CTNF 18/258,636 CTNF 88598 DETAILED ACTION 07-03-aia AIA 15-10-aia 1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA. 07-06 AIA 15-10-15 2. 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 cited rejections 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. 3. Response to Election/Restriction filed on 4/13/2026 is acknowledged. 4. Claim filed on 6/21/2023 is acknowledged. 5. Claims 1-11 are pending in this application. 6. Claims 6-11 are withdrawn from consideration pursuant to 37 CFR 1.142(b), as being drawn to non-elected inventions, there being no allowable generic or linking claim. 7. Claims 1-5 are under examination. Elections/Restrictions 8. Applicant’s election of Group 1 (claims 1-5) and election of an insecticidal composition comprising (a) a cyclic peptide comprising an amino acid sequence of SEQ ID NO: 1 and (b) a peptide comprising SEQ ID NO: 3 as species of insecticidal composition in the reply filed on 4/13/2026 is acknowledged. Because the elected species of insecticidal composition is a subgenus, not a species; the Examiner telephoned Applicant’s representative, Rong Yang, for further species election. Applicant’s representative stated on the phone that an insecticidal composition comprising (a) a cyclic peptide consisting of SEQ ID NO: 1 and (b) a peptide consisting of SEQ ID NO: 3 as the elected species of insecticidal composition on 4/21/2026. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). The requirement is made FINAL in this office action. Group 1 is drawn to an insecticidal composition comprising: a. at least one cyclic peptide comprising an amino acid sequence of any of SEQ ID NOs: 1, 2 or 6, or an amino acid sequence that is at least 90%, 91%, 92%, 93%, 94%, 95%, 96%, 97%, 98% or 99% identical to any of SEQ ID NOs: 1, 2 or 6; and b. at least one second peptide comprising an amino acid sequence of any of SEQ ID NOs: 3 to 5, or an amino acid sequence that is at least 90%, 91%, 92%, 93%, 94%, 95%, 96%, 97%, 98% or 99% identical to any of SEQ ID NOs: 3 to 5, or a variant of a peptide comprising an amino acid sequence of SEQ ID NO: 3, wherein the amino acid sequence has an amino acid variant on position N29, and which retains the biological activity of the peptide. A search was conducted on the elected species; and prior art was found. Claims 1-5 are examined on the merits in this office action. 07-30-03-h AIA Claim Interpretations 9. With regards to the limitation recited in instant claim 3, since claim 3 depends on claim 1 and includes all the limitations of instant claim 1, claim 3 is interpretated as further limiting the variant recited in instant claim 1. Therefore, the scope of claim 3 is: The insecticidal composition of claim 1, wherein the insecticidal composition comprises: a. at least one cyclic peptide comprising an amino acid sequence of any of SEQ ID NOs: 1, 2 or 6, or an amino acid sequence that is at least 90%, 91%, 92%, 93%, 94%, 95%, 96%, 97%, 98% or 99% identical to any of SEQ ID NOs: 1, 2 or 6; and b. at least one second peptide comprising an amino acid sequence of any of SEQ ID NOs: 3 to 5, or an amino acid sequence that is at least 90%, 91%, 92%, 93%, 94%, 95%, 96%, 97%, 98% or 99% identical to any of SEQ ID NOs: 3 to 5, or a variant of a peptide comprising an amino acid sequence of SEQ ID NO: 3, wherein the amino acid sequence has an amino acid variant on position N29, wherein the amino acid variant on position N29 is A, L, P or T, and which retains the biological activity of the peptide. Such interpretation applies to all the rejections set forth below. Objections 10. The specification is objected to for the following minor informality: The specification recites SEQ ID NO: 33 on page 3, line 6 and many others throughout the specification. However, there are only 7 sequences in the filed sequence listing. Applicant is required to correct this error. 11. The specification is objected to for the following minor informality: The specification recites various hyperlinks and/or other forms of browser-executable code throughout the specification, as an example, http://www.swisssidechain.ch on page 36, line 27 of instant specification. The embedded hyperlinks and/or other forms of browser-executable code are impermissible and require deletion. It is suggested that Applicant places a URL between these symbols “< >” to inactivate the hyperlinks. Applicant is required to correct these errors. 06-31 AIA Please note: the specification has not been checked to the extent necessary to determine the presence of all possible error. Applicant's cooperation is required in correcting any errors of which applicant may become aware in the specification (see MPEP § 608.01) . 12. Claim 1 is objected to for the following minor informality: Applicant is suggested to amend claim 1 as "An insecticidal composition comprising: (a) a cyclic peptide comprising the amino acid sequence that is at least 90% identical to the amino acid sequence of any one of SEQ ID NOs: 1, 2 and 6; and (b) a second peptide comprising the amino acid sequence that is at least 90% identical to the amino acid sequence of any one of SEQ ID NOs: 3 to 5, or a second peptide comprising a variant of SEQ ID NO: 3 with N29 being substituted ". With regards to the term “ an amino acid sequence”, the Examiner would like to point out that the term “an amino acid sequence” broadly includes any fragment and full length of the recited amino acid sequence. As an example, a peptide comprising an amino acid sequence that is 90% identical to SEQ ID NO: 3 includes any peptide comprising any fragment or full length of the amino acid sequence that is 90% identical to SEQ ID NO: 3. And in the instant case, based on the disclosure of instant specification, the intended scope of the recited peptide appears to be one comprising the full length of the recited amino acid sequence. Therefore, Applicant is required to amend the recited “ an amino acid sequence” to “ the amino acid sequence”. 13. Claim 2 is objected to for the following minor informality: Applicant is suggested to amend claim 2 as “…wherein the cyclic peptide comprises the amino acid sequence of any one of SEQ ID NOs: 1, 2 and 6 ; and the second peptide comprises the amino acid sequence of any one of SEQ ID NOs: 3 to 5 , or the second peptide comprises a variant of SEQ ID NO: 3 with N29 being substituted” . 14. Claim 3 is objected to for the following minor informality: Applicant is suggested to amend claim 3 as “… wherein N29 in SEQ ID NO: 3 is substituted with A, L, P or T”. 15. Claim 4 is objected to for the following minor informality: Applicant is suggested to amend claim 4 as “…wherein the cyclic peptide comprises the amino acid sequence of any one of SEQ ID NOs: 1, 2 and 6 ; and the second peptide comprises the amino acid sequence of any one of SEQ ID NOs: 3 to 5 ”. 16. Claim 5 is objected to for the following minor informality: Applicant is suggested to amend claim 5 as “…wherein each of the cyclic peptide and the second peptide has insecticidal activity when ingested by an insect”. Rejections Claim Rejections - 35 U.S.C. § 101 07-04-01 AIA 07-04 17. 35 U.S.C. 101 reads as follows: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. 18. Claims 1-5 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Claims 1-5 are directed to an insecticidal composition comprising multiple natural products. As evidenced by instant specification, the cyclic peptide of instant SEQ ID NOs: 1 and 2 and the peptides of instant SEQ ID NOs: 3 and 4 are all naturally occurring peptides (see page 2, line 41 to page 3, line 2 of instant specification). And these peptides have insecticidal activity. The instant claims 1-5 do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claimed insecticidal composition in instant claims 1-5 does not recite features or steps demonstrating a marked difference from what exists in nature; and the claimed insecticidal composition in instant claims 1-5 does not recite meaningful limitations that add something of significance to the judicial exception. Therefore, the claimed insecticidal composition in instant claims 1-5 is not significantly different than a judicial exception (natural product). Claim Rejections - 35 U.S.C. § 112 paragraph (b) 07-30-02 AIA 19. 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. 07-34-01 AIA 20. Claim s 1-3 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 pre-AIA the applicant regards as the invention. 21. Claims 1 and 2 recite the limitation “a variant of a peptide comprising an amino acid sequence of SEQ ID NO: 3, wherein the amino acid sequence has an amino acid variant on position N29, and which retains the biological activity of the peptide”. First, it is unclear what is encompassed within the recited “the biological activity of the peptide”, in that whether it is limited or referred to the insecticidal activity of SEQ ID NO: 3 or not. Second, it is unclear what is the cutoff between “retains the biological activity of the peptide” and not “retains the biological activity of the peptide”. Therefore, the metes and bounds of claims 1 and 2 are rendered vague and indefinite. Because claim 3 depends from indefinite claim 1 and it does not clarify the point of confusion, it must also be rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA), second paragraph. Claim Rejections - 35 U.S.C. § 103 07-20-aia AIA 22. 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 of this title, 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. 07-23-aia AIA 23. The factual inquiries set forth in Graham v. John Deere Co. , 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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. 07-21-aia AIA 24. Claim s 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Herzig et al (Toxins, 2015, 7, pages 4366-4380, filed with IDS) in view of Cranfield et al (Langmuir, 2017, 33, pages 6630-6637) . The instant claims 1-5 are drawn to an insecticidal composition comprising: a. at least one cyclic peptide comprising an amino acid sequence of any of SEQ ID NOs: 1, 2 or 6, or an amino acid sequence that is at least 90%, 91%, 92%, 93%, 94%, 95%, 96%, 97%, 98% or 99% identical to any of SEQ ID NOs: 1, 2 or 6; and b. at least one second peptide comprising an amino acid sequence of any of SEQ ID NOs: 3 to 5, or an amino acid sequence that is at least 90%, 91%, 92%, 93%, 94%, 95%, 96%, 97%, 98% or 99% identical to any of SEQ ID NOs: 3 to 5, or a variant of a peptide comprising an amino acid sequence of SEQ ID NO: 3, wherein the amino acid sequence has an amino acid variant on position N29, and which retains the biological activity of the peptide. Herzig et al, throughout the literature, teach ω-hexatoxin-Hv1a (Hv1a) is an insecticidal toxin from the deadly Australian funnel-web spider, wherein the Hv1a consists of the amino acid sequence SPTCIPSGQPCPYNENCCSQSCTFKENENG NTVKRCD (identical to the peptide of instant SEQ ID NO: 3), and wherein it inhibits CaV channels in the insect central nervous system, for example, Abstract; page 4367, Figure 1; and page 4368, the 2 nd paragraph. It meets the limitations of the second peptide recited in instant claims 1-5. The difference between the reference and instant claims 1-5 is that the reference does not explicilty teach an insecticidal composition comprising (a) a cyclic peptide consisting of SEQ ID NO: 1 and (b) a peptide consisting of SEQ ID NO: 3 as the elected species of insecticidal composition; and the limitations of the cyclic peptide recited in instant claims 1-5. However, Cranfield et al, throughout the literature, teach kalata B1 (kB1) and kalata B2 (kB2) are cyclic disulfide-rich peptides that are chemically and thermally stable and possess insecticidal properties; wherein kB1 consists of the amino acid sequence GLPVCGETCVGGTCNTPGCTCSWPVCTRN (identical to the cyclic peptide of instant SEQ ID NO: 1), and kB2 consists of the amino acid sequence GLPVCGETC FGGTCNTPGCSCTWPICTRD (identical to the cyclic peptide of instant SEQ ID NO: 2); and wherein kB1 and kB2 exert their effect through altering membrane packing constraints and inducing purely lipidic conductive pores, for example, Abstract; and page 6631, Figure 1B. Therefore, it would have been obvious to one of ordinary skilled in the art to combine the teachings of Herzig et al and Cranfield et al to develop an insecticidal composition comprising: a cyclic peptide selected from kB1 (identical to the peptide of instant SEQ ID NO: 1) or kB2 (identical to the peptide of instant SEQ ID NO: 2), and Hv1a (identical to the peptide of instant SEQ ID NO: 3). It reads on an insecticidal composition comprising (a) a cyclic peptide consisting of SEQ ID NO: 1 and for (b) a peptide consisting of SEQ ID NO: 3 as the elected species of insecticidal composition. One of ordinary skilled in the art would have been motivated to combine the teachings of Herzig et al and Cranfield et al to develop an insecticidal composition comprising: a cyclic peptide selected from kB1 (identical to the peptide of instant SEQ ID NO: 1) or kB2 (identical to the peptide of instant SEQ ID NO: 2), and Hv1a (identical to the peptide of instant SEQ ID NO: 3), because Cranfield et al, throughout the literature, teach kalata B1 (kB1) and kalata B2 (kB2) are cyclic disulfide-rich peptides that are chemically and thermally stable and possess insecticidal properties; wherein kB1 (identical to the cyclic peptide of instant SEQ ID NO: 1) and kB2 (identical to the cyclic peptide of instant SEQ ID NO: 2) exert their effect through altering membrane packing constraints and inducing purely lipidic conductive pores. Furthermore, the MPEP states: “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose....” (see MPEP § 2144.06 I). A person of ordinary skilled in the art would have reasonable expectation of success in combining the teachings of Herzig et al and Cranfield et al to develop an insecticidal composition comprising: a cyclic peptide selected from kB1 (identical to the peptide of instant SEQ ID NO: 1) or kB2 (identical to the peptide of instant SEQ ID NO: 2), and Hv1a (identical to the peptide of instant SEQ ID NO: 3). Obviousness Double Patenting 08-33 AIA 25. The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the claims at issue are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg , 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman , 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi , 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum , 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel , 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington , 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. 26. Claims 1-3 and 5 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-16 of co-pending Application No. 18/258720 in view of Cranfield et al (Langmuir, 2017, 33, pages 6630-6637). 27. Instant claims 1-3 and 5 are drawn to an insecticidal composition comprising: a. at least one cyclic peptide comprising an amino acid sequence of any of SEQ ID NOs: 1, 2 or 6, or an amino acid sequence that is at least 90%, 91%, 92%, 93%, 94%, 95%, 96%, 97%, 98% or 99% identical to any of SEQ ID NOs: 1, 2 or 6; and b. at least one second peptide comprising an amino acid sequence of any of SEQ ID NOs: 3 to 5, or an amino acid sequence that is at least 90%, 91%, 92%, 93%, 94%, 95%, 96%, 97%, 98% or 99% identical to any of SEQ ID NOs: 3 to 5, or a variant of a peptide comprising an amino acid sequence of SEQ ID NO: 3, wherein the amino acid sequence has an amino acid variant on position N29, and which retains the biological activity of the peptide. 28. Claims 1-16 of co-pending Application No. 18/258720 are drawn to a hexatoxin peptide variant comprising a. an amino acid sequence which is at least 90% identical to any one of SEQ ID NOs:27 to 29, wherein the amino acid sequence has at least one amino acid variant on position N27; b. an amino acid sequence which is at least 90% identical to any one of SEQ ID NOs: 2, 6, 7, 30 or 32, wherein the amino acid sequence has at least one amino acid variant on position N28; c. an amino acid sequence which is at least 90% identical to any one of SEQ ID NOs: 1, 3, 4, 5, 8 to 24 or 31, wherein the amino acid sequence has at least one amino acid variant on position N29; d. an amino acid sequence which is at least 90% identical to SEQ ID NO: 25, wherein the amino acid sequence has at least one amino acid variant on position N30; e. an amino acid sequence which is at least 90% identical to SEQ ID NOs: 26, wherein the amino acid sequence has at least one amino acid variant on position N31; or f. an amino acid sequence which is at least 90% identical to SEQ ID NO: 34, wherein the amino acid sequence has at least one amino acid variant on position N32; each of which retain the biological activity of the hexatoxin; with the proviso that the peptide does not comprise the amino acid sequence of SEQ ID NO: 33; a composition comprising a pesticidally effective amount of such peptide; a plant, plant tissue or plant propagation material comprising such peptide or having such peptide applied thereto; and various methods of preparing or using such peptide. The peptide recited in claims 1-16 of co-pending Application No. 18/258720 meets all the structural limitations of the 2 nd peptide recited in instant claims 1-3. And as evidenced by the specification of co-pending Application No. 18/258720, such peptide has insecticidal activity (see for example, page 2, lines 29-32 of the specification). 29. The difference between claims 1-16 of co-pending Application No. 18/258720 and the insecticidal composition recited in instant claims 1-3 and 5 is that they do not teach the cyclic peptide recited in instant claims 1-3 and 5. However, in view of the teachings of Cranfield et al as set forth in Section 24 above, it would have been obvious to one of ordinary skilled in the art to apply the peptide recited in claims 1-16 of co-pending Application No. 18/258720 and develop the insecticidal composition recited in instant claims 1-3 and 5. And, the MPEP states: “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose....” (see MPEP § 2144.06 I). This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented. Conclusion No claim is allowed. Any inquiry concerning this communication or earlier communications from the examiner should be directed to LI N KOMATSU whose telephone number is (571)270-3534. The examiner can normally be reached Mon-Fri 8am-4pm EST. 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 on 5712707430. 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. /LI N KOMATSU/Primary Examiner, Art Unit 1658 Application/Control Number: 18/258,636 Page 2 Art Unit: 1658 Application/Control Number: 18/258,636 Page 3 Art Unit: 1658 Application/Control Number: 18/258,636 Page 4 Art Unit: 1658 Application/Control Number: 18/258,636 Page 5 Art Unit: 1658 Application/Control Number: 18/258,636 Page 6 Art Unit: 1658 Application/Control Number: 18/258,636 Page 7 Art Unit: 1658 Application/Control Number: 18/258,636 Page 8 Art Unit: 1658 Application/Control Number: 18/258,636 Page 9 Art Unit: 1658 Application/Control Number: 18/258,636 Page 10 Art Unit: 1658 Application/Control Number: 18/258,636 Page 11 Art Unit: 1658 Application/Control Number: 18/258,636 Page 12 Art Unit: 1658 Application/Control Number: 18/258,636 Page 13 Art Unit: 1658 Application/Control Number: 18/258,636 Page 14 Art Unit: 1658 Application/Control Number: 18/258,636 Page 15 Art Unit: 1658
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