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 .
Application Status and Election
Claims 1-13 are pending.
Applicant’s election without traverse of Group II, encompassing claims 3-5 in the reply filed January 9, 2026 is acknowledged. In the restriction requirement, claim 5 was inadvertently not assigned a group. Because claim 5 depends from claim 3 and is directed to the recombinant fungus, it will be examined along with claims 3-4. Claims 1-2 and 6-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected groups, there being no allowable generic or linking claim.
Claims 3-5 are under examination.
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in China on January 21, 2022. It is noted, however, that applicant has not filed a certified copy of the CN202210069879.X application as required by 37 CFR 1.55. Applicant has provided an Access code in the Application Data Sheet, but the certified copy has not been received. It is ultimately Applicant’s responsibility to assure that the certified copy is filed.
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code on pages 7 and 13. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
Claim Objections
Claim 3 is objected to because of the following informalities:
Claim 3 recites “wherein the recombinant fungal expression plasmid is inserted with a pine longifolene synthesis gene” which is grammatically incorrect. It is suggested that the claim recite “wherein the recombinant fungal expression plasmid comprises a pine longifolene synthesis gene.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 4-5 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 4 recites “wherein the pine longifolene synthesis gene has a nucleotide sequence set forth in SEQ ID NO: 1”. Claim 4 is indefinite because “a nucleotide sequence” is interpreted as any two adjacent nucleotides within the sequence of SEQ ID NO 1, but it is not clear what subset of nucleotides are necessary for the sequence to be considered a “pine longifolene synthesis gene”.
Claim 5 is rejected for depending from claim 4 and not remedying the indefiniteness.
To overcome this rejection, it is suggested that claim 4 recite “wherein the pine longifolene synthesis gene has the nucleotide sequence set forth in SEQ ID NO: 1” or “wherein the pine longifolene synthesis gene comprises SEQ ID NO: 1”.
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.
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 3 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Lacey (Lacey et al., Journal of Invertebrate Pathology (2015), 132: 1-41) in view of Stamets (US 20040213823 A1), Szmigielski (Szmigielski et al., Environ Sci Pollut Res (2012), 19: 2860-2869), Román-Ruíz (Román-Ruíz et al., Arthropod-Plant Interactions (2012), 6: 611-320) and Hassan (Hassan et al., Chemical Engineering Science (2020), 226: 115799).
Regarding claims 3 and 5, Lacey teaches that entomopathogenic fungi, including fungi from the Metarhizium genus, have been developed as a means of microbial control of insect pests (Section 4.1, Table 3). Lacey teaches that Metarhizium species have been mass-produced so that they can be applied as sprays or granules (page 15, ¶1-2). Lacey teaches the basic mode of action of entomopathogenic fungi and highlights the need for sufficient numbers of infecting propagules (i.e., conidia, spores) contact a susceptible host (page 15, ¶3). Lacey teaches fungal species, including Metarhizium species, can be improved through genetic manipulation including inserting specific genes in to the fungal genome (page 15, ¶4). Lacey teaches that insects can be attracted or repelled by fungal volatiles or metabolites which could enhance or deter activity (page 16, ¶7).
Lacey does not teach genetically manipulating the Metarhizium species by including a gene that produces an attractant including the longifolene synthesis gene.
Stamets teaches that one problem with using fungi as insecticides is that the fungal spore itself can act as an insect repellant ([0011]). Stamets teaches there is a need in the field for improved attractants and baits in general for fungal pesticides to attract insects ([0016]). Stamets teaches that the “fragrance signature” of the fungal mycelium is a strong attractant to insects ([0030]). Stamets teaches combining the mycopesticidal spores, including those of the species Metarhizium anisopliae ([0061]) with attractant extracts ([0044]). Stamets teaches that pine is a preferred wood of many insects ([0043]).
Szmigielski teaches the identification of volatiles from Pinus silvestris (i.e., pine trees) that are attractive to the insect Monochamus galloprovincialis, the black sawyer beetle (Abstract, Fig 1). Szmigielski teaches longifolene was a main volatile emitted from pine tree bark (Fig 3). Szmigielski teaches that longifolene has been detected as a volatile previously from pine bark and twigs (page 2866, ¶4). Szmigielski teaches that longifolene has an atmospheric lifetime of several days, making it a plausible signaling molecule (i.e., an attractant) to insects (page 2866, ¶4). Szmigielski suggests researchers focus on longifolene (page 2867, ¶3).
Román-Ruíz teaches longifolene is an attractant to parasitoid wasps (Fig 1).
Hassan teaches longifolene is a woody volatile typically isolated from plants (Abstract). Hassan teaches genetically engineering the yeast S. cerevisiae (i.e. single-celled fungal cell) by introducing a gene ending longifolene synthase gene from Pinus sylvestris (i.e., a pine longifolene synthesis gene, PsTPS) (Abstract). Hassan teaches the PsTPS gene was introduced into S. cerevisiae on a plasmid (Section 2.1). Hassan teaches metabolic engineering yeast to produce longifolene (Section 3.2).
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to have introduced the plasmid comprising the PsTPS gene taught in Hassan into the entomopathogenic Metarhizium species taught in Lacey. It would have amounted to the simple combination of known elements by known means to yield predictable results. The skilled artisan would have predicted that recombinant Metarhizium fungus with the PsTPS gene could be produced because 1) Lacey teaches that Metarhizium species have been genetically engineered to express heterologous genes, like those encoding toxic peptides to increase virulence, and 2) Hassan demonstrates introduction of the PsTPS gene into a fungal species. The skilled artisan would have been motivated to do so because longifolene is a known insect attractant, as demonstrated by Szmigielski and Román-Ruíz, and Lacey teaches that sufficient infection rates are a known variable to develop an effective entomopathogenic biocontrol fungus. Additionally, Stamets teaches combining the extract volatiles with fungal conidia to bait insects to the pathogenic conidia. The skilled artisan would have recognized that having the fungal species produce the volatile attractant would eliminate the need for extracting and purifying longifolene from different sources, simplifying the process.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Lacey (Lacey et al., Journal of Invertebrate Pathology (2015), 132: 1-41), Stamets (US 20040213823 A1), Szmigielski (Szmigielski et al., Environ Sci Pollut Res (2012), 19: 2860-2869), Román-Ruíz (Román-Ruíz et al., Arthropod-Plant Interactions (2012), 6: 611-320) and Hassan (Hassan et al., Chemical Engineering Science (2020), 226: 115799), as applied to claims 3 and 5, and further in view of Genbank (EF679332.1, Pinus sylvestris longifolene synthase mRNA, complete cds, available July 15, 2008) and Kazusa (Metarhizium anisopliae codon usage, http://www.kazusa.or.jp/codon/cgi-bin/showcodon.cgi?species=5530, retrieved from Web Archive capture from June 2020).
Regarding the sequence of SEQ ID NO: 1, using a readily available codon analysis tool, it appears that each amino acid encoded by SEQ ID NO 1 is encoded by single codon. For instance, all 36 alanine (A) codons in SEQ ID NO 1 are GCC. See OA Appendix.
The teachings of Lacey, Stamets, Szmigielski, Román-Ruíz, and Hassan are recited above and applied as for claims 3 and 5. Lacey also teaches one common entomopathogenic fungus species used for insect control and has been genetically engineered is Metarhizium anisopliae (Section 4.1). Hassan also teaches the gene encoding longifolene synthase from Pinus sylvestris is Genbank Accession number EF679332.1 (Section 2.1). Hasan also teaches the coding sequence for the PsTPS gene was codon optimized for expression in S. cerevisiae (Section 2.1).
Lacey, Stamets, Szmigielski, Román-Ruíz, and Hassan do not teach the sequence of the PsTPS gene.
Genbank teaches the coding sequence for the longifolene synthase from Pinus sylvestris.
Kazusa teaches the codon usage of Metarhizium anisopliae, including the most used codons for each amino acid.
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to have optimized the codon usage of the plant PsTPS gene taught in Hasan and Genbank using the most used codon in Metarhizium anisopliae for each amino acid as provided by Kazusa before introducing the plasmid into the Metarhizium anisopliae fungal species that was rendered obvious for claim 1. It would have amounted to codon-optimizing a known sequence in known ways to yield predictable results. Replacing each of the codons in the native PsTPS coding sequence with the most utilized codon as reported in Kazusa would generate a sequence that is 100% identical to SEQ ID NO 1. For instance, Kazusa teaches the most common codon used in Metarhizium anisopliae for Methionine (M), Alanine (A), Gln (Q) and Isoleucine (I) are ATG, GCC, CAG, ATC. The first 12 nucleotides of the PsTPS coding sequence using Kazusa’s table would be ATGGCCCAGATC, which are the first 12 nucleotides of SEQ ID NO 1. The skilled artisan would have predicted that the PsTPS coding sequence could be optimized for Metarhizium anisopliae, and been motivated to do so, because Hassan teaches the need for codon optimization when expressing a plant gene in a fungal species.
Conclusion
No claims are allowable.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERINE KONOPKA whose telephone number is (571)272-0330. The examiner can normally be reached Mon - Fri 7- 4.
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/CATHERINE KONOPKA/Primary Examiner, Art Unit 1635