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 .
Status of Claims
The response submitted on 10/21/2025 has been entered. Claims 1-4, and 8-22 are pending.
Claims 5-7 have been cancelled.
Claims 3-4 and 8-22 remain withdrawn.
Claims 1, 10-13, 15-16, and 22 have been amended.
Claims 1-2 are examined in this Office Action.
Objections and Rejections that are Withdrawn
All rejections of claims 5 and 6 have been rendered moot by Applicants cancellation of the claims.
The objection to the Specification has been withdrawn in light of Applicant’s amendment to
the Specification.
The objection to claim 2 has been withdrawn in light of Applicant’s amendment to the claim.
The Improper Markush Group rejection to claims 1 and 2 has been withdrawn in light of Applicant’s amendments to the claims.
The 35 USC 103 rejection to claims 1 and 2 has been withdrawn in light of Applicant’s amendments to the claims.
The text of those sections of Title 35, U.S. Code, not included in this action, can be found in a
prior Office action.
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.
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.
Indefiniteness
Claims 1 and 2 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 1 recites “wherein the stink bug gut binding peptide comprises an amino acid sequence at least 95% identical to the full-length amino acid sequence as set forth in SEQ ID NO: 1 or SEQ ID NO: 7”.
It is noted that both SEQ ID NO: 1 and SEQ ID NO: 7 are each 7 amino acids long. Changing just one amino acid in either of these sequences results in a sequence with 85.7% sequence identity to SEQ ID NO: 1 or SEQ ID NO: 7. Thus, it is unclear how one can attain an amino acid sequence with 95% sequence identity to SEQ ID NO: 1 or SEQ ID NO: 7. The amino acid sequences are either 100% identical to SEQ ID NO: 1 or SEQ ID NO: 7; or, with any changes, 85.7% (or less) identical to SEQ ID NO: 1 or SEQ ID NO: 7.
Written Description
Claims 1-2 remain rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. All dependent claims are included in these rejections unless they include a limitation that overcomes the deficiencies of the parent claim. This is a modified rejection necessitated by the claim amendments.
The claims are broadly drawn to a modified insecticidal protein comprising an insecticidal
protein, wherein the insecticidal protein has been modified to include at least one stink bug gut binding
peptide.
Applicant describes:
Insecticidal protein ARP147, an ETX/Mtx2-type protein (page 3, 0011).
Stink bug gut binding proteins NvBP1, NvBP5, and ABP1-5 (SEQ ID NOs: 1-7, respectively) (Table1, page 6).
21 constructs comprising ARP147 modified with NvBP1 and ABP5 (page 10, 0034; Drawings, Figure 2).
Applicant does not describe:
Any modified insecticidal protein other than ARP147.
Example 4 of the instant specification describes the modification of insecticidal protein ARP147- MBP. As there was little information on domains of ETX/Mtx2 proteins that are important for toxicity, a wide range of sites including alpha helices, beta sheets and loop regions that are predicted to be on the exterior of ARP147 were selected for modification (page 10, 0035).
NvBP1 was incorporated into eight sites in ARP147 by addition- and into 13 sites by substitution- of existing amino acid sequences, resulting in a total of 21 constructs (Figure 2). Six sites (one addition at AA43; and five substitutions AA70-76, AA172-178, AA207-214, AA224-230 and AA269-275 were also used for ARP147 modification with ABP5 (Figure 2) (page 11, 0036).
Example 5 of the instant specification describes the binding of the 12 modified ARP147-MBP to N. viridula gut proteins. NvBP1-modified constructs with modifications at AA172-178, 207-214 and 269-275 showed increased binding relative to native, with the strongest binding for NvBP1 substitution of AA207-214. NvBP1-modified constructs with modifications at AA224-230, 43 and 70-76 showed decreased binding relative to native. ABP5-modified constructs with modifications at sites AA70-76, 172- 178 and 269-275 showed increased binding relative to native, with modification at AA172-178 showing the strongest binding. No significant change in binding relative to native ARP147-MBP was seen for the other three ABP5-modified proteins. Taken together, sites AA 172-178 and AA 269-275 resulted in increased binding for both peptides, while sites AA 207-214 and AA70-76 resulted in increased binding for a single peptide, NvBP1 and ABP5, respectively (page 11, 0037).
Example 6 of the instant specification describes the impact of the twelve peptide-modified ARP147- MBP on second instar N. viridula nymphs. Toxicity was significantly increased for four NvBP1-modified constructs: AA70-76, 172-178, 207-214, and 224-230. For ABP5-modified constructs, toxicity was significantly enhanced for the following four constructs: AA43, 207-214, 224-230, and 269-275 (page 12, 0039).
Additionally, BONNING (Bonning et al., Pub. No.: US 2013/0097729 A1, Pub. Date: Apr. 18, 2013; see IDS dated 01/14/2024) describes the construction of novel, aphicidally active Cyt2Aa by introducing an aphid gut binding peptide into the toxin. Constructs for addition to, or substitution of, the Cyt2Aa loops with the 12 amino acid GBP3.1 or variants thereof were made (Bonning, page 9, paragraph 0093).
Two addition mutants, Cyt2Aa-His-Ek-GBP-AL1 (CGAL1) and Cyt2Aa-His-Ek-GBP-AL3 (CGAL3) were tested for gut binding and toxicity (Bonning, page 9, paragraph 0094).
BONNING describes that changes in the ability of Cyt2Aa to bind to pea aphid gut proteins following introduction of GBP3.1 were examined. Very strong binding was seen for active CGAL1 to the whole aphid BBMV whereas binding of active CGAL3 was barely detectable. It is believed that the difference in the abilities of active CGAL1 and active CGAL3 to bind to whole aphid BBMV proteins may result from differences in the accessibility of the GBP3.1 peptide; and that the peptide within loop3 in CGAL3 may be buried within the core structure of Cyt2Aa (Bonning, page 11, paragraph 0103).
Furthermore, BONNING describes mosquitocidal activity of the substitution mutants, CGSL1, CGSL2, CGSL4, CGSL5 and CGSL7 on A. aegypti. CGSL1 and CGSL4 maintained toxicity; however, the remaining three mutants, CGSL2, CGSL5 and CGSL7 showed a decrease in toxicity against A. aegypti (Bonning, page 15, paragraph 0138).
In regard to the decrease in functional activity of the three substitution mutants, CGSL2, CGSL5 and CGSL7, it is believed that any changes to loops 2, 5 and 7 affect the control toxicity of Cyt2Aa. In fact, structure-function studies on Cyt2Aa implicated amino acids in loops 2, 5, and 7 in pore formation. Addition or substitution of GBP3.1 to these loops is believed to have altered the pore forming toxin structure to the extent that the toxin loses its pore forming ability. Structure-function studies of Cyt2Aa indicated that (i) amino acids in loop 2 and the loop 2 flanking helices (aA and aB) are important for pore formation; (ii) amino acids in loop 5 and the loop 5 flanking β5 and β6 are involved in pore formation and are inserted into the membrane; (iii) two amino acids from β7, which is at the N-terminal end of loop 7 are inserted into the membrane during pore formation. The loss of CGAL7 toxicity may result from the fact that GBP3.1 is located next to β7 which may affect the pore forming ability of the toxin (Bonning, page 15, paragraph 0139).
The claims encompass an extremely large genus of compositions comprising all possible insecticidal proteins and all possible modifications to said insecticidal proteins. Applicants have reduced to practice one insecticidal protein, ARP147, and two stink bug gut binding peptides, ABP5 (SEQ ID NO: 7) and NvBP1 (sequence SEQ ID NO: 1). Additionally, Applicants have reduced to practice NvBP1-modified constructs with modifications at AA172-178, 207-214 and 269-275 increasing binding, and modifications of NvBP1 at AA70-76, 172-178, 207-214, and 224-230 increasing toxicity; ABP5-modified constructs with modifications at AA70-76, 172-178 and 269- 275 increasing binding, and modifications of ABP5 at AA43, 207-214, 224-230, and 269-275 increasing toxicity. Given that there have not been an adequate number of species reduced to practice to be representative of the broad genera of claimed compositions, and there is no description of structures that are correlated with the required function, there is not an adequate written description to support the breadth of the claims.
Response To Applicant’s Arguments
Applicant argues that the amendments to claim 1 have rendered the 35 U.S.C. 112(a) Written Description rejection moot (Remarks dated 08/12/2025).
Applicant's arguments filed 08/12/2025 have been fully considered but they are not persuasive.
Applicant did not directly address the Written Description rejection of the extremely large genus of compositions comprising all possible insecticidal proteins and all possible modifications to said insecticidal proteins.
The instant Specification describes the insecticidal protein ARP147 as an ETX/Mtx2 pesticidal protein. The predicted structure of ARP147 was modeled by I-TAS SER. Sites for introduction of peptides NvBP1 or ABP5 by addition to—or replacement of—existing sequence were selected on the basis of homology modeling, in silico protein stability and peptide exposure on the surface of the protein (page 8, paragraph 0026).
Example 4 of the instant specification describes the modification of insecticidal protein ARP147- MBP. As there was little information on domains of ETX/Mtx2 proteins that are important for toxicity, a wide range of sites including alpha helices, beta sheets and loop regions that are predicted to be on the exterior of ARP147 were selected for modification. The sites and the mode of peptide addition (addition to—or substitution of—existing sequence), were selected on the basis of modeling with 1) the peptide predicted to be displayed on the surface of ARP147 rather than folded in, and 2) the stability of the predicted modified structure (page 10, paragraph 0035).
The instant Specification further describes that the extent of increased binding and toxic action varied at a given site according to peptide in some cases. At site AA43 for example, the only site for which peptide sequences were added to ARP147 sequence, significant toxicity enhancement was seen with ABP5 but not with NvBP1. For site 70-76, significantly increased mortality was seen for NvBP1 but not ABP5. In these cases, the impact of the peptide sequence on ARP147 structure, or the orientation of ARP147 on binding may drive these different outcomes (page 12, paragraph 41).
The instant Specification describes that the beta pore forming toxins (ARP147, an ETX/Mtx22 protein) have a highly variable head region that is hypothesized to interact with receptors in the host gut, and a highly conserved tail region proposed to function in pore formation and membrane integration. An essential role has been proposed for the beta barrels in ETX/Mtx22 proteins in the formation of pores in their target insects. The six sites employed for modification of ARP147 were scattered throughout the head domain. It is notable that placement of gut binding peptides at AA207-214 in the beta barrel domain did not interfere with toxicity (page 13, paragraph 43).
According to the above cited passages from the instant Specification, the proper placement of the stink bug gut binding protein in the insecticidal protein is vital to the function of the modified insecticidal protein. Applicants have reduced to practice one insecticidal protein, ARP147, an ETX/Mtx2 pesticidal protein, which showed variable binding ability to the gut of N. viridula nymphs based on the placement of the stink bug gut binding protein (SEQ ID NOs: 1 or 7). There is not support or guidance in the instant Specification for the placement of the stink bug gut binding protein (SEQ ID NO: 1 or 7) in any other insecticidal protein besides ARP147, which retains the function of the instantly claimed modified protein.
Failure to Further Limit
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.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], 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 2 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.
Claim 2, which depends from claim 1, recites “wherein the stink bug gut binding peptide is a Nezara gut binding peptide”. Claim 1 recites two stink bug gut binding peptides: SEQ ID NO: 1 – a Nezara viridula BP1 peptide, and SEQ ID NO: 7 – a Nezara viridula ABP5 peptide. Thus, the two stink bug gut binding peptides (SEQ ID NO: 1 and SEQ ID NO: 7) required by claim 1 are both Nezara viridula stink bug gut binding peptides; therefore, the requirement of claim 2 that the stink bug gut binding peptide is a Nezara gut binding peptide fails to further limit the subject matter of claim 1.
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.
Summary
No claim is allowed.
However, claims 1 and 2 are deemed free of the prior art to the extent that the claims read on sequence SEQ ID NO: 1 or 7. A thorough search of the prior art did not disclose an amino acid sequence at least 95% identical to the full-length amino acid sequence as set forth in SEQ ID NO: 1 or 7.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTINA MEADOWS whose telephone number is (703)756-1430. The examiner can normally be reached Monday - Friday 9:00 am - 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amjad Abraham can be reached on 571-270-7058. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTINA L MEADOWS/Examiner, Art Unit 1663
CHRISTINA MEADOWS
Examiner
Art Unit 1663
/Amjad Abraham/SPE, Art Unit 1663