His Glu Glu Gly).
Regarding claim 1, the ‘739 Patent teaches an isolated peptide consisting of the amino acid sequence of reference SEQ ID NO: 41 which is identical to instant SEQ ID NO: 23. See the attached STIC Report for SEQ for instant SEQ ID NO:23 showing the ‘739 Patent teaches a 14 amino acid peptide which is identical to instant SEQ ID NO: 23. Consistent with the instant specification and as defined by the present claim 1, the peptide of instant SEQ ID NO: 23 inherently has biostimulant and bioprotective activity against abiotic and biotic stress in plants.
Regarding claim 3, note that the limitation of the amino-terminal end and/or the carboxy-terminal end is optional in the base claim 1.
Thus, the ‘739 Patent anticipates instant claims 1 and 3.
Claim Rejections - 35 USC § 103 – new grounds
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 (i.e., changing from AIA to pre-AIA ) 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.
Claims 1, and 3-6 are rejected under 35 U.S.C. 103 as being unpatentable over US Patent 6,022,739 to Ryan et al as applied to claim 1, above, and further in view of Ree et al (of record).
Claim 1 is anticipated by the ‘739 Patent for reasons provided above.
Regarding claims 4-6, the ‘739 Patent teaches an isolated nucleic acid sequence encoding the polypeptide repeats within the prosystemin gene which includes reference SEQ ID NO: 41. The ‘739 Patent discloses vectors encoding such nucleic acids and host cells comprising such vectors. (See para 4, 5, 9, 11, 14, 21, FIG12-FIG 13B legends; para 75; para 79). See para 15 which recites that the “term "prosystemin nucleic acid" is used herein to refer to that subset of nucleic acids capable of encoding a prosystemin polypeptide”. One of ordinary skill in the art would have been motivated to express the peptide of the ‘739 Patent in a host cell using a vector containing nucleic acid configured to express the reference peptide of reference SEQ ID NO: 41 which is identical to instant SEQ ID NO: 23 for the rationale of expressing this peptide of interest. It would have been obvious to one of ordinary skill in the art to do such because the ‘739 Patent expressly suggests to do such. . (See para 4, 5, 9, 11, 14, 21, FIG12-FIG 13B legends; para 75; para 79).
Further, regarding instant claim 3, the ‘739 Patent does not explicitly disclose that the amino-terminal end of the peptide is modified by acetylation and/or that the carboxy-terminal end is modified by amidation.
Ree et al teaches N-terminal acetylation (Nt-acetylation) is a widespread protein modification among eukaryotes and prokaryotes alike. By appending an acetyl group to the N- terminal amino group, the charge, hydrophobicity, and size of the N-terminus is altered in an irreversible manner. This alteration has implications for the lifespan, folding characteristics and binding properties of the acetylated protein (Abstract). Nt-acetylation has many functions in the cell. A) In some cases, Nt-acetylation targets polypeptides for polyubiquitination and proteasomal degradation, and in other cases, it protects against such degradation. B) Nt-acetylation is required for the proper folding of some polypeptides. C) Protein-protein interactions (PPIs) in protein complex formation are in some cases mediated or augmented by Nt-acetylation. D) Nt- acetylation serves to target some polypeptides for membranes, either through PPIs with an integral membrane protein or through direct interactions with membrane lipids (page 5, Fig. 3 Functions of N-terminal acetylation).
Accordingly, it would have been obvious to one of ordinary skill in the art to modify the amino-terminal end of the peptide of the ‘739 Patent by acetylation to attain the desired enzymatic activity because Nt-acetylation targets polypeptides for proteasomal degradation, and in other cases, it protects against such degradation, as taught by Ree et al.
One would have a reasonable expectation of success since the methods of modifying peptides of interest by acetylation or amidation was well-known in the prior art as shown by Ree et al.
Claims 1, 8-9 and 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over US Patent 6,022,739 to Ryan et al as applied to claim 1, above, and further in view of Sawant et al (US 2021/0188726 A1, filed July 15, 2019; of record).
Claim 1 is anticipated by the ‘739 Patent for reasons provide above.
However, the ‘739 Patent does not explicitly disclose the peptide of claim 1 with at least one adjuvant, stabilizer and/or preservative.
Regarding claim 8, Sawant teaches an agricultural composition, such as water dispersible granules, or a liquid suspension composition for soil application comprising at least one amino acid, their polymers, salts or derivatives or mixtures thereof, elemental sulphur, and at least one structuring agent. The agricultural composition further includes plant growth promoters (Abstract). The amino acids may be peptides [0037] and are present in a concentration range of from 0.1% to 70% by weight of the total composition [0039]. Sawant et al explicitly disclose an adjuvant (see para 0069).
Regarding claim 9, Sawant teaches that amino acids may be peptides and are present in a concentration range of from 0.1% to 70% by weight of the total composition. Sawant teaches that amino acids may be peptides and are present in a concentration range of from 0.1% to 70% by weight of the total composition. Further, amino acids are very useful to improve the production and the quality of the crop as they are building blocks of proteins, which exert manifold functions in plant metabolism, and as metabolites and precursors wherein they are involved with plant defense, stress management. Accordingly, one of ordinary skill in the art would have been capable of arriving at a peptide concentration ranging from 0.01 picomolar (pM) to 100 pM though routine experimentation based on the desired function of the amino acid, as taught by Sawant. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
Sawant et al discloses an agricultural composition, such as water dispersible granules, or a liquid suspension composition for soil application comprising at least one amino acid, their polymers, salts or derivatives or mixtures thereof, elemental sulphur, and at least one structuring agent. The agricultural composition further includes plant growth promoters (Abstract). The amino acids may be peptides [0037] and are present in a concentration range of from 0.1% to 70% by weight of the total composition [0039].
Regarding claim 11, Sawant et al disclose the liquid suspension may be an aqueous suspension formulation (i.e., a water-based liquid composition) [0032] comprising wetting agents (i.e., an adjuvant) [0069].
Regarding claim 12, Sawant et al disclose he agricultural composition in the form of water dispersible granules is made by various techniques such as freeze drying (i.e., lyophilized form) ([0127]). The composition can also be useful to improve plant vigor and mitigate plant stresses like saline stress, drought stress, heat stress, cold stress, salt stress, micro-nutrient stress and any other biotic and abiotic stresses of crop plant ([0136]). Improved plant vigor includes improved defense mechanism of the plant such as induced tolerance against fungi, bacteria, viruses and/or insects ([0137]). Sawant teaches that amino acids are very useful to improve the production and the quality of the crop as they are building blocks of proteins, which exert manifold functions in plant metabolism, and as metabolites and precursors wherein they are involved with plant defence, stress management [0005].
The level of skill in the art was high before the effective filing date of the presently claimed invention.
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Sawant discloses wherein the composition comprises amino acids.
Accordingly, it would have been obvious to one of ordinary skill in the art to have the amino acid sequence represented by reference SEQ ID NO: 41 into the composition of Sawant since it is a known and effective amino acid sequence useful for augmenting plant defenses, as taught by the ‘739 Patent.
Claims 1, 8, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over the ‘739 Patent, above) in view of Sawant et al, (above), as applied to claims 1 and 8 above, and further in view of de Souza et al (Plant growth-promoting bacteria as inoculants in agricultural soils, May 22, 2015; of record).
As discussed above, claim 8 is rendered obvious over the ‘739 Patent in view of Sawant.
However, the ‘739 Patent in view of Sawant do not disclose that the composition further comprises a microorganism selected from the group consisting of mycorrhizal fungi, saprophytic fungi, plant growth promoting bacteria, or Bacillus thuringiensis spores.
The reference of de Souza teaches that plant growth-promoting bacteria (PGPB) are bacteria that can enhance plant growth and protect plants from disease and abiotic stresses through a wide variety of mechanisms.
The level of skill in the art was high before the effective filing date of the presently claimed invention.
One of ordinary skill in the art would have been motivated to add bacterial inoculants to the composition rendered obvious over the ‘739 Patent in view of Sawant because de Souza teaches it can contribute to increased agronomic efficiency by reducing production costs and environmental pollution, once the use of chemical fertilizers can be reduced or eliminated if the inoculants are efficient (abstract). The introduction of beneficial bacteria in the soil tends to be less aggressive and cause less impact to the environment than chemical fertilization, which makes it a sustainable agronomic practice and a way of reducing the production costs (page 412, Conclusions). As discussed above, Sawant discloses agricultural compositions for soil application comprising at least one amino acid and plant growth promoters.
It would have been prima facie obvious to one of ordinary skill in the art to formulate the composition of Sawant to comprise a plant growth promoting bacteria since plant growth-promoting bacteria are bacteria that can enhance plant growth and protect plants from disease and abiotic stresses and their introduction to soil tends to be less aggressive and cause less impact to the environment than chemical fertilization, as taught by de Souza.
Conclusion
No claim is allowed.
Related prior art which may be applied in a future office action:
US 20050223441 to Ryan et al.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERINE S HIBBERT whose telephone number is (571)270-3053. The examiner can normally be reached M-F 8:00-5:00.
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, Melissa Fisher can be reached at 571-270-7430. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/CATHERINE S HIBBERT/ Primary Examiner, Art Unit 1658
