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 .
Election/Restrictions
Applicant's amendments of claims 1 and 3 in the reply filed on 04/14/2026 is acknowledged. Claims 1, 3, 37-48, 51, 56-61, 63-70 and 72-86 are pending.
Claims 37-46, 75-86 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 10/20/2025.
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).
Thus claims 1, 3, 47-48, 51, 56-61, 63-70, 72-74 along with species of DNA sequence of SEQ ID NO:3 encoding SEQ ID NO:4 are examined in this office action.
For following analysis, the substitute specification-clean submitted on 06/24/2024 has used for referring to the page and paragraph numbers.
Rejections that are withdrawn
35 USC § 112 written description rejection is withdrawn in light of applicant’s amendment of claims 1 and 3 to recite the GA2 oxidase protein comprise amino acid sequence that is at least 95% identical to SEQ ID NO:4 encoded by nucleic acid sequence with at least 95% identical to SEQ ID NO:3, cancellation of claims 49-50, 52-55. Regarding claim 55, applicant’s arguments 04/14/2026 states that the off-types were explained in paragraph 0204 (Response to rejection, page 13, paragraph 2) was found persuasive therefore the written description rejection over claim 56 is withdrawn.
Claim Interpretation
In claim 1, the claim recite the phrase “vascular promoter” as described by applicant, wherein applicant defines in Spec, page 38 paragraph 0193 “As used herein, a "vascular promoter" refers to a plant-expressible promoter that drives, causes or initiates expression of a transcribable DNA sequence or transgene operably linked to such promoter in one or more vascular tissue(s) of the plant, even if the promoter is also expressed in other non-vascular plant cell(s) or tissue(s). A vascular promoter includes both vascular-specific promoters and vascular-preferred promoters.” Therefore, vascular promoter would be any promoter that causes or initiates expression of a transcribable DNA sequence or transgene operably linked to such promoter in one or more vascular tissue(s) of the plant for example roots, internodes etc. since it is not strictly limiting to the phloem, vascular parenchymal, and/or bundle sheath cell(s).
Following analysis has been modified since applicant has added the limitation of “wherein the plant-expressible promoter is a vascular promoter” which was previously recited in the withdrawn claim 36 and which claim has been cancelled in the instant amendments of 04/14/2026. Therefore, new art rejection and analysis has been added which is necessitated by new claim limitation stating “wherein the plant- expressible promoter is a vascular promoter”.
Claim Rejections - 35 USC § 102
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.
Anticipated by Maize inbred B73
Claims 1, 3, and 47-48 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Troyer et al. (Published: 1999, Journal: Crop Sci. 39:601-626) as evidenced by maizeGDB database (https://maizegdb.org).
Claims are drawn to a recombinant DNA construct comprising a GA2 oxidase protein or polynucleotide of SEQ ID NO:3 encoding polypeptide of SEQ ID NO: 4 and a plant cell, a plant comprising the recombinant construct.
Applicant defines “The term "recombinant" in reference to a polynucleotide (DNA or RNA) molecule, protein, construct, vector, etc., refers to a polynucleotide or protein molecule or sequence that is man-made and not normally found in nature.” Applicant defines “As used in this definition, the phrase "not normally found in nature" means not found in nature without human introduction.” (page 33, paragraph 184).
The claim is interpreted as “product by process claim” wherein [E]ven though product by process claims are limited by and defined by the process, determination of patentability is based on the product itself. 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."
Regarding claims 1-3, Troyer et al. discloses inbred line B73 was developed by cycle 5 of general combining ability recurrent selection of stiff stalk synthetic (BSSS-C5) wherein ten S1 line were selected by Dr. Lowell H. penny in cycle 5 where the B37 was developed from one of the 10S2 lines (page615, left second paragraph).
Furthermore, alignment of SEQ ID NO:4 encoded by 3 has 100% identity to the locus 0PKF3 (i.e. Zm00001d002999) of inbred line B73 (see alignment below). Therefore, the DNA sequence anticipate the claim since the B73 has been gone through human selection and the locus 0PKF3 would have been operably linked to maize expressible promoter since it produces protein.
Furthermore, maizeGDB database (accessed https://maizegdb.org/gene_center/gene/Zm00001d002999, accessed 07/13/2026) showed the evidence that the gene is naturally expressed in vascular tissue such as in internodes and roots etc. Therefore, the own promoter of the gene Zm00001d002999 or 0PKF3 locus is vascular promoter that transcribes the gene in vascular tissue, see claim interpretation above regarding vascular promoter.
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797
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Regarding claim 47, the DNA molecule comprise the locus 0PKF3 which is the GA2 oxidase.
Regarding claim 48, the claim recites a plant comprising the DNA sequence encoding protein of locus 0PKF3 and the specific characteristic of protein for example shorter plant height compared to any plant.
Therefore, locus 0PKF3 of B73 anticipates the claim.
RESULT 1
C0PKF3_MAIZE
ID C0PKF3_MAIZE Unreviewed; 362 AA.
AC C0PKF3;
DT 05-MAY-2009, integrated into UniProtKB/TrEMBL.
DT 05-MAY-2009, sequence version 1.
DT 18-JUN-2025, entry version 92.
DE RecName: Full=gibberellin 2beta-dioxygenase {ECO:0000256|ARBA:ARBA00066708};
DE EC=1.14.11.13 {ECO:0000256|ARBA:ARBA00066708};
GN ORFNames=ZEAMMB73_Zm00001d002999 {ECO:0000313|EMBL:ONM15862.1};
OS Zea mays (Maize).
OC Eukaryota; Viridiplantae; Streptophyta; Embryophyta; Tracheophyta;
OC Spermatophyta; Magnoliopsida; Liliopsida; Poales; Poaceae; PACMAD clade;
OC Panicoideae; Andropogonodae; Andropogoneae; Tripsacinae; Zea.
OX NCBI_TaxID=4577 {ECO:0000313|EMBL:ACN35669.1};
RN [1] {ECO:0000313|EMBL:ACN35669.1}
RP NUCLEOTIDE SEQUENCE.
RC STRAIN=B73 {ECO:0000313|EMBL:ACN35669.1};
RX PubMed=19936069; DOI=10.1371/journal.pgen.1000740;
RA Soderlund C., Descour A., Kudrna D., Bomhoff M., Boyd L., Currie J.,
RA Angelova A., Collura K., Wissotski M., Ashley E., Morrow D., Fernandes J.,
RA Walbot V., Yu Y.;
RT "Sequencing, mapping, and analysis of 27,455 maize full-length cDNAs.";
RL PLoS Genet. 5:E1000740-E1000740(2009).
RN [2] {ECO:0000313|EMBL:ONM15862.1, ECO:0000313|Proteomes:UP000007305}
RP NUCLEOTIDE SEQUENCE [LARGE SCALE GENOMIC DNA].
RC STRAIN=cv. B73 {ECO:0000313|Proteomes:UP000007305};
RC TISSUE=Seedling {ECO:0000313|EMBL:ONM15862.1};
RG Maize Genome Sequencing Project;
RA Ware D.;
RT "Update maize B73 reference genome by single molecule sequencing
RT technologies.";
RL Submitted (DEC-2015) to the EMBL/GenBank/DDBJ databases.
RN [3] {ECO:0000313|EnsemblPlants:Zm00001eb077080_P001}
RP NUCLEOTIDE SEQUENCE [LARGE SCALE GENOMIC DNA].
RC STRAIN=cv. B73 {ECO:0000313|EnsemblPlants:Zm00001eb077080_P001};
RA Seetharam A., Woodhouse M., Cannon E.;
RL Submitted (JUL-2019) to the EMBL/GenBank/DDBJ databases.
RN [4] {ECO:0000313|EnsemblPlants:Zm00001eb077080_P001}
RP IDENTIFICATION.
RC STRAIN=cv. B73 {ECO:0000313|EnsemblPlants:Zm00001eb077080_P001};
RG EnsemblPlants;
RL Submitted (MAY-2021) to UniProtKB.
CC -!- CATALYTIC ACTIVITY:
CC Reaction=gibberellin A1 + 2-oxoglutarate + O2 = gibberellin A8 +
CC succinate + CO2; Xref=Rhea:RHEA:15005, ChEBI:CHEBI:15379,
CC ChEBI:CHEBI:16526, ChEBI:CHEBI:16810, ChEBI:CHEBI:30031,
CC ChEBI:CHEBI:58524, ChEBI:CHEBI:58594; EC=1.14.11.13;
CC Evidence={ECO:0000256|ARBA:ARBA00052204};
CC -!- COFACTOR:
CC Name=L-ascorbate; Xref=ChEBI:CHEBI:38290;
CC Evidence={ECO:0000256|ARBA:ARBA00001961};
CC -!- SIMILARITY: Belongs to the iron/ascorbate-dependent oxidoreductase
CC family. GA2OX subfamily. {ECO:0000256|ARBA:ARBA00061282}.
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DR EMBL; BT068772; ACN35669.1; -; mRNA.
DR EMBL; CM007648; ONM15862.1; -; Genomic_DNA.
DR RefSeq; NP_001148252.1; NM_001154780.1.
DR SMR; C0PKF3; -.
DR FunCoup; C0PKF3; 9.
DR STRING; 4577.C0PKF3; -.
DR PaxDb; 4577-GRMZM2G006964_P01; -.
DR EnsemblPlants; Zm00001eb077080_T001; Zm00001eb077080_P001; Zm00001eb077080.
DR Gramene; Zm00001eb077080_T001; Zm00001eb077080_P001; Zm00001eb077080.
DR KEGG; zma:100281860; -.
DR eggNOG; KOG0143; Eukaryota.
DR HOGENOM; CLU_010119_15_1_1; -.
DR OMA; CDFGELN; -.
DR OrthoDB; 288590at2759; -.
DR Proteomes; UP000007305; Chromosome 2.
DR ExpressionAtlas; C0PKF3; baseline and differential.
DR GO; GO:0005737; C:cytoplasm; IEA:EnsemblPlants.
DR GO; GO:0005634; C:nucleus; IEA:EnsemblPlants.
DR GO; GO:0045543; F:gibberellin 2-beta-dioxygenase activity; IBA:GO_Central.
DR GO; GO:0046872; F:metal ion binding; IEA:UniProtKB-KW.
DR GO; GO:0010336; P:gibberellic acid homeostasis; IEA:EnsemblPlants.
DR GO; GO:0045487; P:gibberellin catabolic process; IBA:GO_Central.
DR FunFam; 2.60.120.330:FF:000021; Gibberellin 2-beta-dioxygenase 8; 1.
DR Gene3D; 2.60.120.330; B-lactam Antibiotic, Isopenicillin N Synthase, Chain; 1.
DR InterPro; IPR026992; DIOX_N.
DR InterPro; IPR044861; IPNS-like_FE2OG_OXY.
DR InterPro; IPR027443; IPNS-like_sf.
DR InterPro; IPR050231; Iron_ascorbate_oxido_reductase.
DR InterPro; IPR005123; Oxoglu/Fe-dep_dioxygenase_dom.
DR PANTHER; PTHR47990; 2-OXOGLUTARATE (2OG) AND FE(II)-DEPENDENT OXYGENASE SUPERFAMILY PROTEIN-RELATED; 1.
DR Pfam; PF03171; 2OG-FeII_Oxy; 1.
DR Pfam; PF14226; DIOX_N; 1.
DR SUPFAM; SSF51197; Clavaminate synthase-like; 1.
DR PROSITE; PS51471; FE2OG_OXY; 1.
PE 2: Evidence at transcript level;
KW Dioxygenase {ECO:0000256|ARBA:ARBA00022964};
KW Iron {ECO:0000256|ARBA:ARBA00023004, ECO:0000256|RuleBase:RU003682};
KW Metal-binding {ECO:0000256|ARBA:ARBA00022723,
KW ECO:0000256|RuleBase:RU003682};
KW Oxidoreductase {ECO:0000256|ARBA:ARBA00023002,
KW ECO:0000256|RuleBase:RU003682};
KW Reference proteome {ECO:0000313|Proteomes:UP000007305}.
FT DOMAIN 208..307
FT /note="Fe2OG dioxygenase"
FT /evidence="ECO:0000259|PROSITE:PS51471"
SQ SEQUENCE 362 AA; 38914 MW; 47E2FC39A49CA1F8 CRC64;
Query Match 100.0%; Score 1888; Length 362;
Best Local Similarity 100.0%;
Matches 362; Conservative 0; Mismatches 0; Indels 0; Gaps 0;
Qy 1 MRYVAATPTMPSLVAESAAEPPLVDSYLELLRRGGGGGGIAAATEGCVQERELPLIDLTC 60
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 1 MRYVAATPTMPSLVAESAAEPPLVDSYLELLRRGGGGGGIAAATEGCVQERELPLIDLTC 60
Qy 61 LQGSAGEAARTTCADAMARAASEWGFFQVTGHGVSRALLERLRAEQARLFRLPFETKAKA 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 61 LQGSAGEAARTTCADAMARAASEWGFFQVTGHGVSRALLERLRAEQARLFRLPFETKAKA 120
Qy 121 GLLNGSYRWGAPTATSLRHLSWSEAFHVPLASISGTACDFGELSSLRDVVQEVADAMSRV 180
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 121 GLLNGSYRWGAPTATSLRHLSWSEAFHVPLASISGTACDFGELSSLRDVVQEVADAMSRV 180
Qy 181 AKTVAVALAGSLLGHDEAAAFPAGCGETTCYLRLNRYPACPFAANTFGLVPHTDSDFLTV 240
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 181 AKTVAVALAGSLLGHDEAAAFPAGCGETTCYLRLNRYPACPFAANTFGLVPHTDSDFLTV 240
Qy 241 LSQDQVGGLQLMTDAGWVAVKPRPDALIVNIGDLFQAWSNNLYKSVEHKVVANAAAERFS 300
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 241 LSQDQVGGLQLMTDAGWVAVKPRPDALIVNIGDLFQAWSNNLYKSVEHKVVANAAAERFS 300
Qy 301 AAYFLCPSYDSLVGTCGEPSPYRDFTFGEYRRKVQEDVKRTGRKIGLPNFLKHRPPPQSR 360
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 301 AAYFLCPSYDSLVGTCGEPSPYRDFTFGEYRRKVQEDVKRTGRKIGLPNFLKHRPPPQSR 360
Qy 361 PA 362
||
Db 361 PA 362
Anticipated by Yi-dan et al.
Claims 1, 3, 47 and 57 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Yi-dan et al. (Foreign Document ID: CN 111778265 A, Date Published: 10/16/2020) For following analysis both the English translation and original document has been added wherein the page numbers refers to the English translation version and figure number refers to the original document) and as evidenced by Mousavi et al. (Published: 2014, Journal: Emir. J. Food Agric. 2014. 26 (6): 1-11 doi: 10.9755/ejfa.v26i5.15722), and as evidenced by Hraska et al. (Published: 2008, Journal: Plant Cell Tiss Organ Cult 94:239–251).
Claims are drawn a recombinant DNA construct comprising a GA2 oxidase protein or polynucleotide of SEQ ID NO:3 encoding polypeptide of SEQ ID NO: 4 and a plant cell, a plant comprising the recombinant construct.
Regarding claims 1 and 3, Yi-dan et al. discloses the overexpression of ZmGA2ox6 gene reduce plant height (page 1, abstract). Yi-dan et al. discloses the expression of ZmGA2ox6 gene in A. thaliana wherein the expressed plant has decreased plant height (page 4, figures 3-4, see figure below from foreign copy). ZmGA2ox6 gene has 100% identity to applicant’s SEQ ID NO:4 as protein and SEQ ID NO:3 as gene (see alignment below).
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767
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Greyscale
Regarding claim 47, Yi-dan et al. discloses recombinant plant expression vector pCAMBIA-3301 comprising ZmGA2ox6 gene (page 8, Embodiment 3, first paragraph). The vector would comprise CAMV 35S promoter which is plant expressible. For example Mousavi et al. showed the evidence the vector comprise the plant expressible CAMV 35S promoter (page 499, Figure 1).
Furthermore, Hraska et al. showed the evidence that the activity of CaMV 35S promoter in transgenic tobacco plants showed GFP fluorescence intensity in vascular tissues in both T1 and T1 plants indicating the high promoter activity showing the CaMV-35S promoter has predominant activity in vascular tissues (page 239, Abstract). Therefore CaMV-35S promoter would be a vascular promoter as defined by applicant.
Regarding claim 57, Yi-dan et al. discloses their recombinant vector is in E. coli (page 4, first paragraph) which is a bacterial cell.
Alignment of SEQ ID NO:4 to the A_Geneseq database:
RESULT 1
BIL93538
(NOTE: this sequence has 6 duplicates in the database searched)
ID BIL93538 standard; protein; 362 AA.
XX
AC BIL93538;
XX
DT 10-DEC-2020 (first entry)
XX
DE Maize gibberellin oxidase (ZmGA2ox6) protein, SEQ ID 4.
XX
KW GA2ox6 protein; crop improvement; drought resistance; gene expression;
KW genetic engineering; gibberellin oxidase; plant.
XX
OS Zea mays.
XX
CC PN CN111778265-A.
XX
CC PD 16-OCT-2020.
XX
CC PF 14-JUL-2020; 2020CN-10675989.
XX
PR 14-JUL-2020; 2020CN-10675989.
XX
CC PA (JLAA ) JILIN ACAD AGRIC SCI.
XX
CC PI Li Y, Guo J, Liu X, Liu Y, Chu W, Cui X, Li H, Xiao B;
XX
DR WPI; 2020-A3032J/090.
DR N-PSDB; BIL93535.
XX
CC PT New mutant gene of corn gibberellin oxidase useful for improving plant
CC PT type of plants and drought tolerance of plants.
XX
CC PS Claim 4; SEQ ID NO 4; 32pp; Chinese.
XX
CC The invention relates to a novel corn gibberellin oxidase mutant gene,
CC useful for improving plant type of plants and drought tolerance of
CC plants. The invention further claims: 1) a mutant of corn gibberellin
CC oxidase encoded by the mutant gene; and 2) an expression vector
CC comprising the mutant gene. The mutant gene of corn gibberellin oxidase
CC is useful for improving plant type of plants and drought tolerance of
CC plants, constructing plant expression vectors and transform them into
CC Arabidopsis and other crops, observing the phenotype of transgenic
CC Arabidopsis thaliana before and after drought stress, reducing the plant
CC height of plants and improving the drought tolerance of plants
CC Arabidopsis. Note: The present sequence is used as the parent sequence
CC for the creation of variants (see BIL93539-BIL93540) based on the
CC information given in the specification.
XX
SQ Sequence 362 AA;
Query Match 100.0%; Score 1888; Length 362;
Best Local Similarity 100.0%;
Matches 362; Conservative 0; Mismatches 0; Indels 0; Gaps 0;
Qy 1 MRYVAATPTMPSLVAESAAEPPLVDSYLELLRRGGGGGGIAAATEGCVQERELPLIDLTC 60
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 1 MRYVAATPTMPSLVAESAAEPPLVDSYLELLRRGGGGGGIAAATEGCVQERELPLIDLTC 60
Qy 61 LQGSAGEAARTTCADAMARAASEWGFFQVTGHGVSRALLERLRAEQARLFRLPFETKAKA 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 61 LQGSAGEAARTTCADAMARAASEWGFFQVTGHGVSRALLERLRAEQARLFRLPFETKAKA 120
Qy 121 GLLNGSYRWGAPTATSLRHLSWSEAFHVPLASISGTACDFGELSSLRDVVQEVADAMSRV 180
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 121 GLLNGSYRWGAPTATSLRHLSWSEAFHVPLASISGTACDFGELSSLRDVVQEVADAMSRV 180
Qy 181 AKTVAVALAGSLLGHDEAAAFPAGCGETTCYLRLNRYPACPFAANTFGLVPHTDSDFLTV 240
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 181 AKTVAVALAGSLLGHDEAAAFPAGCGETTCYLRLNRYPACPFAANTFGLVPHTDSDFLTV 240
Qy 241 LSQDQVGGLQLMTDAGWVAVKPRPDALIVNIGDLFQAWSNNLYKSVEHKVVANAAAERFS 300
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 241 LSQDQVGGLQLMTDAGWVAVKPRPDALIVNIGDLFQAWSNNLYKSVEHKVVANAAAERFS 300
Qy 301 AAYFLCPSYDSLVGTCGEPSPYRDFTFGEYRRKVQEDVKRTGRKIGLPNFLKHRPPPQSR 360
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 301 AAYFLCPSYDSLVGTCGEPSPYRDFTFGEYRRKVQEDVKRTGRKIGLPNFLKHRPPPQSR 360
Qy 361 PA 362
||
Db 361 PA 362
Alignment of SEQ ID NO:3 to the N_Geneseq database:
RESULT 1
BIL93535
(NOTE: this sequence has 3 duplicates in the database searched)
ID BIL93535 standard; DNA; 1089 BP.
XX
AC BIL93535;
XX
DT 10-DEC-2020 (first entry)
XX
DE Maize gibberellin oxidase (ZmGA2ox6) gene, SEQ ID 1.
XX
KW GA2ox6 gene; crop improvement; drought resistance; ds; gene;
KW gene expression; genetic engineering; gibberellin oxidase; plant.
XX
OS Zea mays.
XX
FH Key Location/Qualifiers
FT CDS 1..1089
FT /*tag= a
FT /product= "gibberellin oxidase protein"
XX
CC PN CN111778265-A.
XX
CC PD 16-OCT-2020.
XX
CC PF 14-JUL-2020; 2020CN-10675989.
XX
PR 14-JUL-2020; 2020CN-10675989.
XX
CC PA (JLAA ) JILIN ACAD AGRIC SCI.
XX
CC PI Li Y, Guo J, Liu X, Liu Y, Chu W, Cui X, Li H, Xiao B;
XX
DR WPI; 2020-A3032J/090.
DR P-PSDB; BIL93538.
XX
CC PT New mutant gene of corn gibberellin oxidase useful for improving plant
CC PT type of plants and drought tolerance of plants.
XX
CC PS Claim 2; SEQ ID NO 1; 32pp; Chinese.
XX
CC The invention relates to a novel corn gibberellin oxidase mutant gene,
CC useful for improving plant type of plants and drought tolerance of
CC plants. The invention further claims: 1) a mutant of corn gibberellin
CC oxidase encoded by the mutant gene; and 2) an expression vector
CC comprising the mutant gene. The mutant gene of corn gibberellin oxidase
CC is useful for improving plant type of plants and drought tolerance of
CC plants, constructing plant expression vectors and transform them into
CC Arabidopsis and other crops, observing the phenotype of transgenic
CC Arabidopsis thaliana before and after drought stress, reducing the plant
CC height of plants and improving the drought tolerance of plants
CC Arabidopsis.
XX
SQ Sequence 1089 BP; 165 A; 365 C; 394 G; 165 T; 0 U; 0 Other;
Query Match 100.0%; Score 1089; Length 1089;
Best Local Similarity 100.0%;
Matches 1089; Conservative 0; Mismatches 0; Indels 0; Gaps 0;
Qy 1 ATGCGTTACGTAGCTGCCACTCCGACCATGCCGTCCCTTGTCGCGGAGAGCGCCGCCGAA 60
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 1 ATGCGTTACGTAGCTGCCACTCCGACCATGCCGTCCCTTGTCGCGGAGAGCGCCGCCGAA 60
Qy 61 CCGCCTCTGGTGGACAGCTACCTGGAGCTGCTCCGGCGCGGCGGCGGCGGCGGCGGCATT 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 61 CCGCCTCTGGTGGACAGCTACCTGGAGCTGCTCCGGCGCGGCGGCGGCGGCGGCGGCATT 120
Qy 121 GCGGCGGCGACCGAGGGCTGCGTGCAGGAGCGCGAGCTGCCCTTGATCGACCTGACGTGC 180
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 121 GCGGCGGCGACCGAGGGCTGCGTGCAGGAGCGCGAGCTGCCCTTGATCGACCTGACGTGC 180
Qy 181 CTGCAGGGCAGCGCGGGCGAGGCGGCGAGGACGACGTGCGCGGACGCCATGGCGAGGGCG 240
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 181 CTGCAGGGCAGCGCGGGCGAGGCGGCGAGGACGACGTGCGCGGACGCCATGGCGAGGGCG 240
Qy 241 GCCTCGGAGTGGGGCTTTTTCCAGGTGACCGGGCACGGCGTGAGCCGGGCGCTGTTGGAG 300
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 241 GCCTCGGAGTGGGGCTTTTTCCAGGTGACCGGGCACGGCGTGAGCCGGGCGCTGTTGGAG 300
Qy 301 CGGCTGCGGGCGGAGCAGGCGCGGCTGTTCCGGCTGCCGTTCGAAACCAAGGCCAAGGCC 360
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 301 CGGCTGCGGGCGGAGCAGGCGCGGCTGTTCCGGCTGCCGTTCGAAACCAAGGCCAAGGCC 360
Qy 361 GGGCTTCTCAACGGCTCCTACCGCTGGGGCGCCCCCACGGCCACGTCGCTCCGCCACCTC 420
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 361 GGGCTTCTCAACGGCTCCTACCGCTGGGGCGCCCCCACGGCCACGTCGCTCCGCCACCTC 420
Qy 421 TCGTGGTCGGAGGCGTTCCACGTCCCGCTCGCCAGCATCTCCGGCACTGCCTGCGACTTC 480
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 421 TCGTGGTCGGAGGCGTTCCACGTCCCGCTCGCCAGCATCTCCGGCACTGCCTGCGACTTC 480
Qy 481 GGAGAGCTCAGCTCCTTGAGGGACGTGGTGCAGGAGGTGGCGGACGCGATGTCGCGGGTG 540
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 481 GGAGAGCTCAGCTCCTTGAGGGACGTGGTGCAGGAGGTGGCGGACGCGATGTCGCGGGTG 540
Qy 541 GCCAAGACCGTGGCGGTGGCGCTGGCGGGGAGCCTTCTGGGCCACGACGAGGCGGCGGCG 600
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 541 GCCAAGACCGTGGCGGTGGCGCTGGCGGGGAGCCTTCTGGGCCACGACGAGGCGGCGGCG 600
Qy 601 TTCCCGGCGGGGTGCGGCGAGACCACCTGCTACCTGCGGCTCAATCGGTACCCGGCGTGC 660
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 601 TTCCCGGCGGGGTGCGGCGAGACCACCTGCTACCTGCGGCTCAATCGGTACCCGGCGTGC 660
Qy 661 CCGTTCGCGGCGAACACCTTCGGGCTGGTGCCCCACACGGACAGCGACTTCCTGACGGTG 720
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 661 CCGTTCGCGGCGAACACCTTCGGGCTGGTGCCCCACACGGACAGCGACTTCCTGACGGTG 720
Qy 721 CTGTCCCAGGACCAGGTCGGGGGCCTGCAGCTCATGACGGACGCCGGCTGGGTGGCCGTC 780
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 721 CTGTCCCAGGACCAGGTCGGGGGCCTGCAGCTCATGACGGACGCCGGCTGGGTGGCCGTC 780
Qy 781 AAGCCCCGCCCCGACGCGCTCATCGTCAACATCGGCGATCTGTTTCAGGCCTGGAGCAAC 840
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 781 AAGCCCCGCCCCGACGCGCTCATCGTCAACATCGGCGATCTGTTTCAGGCCTGGAGCAAC 840
Qy 841 AACCTGTACAAGAGCGTGGAGCACAAGGTGGTGGCCAACGCCGCGGCGGAGCGCTTCTCG 900
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 841 AACCTGTACAAGAGCGTGGAGCACAAGGTGGTGGCCAACGCCGCGGCGGAGCGCTTCTCG 900
Qy 901 GCGGCCTACTTCCTGTGCCCGTCCTACGACTCGCTCGTCGGCACGTGCGGCGAGCCGTCA 960
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 901 GCGGCCTACTTCCTGTGCCCGTCCTACGACTCGCTCGTCGGCACGTGCGGCGAGCCGTCA 960
Qy 961 CCGTACAGAGACTTCACCTTCGGGGAGTACAGGAGGAAGGTGCAGGAGGACGTCAAGAGG 1020
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 961 CCGTACAGAGACTTCACCTTCGGGGAGTACAGGAGGAAGGTGCAGGAGGACGTCAAGAGG 1020
Qy 1021 ACCGGAAGAAAGATTGGGCTCCCCAACTTTCTCAAACACCGGCCACCCCCTCAATCACGG 1080
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 1021 ACCGGAAGAAAGATTGGGCTCCCCAACTTTCTCAAACACCGGCCACCCCCTCAATCACGG 1080
Qy 1081 CCCGCCTAA 1089
|||||||||
Db 1081 CCCGCCTAA 1089
Response to Applicant’s Argument
Applicant's arguments filed 04/14/2026 have been fully considered but they are not persuasive.
Regarding rejection over Troyer et al. applicant argues claim 1 has been amended to recite, "wherein the GA2 oxidase protein is, or comprises an amino acid sequence that is, at least 95% identical to an amino acid sequence selected from the group consisting of SEQ ID NO: 4, SEQ ID NO: 6, and SEQ ID NO: 18, and wherein the plant-expressible promoter is a vascular promoter." Applicant argues Troyer is silent regarding "wherein the plant-expressible promoter is a vascular promoter.", therefore Troyer fails to teach every element required by claim (Response to rejection, page 14, paragraphs 2-3).
Regarding Yi-dan et al., applicant argues Yi-dan is silent regarding "wherein the plant-expressible promoter is a vascular promoter." therefore Yi-dan fails to teach every element required by claim 1 (Response to rejection, page 15, paragraph 2).
Applicant's arguments have been fully considered but they are not persuasive since the limitation of SEQ ID NO:4 and “wherein the plant-expressible promoter is a vascular promoter” would mean as defined by applicant "vascular promoter" refers to a plant-expressible promoter that drives, causes or initiates expression of a transcribable DNA sequence or transgene operably linked to such promoter in one or more vascular tissue(s) of the plant, even if the promoter is also expressed in other non-vascular plant cell(s) or tissue(s) (Spec, page 38 paragraph 0193). Therefore it would need to drive, causes or initiates expression of a transcribable DNA sequence or transgene in one or more vascular tissue of the plants even if the is also expressed in other non-vascular plant cell(s) or tissue(s), therefore the evidence from maizeGDB database and Hraska et al. has been added to show that the gene is expressed in vascular tissues with its own natural promoter or with the use of CaMV 35S promoter, therefore the rejection has been maintained.
Following 35 USC § 103 rejection has been modified to analyze the amended limitation of GA2 oxidase is protein of SEQ ID NO:4 and the operably linked promoter is a vascular promoter in claim 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.
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.
Obvious over Yi-dan et al. and in further in view of Jeon et al. and Weeks et al.
Claims 1, 47-48, 57-59 and 72 rejected under 35 U.S.C. 103 as being unpatentable over Yi-dan et al. and further in view of Jeon et al. (Published: 2016, Journal: Plant Biotechnology Journal 14: 1161–1170), and further in view of over Weeks et al. (Patent No.: US 7,598, 430 B2, Date of Patent: Oct. 6, 2009).
Claims are drawn a recombinant DNA construct comprising a GA2 oxidase protein or polynucleotide of SEQ ID NO:3 encoding polypeptide of SEQ ID NO: 4 and a plant cell, a plant comprising the recombinant construct. Claims are drawn a maize plant cell, a maize plant comprising the recombinant construct.
Regarding claims 1 and 47, Yi-dan et al. discloses the overexpression of ZmGA2ox6 gene reduce plant height (page 1, abstract). Yi-dan et al. discloses the expression of ZmGA2ox6 gene in A. thaliana wherein the expressed plant has decreased plant height (page 4, figures 3-4, see figure below from foreign copy). ZmGA2ox6 gene has 100% identity to applicant’s SEQ ID NO:4 as protein and SEQ ID NO:3 as gene (see alignment below).
Yi-dan et al. teaches recombinant plant expression vector pCAMBIA-3301 comprising ZmGA2ox6 gene (page 8, Embodiment 3, first paragraph).
Furthermore, Jeon et al. teaches xylem-preferential expression of PdGA20ox1 a gibberellin 20-oxidase 1 from Pinus densiflora with vascular tissue specific promoter as (developing xylem 15) DX15 (i.e. DX15::PdGA20ox1) improves biomass production in a hybrid poplar where there were no undesirable properties indicating the controlled production of GAs through a tissue-specific promoter can be utilized as an efficient biotechnological tool for producing enhanced plant biomass, minimizing unwanted effects compared to 35S::PdGA20ox1 using 35S promoter (page 1161, Abstract). Jeon et al. expression of DX15 promoter is stem-specific (i.e. vascular tissue) (page 1162, right paragraph 2).
Jeon et al. teaches their finding showed that developing xylem (DX) preferential production of GA may provide useful tools for engineering woody biomass production not only in poplar, but also in related tree species (page 1167, right paragraph 3).
Therefore it would have been obvious to a skilled in the art to express the ZmGA2ox6 gene (i.e. encoding SEQ ID NO:4) under plant expressible 35S promoter in plants and someone skilled in the art would use the vascular tissue specific DX15 promoter compared to 35S promoter so that there will be least unwanted effects to the plant that would have prompt variations of the expression of the ZmGA2ox6 under the vascular specific DX15 promoter with predictable results of least unwanted effects to the plant.
Regarding claim 57, Weeks et al. claim 1 recites a Agrobacterium strain harbors the polynucleotide.
Regarding claims 48, 58-59 and 72, Weeks et al. teaches method of transforming corn plant with Agrobacterium strain (cols. 35-36). Weeks et al. claims 1, 7-9 and 47 recites transforming GA2 oxidase gene comprising the plant expressible promoter in to a maize plant via Agrobacterium mediated transformation (Weeks et al. claim 3) and cultivating and screening the plant for the stable integration of the construct in at least one cell.
Obvious over Yi-dan et al. and further in view of Jeon et al, Weeks et al. and Lo et al.
Claims 1, 48 and 51 rejected under 35 U.S.C. 103 as being unpatentable over Yi-dan et al. and further in view of Weeks et al. and further in view of Jeon et al. and further in view of Lo et al. (Published: 2017, Journal: Plant Biotechnology Journal 15: 850–864).
Claims are drawn a recombinant DNA construct comprising a GA2 oxidase protein or polynucleotide of SEQ ID NO:3 encoding polypeptide of SEQ ID NO: 4 and a corn plant cell, a corn plant comprising the recombinant construct. Claims are further drawn to the transgenic corn plant is at least 10% shorter than the wild type control plant.
Regarding claims 1 and 48, Yi-dan et al. teaches recombinant plant expression vector pCAMBIA-3301 comprising ZmGA2ox6 gene (page 8, Embodiment 3, first paragraph). The vector would comprise CAMV 35S promoter which is plant expressible. For example Mousavi et al. showed the evidence the vector comprise the plant expressible CAMV 35S promoter (page 499, Figure 1).
Furthermore, Jeon et al. teaches xylem-preferential expression of PdGA20ox1 a gibberellin 20-oxidase 1 from Pinus densiflora with vascular tissue specific promoter as (developing xylem 15) DX15 (i.e. DX15::PdGA20ox1) improves biomass production in a hybrid poplar where there were no undesirable properties indicating the controlled production of GAs through a tissue-specific promoter can be utilized as an efficient biotechnological tool for producing enhanced plant biomass, minimizing unwanted effects compared to 35S::PdGA20ox1 using 35S promoter (page 1161, Abstract). Jeon et al. expression of DX15 promoter is stem-specific (i.e. vascular tissue) (page 1162, right paragraph 2).
Jeon et al. teaches their finding showed that developing xylem (DX) preferential production of GA may provide useful tools for engineering woody biomass production not only in poplar, but also in related tree species (page 1167, right paragraph 3).
Weeks et al. teaches method of transforming corn plant with Agrobacterium strain (cols. 35-36). Weeks et al. claims 1, 7-9 and 47 recites transforming GA2 oxidase gene comprising the plant expressible promoter in to a maize plant via Agrobacterium mediated transformation (Weeks et al. claim 3) and cultivating and screening the plant for the stable integration of the construct in at least one cell.
Regarding claim 51, furthermore, Lo et al. teaches the overexpression of a rice GA2ox6 causes the rice height decrease (page 850, Abstract).
Therefore, it would have been obvious from teaching, suggestion and motivation of Weeks et al. to integrate a construct comprising GA2 oxidase gene under control of vascular tissue specific promoter as taught by Yi-dan et al. and Jeon et al. in a maize (i.e. corn) plant that would have reduced height further suggested by Lo et al. that the overexpression of a relate rice gene GA2ox6 causes the rice height decrease that would lead to screening of the progenies for change in height of the transgenic corn plant leading to transgenic corn plant is at least 10% shorter than the wild type control plant.
Regarding claim 56, Lo et al. teaches their dwarf transgenic plant comprise normal flower and grain development (page 855, Figure 5).
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Response to Applicant’s Argument
Applicant's arguments filed 04/14/2026 have been fully considered but they are not persuasive.
Applicant argues Weeks is silent regarding "an amino acid sequence that is, at least 95% identical to an amino acid sequence selected from the group consisting of SEQ ID NO: 4, SEQ ID NO: 6, and SEQ ID NO: 18," as well as "wherein the plant-expressible promoter is a vascular promoter." Applicant argues Lo fails to cure these deficiencies, as the teachings of Lo are limited to specific GA2 oxidase mutants in rice (Response to rejection, page 16, paragraph 3).
Applicant's arguments have been fully considered but they are not persuasive since Furthermore, Jeon et al. teaches xylem-preferential expression of PdGA20ox1 a gibberellin 20-oxidase 1 with vascular tissue specific promoter as (developing xylem 15) DX15 (i.e. DX15::PdGA20ox1) improves biomass production in a hybrid poplar where there were no undesirable properties indicating the controlled production of GAs through a tissue-specific promoter can be utilized as an efficient biotechnological tool for producing enhanced plant biomass, minimizing unwanted effects compared to 35S::PdGA20ox1 using 35S promoter (page 1161, Abstract). Therefore, someone skilled in the art would operatively link a vascular tissue specific promoter to the gene encoding SEQ ID NO:4 taught by Yi-dan et al.
Obvious over Yi-dan et al. and further in view of Weeks et al. and Svitashev et al.
Claims 1, 58, 60-61, 63-70, and 72-74 are rejected under 35 U.S.C. 103 as being unpatentable over Yi-dan et al. and further in view of Weeks et al., and further in view of Svitashev et al. (Published: 2015, Journal: Plant Physiology, 169: 931–945).
Claims are drawn a recombinant DNA construct comprising a GA2 oxidase protein or polynucleotide of SEQ ID NO:3 encoding polypeptide of SEQ ID NO: 4 and a corn plant cell, a corn plant comprising the recombinant construct. Claims are further drawn to the site directed integration of the GA2 oxidase gene in the maize plant.
Regarding claims 1 and 58, Weeks et al. claims 1, 7-9 and 47 recites transforming GA2 oxidase gene comprising the plant expressible promoter in to a maize plant via Agrobacterium mediated transformation (Weeks et al. claim 3) and cultivating and screening the plant for the stable integration of the construct in at least one cell.
Regarding claims 60-61, Weeks et al. does not teach specific sequence of a GA2 oxidase gene to target in targeted genome editing.
Yi-dan et al. teaches the overexpression of ZmGA2ox6 gene reduce plant height (page 1, abstract). Yi-dan et al. teaches the expression of ZmGA2ox6 gene in A. thaliana wherein the expressed plant has decreased plant height (page 4, figures 3-4, see figure below from foreign copy). ZmGA2ox6 gene has 100% identity to applicant’s SEQ ID NO:4 as GA2 oxidase protein. Therefore, someone skilled in the art would integrate the gene for site directed integration since the produced maize plant would have predictable shorter stature.
Furthermore, Jeon et al. teaches xylem-preferential expression of PdGA20ox1 a gibberellin 20-oxidase 1 from Pinus densiflora with vascular tissue specific promoter as (developing xylem 15) DX15 (i.e. DX15::PdGA20ox1) improves biomass production in a hybrid poplar where there were no undesirable properties indicating the controlled production of GAs through a tissue-specific promoter can be utilized as an efficient biotechnological tool for producing enhanced plant biomass, minimizing unwanted effects compared to 35S::PdGA20ox1 using 35S promoter (page 1161, Abstract). Jeon et al. expression of DX15 promoter is stem-specific (i.e. vascular tissue) (page 1162, right paragraph 2). Therefore, someone skilled in the art would operably link a vascular tissue specific DX15 promoter to the SEQ ID N: 4.
Weeks et al., Yi-dan et al. and Jeon et al. does not teach site directed integration using DNA donor template with homology arms.
Svitashev et al. teaches insertion of a trait gene at a site near LIG1 by homology-directed repair (page 931, Abstract). Svitashev et al. teaches regeneration of two events with a single copy of an intact MoPAT gene indicative of homology-directed gene insertion at the LIG target site (page 938, right last paragraph, Figure 4). Svitashev et al. teaches homology region 1 and 2 (i.e. homology arms) (page 942, right paragraph 40.
Therefore, someone skilled in the art before the effective date of filing of the invention from teaching, suggestion and motivation of Weeks et al., Yi-dan et al. and Jeon et al. would integrate the Yi-dan et al.’s ZmGA2ox6 gene in a maize line leading to development of shorter stature of the plant and develop the method of targeted genome editing technique as taught by Svitashev et al.
Regarding claim 63, given the Yi-dan et al.’s ZmGA2ox6 and public corn genome available, creating homology arm for example with at least 20 consecutive nucleotides of a target site in the genome is within the skill of the art. For example, Svitashev et al. teaches homology region 1 and 2 (i.e. homology arms) (page 942, right paragraph 40, see figure 4 below). Therefore, someone skilled in the art would develop such integration using Yi-dan et al.’s ZmGA2ox6 (i.e. gene encoding SEQ ID NO:4).
Regarding claim 64-66, Svitashev et al. teaches Cas9 is a RNA-guided site specific endonuclease (page 931, Abstract).
Regarding claim 67, Svitashev et al. teaches maize cell transformed with guide RNA (page 931, Abstract).
Regarding claim 68, Svitashev et al. teaches Double-strand breaks generated by RNA-guided Cas9 endonuclease (page 931, Abstract).
Regarding claim 69, Svitashev et al. teaches use of single gRNA (page 942, left paragraph 1, page 932, left paragraph 1).
Regarding claim 70, Svitashev et al. teaches NGG PAM sequence for Cas9 for use as the spacer in the gRNA (page 932, right paragraph 2).
Regarding claim 72-73, Svitashev et al. teaches method of molecular characterization, DNA-blot hybridization analysis of regenerated plants with genomic- and donor DNA genomic- and donor DNA specific probes shown in Figure 4A showed the plant regenerated from events contain MoPAT gene integration at target site (page 938, last paragraph).
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Regarding claim 74, Svitashev et al. teaches method for examination of transmission and segregation of MoPAT in T0 plants wherein MoPAT is selectable and visible marker gene and displayed red fluorescence which helped to select for transformed Calli, regeneration of fertile plants (page 933, left last paragraph).
Response to Applicant’s Argument
Applicant's arguments filed 04/14/2026 have been fully considered but they are not persuasive.
Applicant argues Weeks is silent regarding "an amino acid sequence that is, at least 95% identical to an amino acid sequence selected from the group consisting of SEQ ID NO: 4, SEQ ID NO: 6, and SEQ ID NO: 18," as well as "wherein the plant-expressible promoter is a vascular promoter." Applicant argues Yi-dan, Lo, and Svitashev each fail to cure these deficiencies Applicant argues the teachings of Lo are limited to specific GA2 oxidase mutants in rice, the teachings of Yi-dan are silent regarding a vascular plant promoter, and the teachings of Svitashev are generic methods of gene editing in maize (Response to rejection, page 18, last paragraph).
Applicant's arguments have been fully considered but they are not persuasive since Furthermore, Jeon et al. teaches xylem-preferential expression of PdGA20ox1 a gibberellin 20-oxidase 1 with vascular tissue specific promoter as (developing xylem 15) DX15 (i.e. DX15::PdGA20ox1) improves biomass production in a hybrid poplar where there were no undesirable properties indicating the controlled production of GAs through a tissue-specific promoter can be utilized as an efficient biotechnological tool for producing enhanced plant biomass, minimizing unwanted effects compared to 35S::PdGA20ox1 using 35S promoter (page 1161, Abstract). Therefore someone skilled in the art would operatively link a vascular tissue specific promoter to the gene encoding SEQ ID NO:4 taught by Yi-dan 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).”
Following double patenting rejection has been modified to analyze the amended limitation of GA2 oxidase is protein of SEQ ID NO:4 and the operably linked promoter is a vascular promoter in claim 1.
Double Patenting
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 conflicting claims 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) 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 www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 and 47-48 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 25 of copending Application No. 17530950 (hereafter referred as ‘950) (reference application), and further in view of Yi-dan et al. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claims 1, 47-48, copending Application ‘950 claim 1 recites a transgene comprising heterologous plant -expressible promoter operably linked to transcribable DNA sequence encoding GA2 oxidase protein that causes the corn plant to be semi dwarf phenotype.
Application ‘950 claim 25 recites the promoter is vascular promoter.
Application ‘950 does not teach the gene encodes protein of SEQ ID NO:4.
Yi-dan et al. teaches the overexpression of ZmGA2ox6 gene reduce plant height (page 1, abstract). Yi-dan et al. teaches the expression of ZmGA2ox6 gene in A. thaliana wherein the expressed plant has decreased plant height (page 4, figures 3-4, see figure below from foreign copy). ZmGA2ox6 gene has 100% identity to applicant’s SEQ ID NO:4 as protein and SEQ ID NO:3 as gene (see alignment below).
Yi-dan et al. teaches recombinant plant expression vector pCAMBIA-3301 comprising ZmGA2ox6 gene (page 8, Embodiment 3, first paragraph).
Therefore, it would have been obvious to a skilled in the art to express the ZmGA2ox6 gene (i.e. encoding SEQ ID NO:4) under the control of the vascular tissue specific promoter as taught by copending Application ‘950.
Response to Applicant’s Argument
Applicant's arguments filed 04/14/2026 have been fully considered but they are not persuasive.
Applicant argues ‘950 application provides no teaching or suggestion regarding "wherein the GA2 oxidase protein is, or comprises an amino acid sequence that is, at least 95% identical to an amino acid sequence selected from the group consisting of SEQ ID NO: 4, SEQ ID NO: 6, and SEQ ID NO: 18, and wherein the plant-expressible promoter is a vascular promoter." (Response to rejection, page 19, paragraph 4).
Applicant's arguments have been fully considered but they are not persuasive since someone skilled in the art would operatively link a vascular tissue specific promoter to the ZmGA2ox6 gene encoding SEQ ID NO:4 taught by Yi-dan et al.
Claims 1 and 47-48 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 20 of copending Application No. 17531200 (hereafter referred as ‘200) (reference application) and further in view of Yi-dan et al. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claims 1, 47-48, copending Application ‘200 claim 1 recites a DNA construct comprising plant -expressible promoter operably linked to transcribable DNA sequence encoding GA2 oxidase protein that causes the maize plant to have height reduced by at least 30%.
copending Application ‘200 claim 20 recites the promoter is vascular promoter.
copending Application ‘200 does not teach the gene encodes protein of SEQ ID NO:4.
Yi-dan et al. teaches the overexpression of ZmGA2ox6 gene reduce plant height (page 1, abstract). Yi-dan et al. teaches the expression of ZmGA2ox6 gene in A. thaliana wherein the expressed plant has decreased plant height (page 4, figures 3-4, see figure below from foreign copy). ZmGA2ox6 gene has 100% identity to applicant’s SEQ ID NO:4 as protein and SEQ ID NO:3 as gene (see alignment below).
Yi-dan et al. teaches recombinant plant expression vector pCAMBIA-3301 comprising ZmGA2ox6 gene (page 8, Embodiment 3, first paragraph).
Therefore, it would have been obvious to a skilled in the art to express the ZmGA2ox6 gene (i.e. encoding SEQ ID NO:4) under the control of the vascular tissue specific promoter as taught by copending Application ‘200.
Response to Applicant’s Argument
Applicant's arguments filed 04/14/2026 have been fully considered but they are not persuasive.
Applicant argues the '200 application provides no teaching or suggestion regarding "wherein the GA2 oxidase protein is, or comprises an amino acid sequence that is, at least 95% identical to an amino acid sequence selected from the group consisting of SEQ ID NO: 4, SEQ ID NO: 6, and SEQ ID NO: 18, and wherein the plant-expressible promoter is a vascular promoter." (Response to rejection, page 20, second paragraph).
Applicant's arguments have been fully considered but they are not persuasive since someone skilled in the art would operatively link a vascular tissue specific promoter to the ZmGA2ox6 gene encoding SEQ ID NO:4 taught by Yi-dan et al.
Claims 1, 48 and 56 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 25 of copending Application No. 17530950 (hereafter referred as ‘950) (reference application) and further in view of Yi-dan et al. and further in view of Lo et al. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claims 1 and 48, copending Application ‘950 claim 1 recites a transgene comprising heterologous plant -expressible promoter operably linked to transcribable DNA sequence encoding GA2 oxidase protein that causes the corn plant to be semi dwarf phenotype.
Application ‘950 claim 25 recites the promoter is vascular promoter.
copending Application ‘950 does not teach the gene encodes protein of SEQ ID NO:4.
Yi-dan et al. teaches the overexpression of ZmGA2ox6 gene reduce plant height (page 1, abstract). Yi-dan et al. teaches the expression of ZmGA2ox6 gene in A. thaliana wherein the expressed plant has decreased plant height (page 4, figures 3-4, see figure below from foreign copy). ZmGA2ox6 gene has 100% identity to applicant’s SEQ ID NO:4 as protein and SEQ ID NO:3 as gene (see alignment below).
Yi-dan et al. teaches recombinant plant expression vector pCAMBIA-3301 comprising ZmGA2ox6 gene (page 8, Embodiment 3, first paragraph).
Therefore, it would have been obvious to a skilled in the art to express the ZmGA2ox6 gene (i.e. encoding SEQ ID NO:4) under the control of the vascular tissue specific promoter as taught by copending Application ‘950.
Regarding claim 56, Lo et al. teaches their dwarf transgenic plant comprise normal flower and grain development (page 855, Figure 5).
Response to Applicant’s Argument
Applicant's arguments filed 04/14/2026 have been fully considered but they are not persuasive.
Applicant argues the '950 application provides no teaching or suggestion regarding "wherein the GA2 oxidase protein is, or comprises an amino acid sequence that is, at least 95% identical to an amino acid sequence selected from the group consisting of SEQ ID NO: 4, SEQ ID NO: 6, and SEQ ID NO: 18, and wherein the plant-expressible promoter is a vascular promoter." Lo fails to cure this deficiency (Response to rejection, page 22, paragraph 2).
Applicant's arguments have been fully considered but they are not persuasive since someone skilled in the art would operatively link a vascular tissue specific promoter to the ZmGA2ox6 gene encoding SEQ ID NO:4 taught by Yi-dan et al.
Claims 1, 48 and 56 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 20 of copending Application No. 17531200 (hereafter referred as ‘200) (reference application) and further in view of Yi-dan et al. and further in view of Lo et al. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claims 1, 48, copending Application ‘200 claim 1 recites a DNA construct comprising plant -expressible promoter operably linked to transcribable DNA sequence encoding GA2 oxidase protein.
copending Application ‘200 claim 20 recites the promoter is vascular promoter.
copending Application ‘200 does not teach the gene encodes protein of SEQ ID NO:4.
Yi-dan et al. teaches the overexpression of ZmGA2ox6 gene reduce plant height (page 1, abstract). Yi-dan et al. teaches the expression of ZmGA2ox6 gene in A. thaliana wherein the expressed plant has decreased plant height (page 4, figures 3-4, see figure below from foreign copy). ZmGA2ox6 gene has 100% identity to applicant’s SEQ ID NO:4 as protein and SEQ ID NO:3 as gene (see alignment below).
Yi-dan et al. teaches recombinant plant expression vector pCAMBIA-3301 comprising ZmGA2ox6 gene (page 8, Embodiment 3, first paragraph).
Therefore, it would have been obvious to a skilled in the art to express the ZmGA2ox6 gene (i.e. encoding SEQ ID NO:4) under the control of the vascular tissue specific promoter as taught by copending Application ‘200.
Regarding claim 56, Lo et al. teaches their dwarf transgenic plant comprise normal flower and grain development (page 855, Figure 5).
Response to Applicant’s Argument
Applicant's arguments filed 04/14/2026 have been fully considered but they are not persuasive.
Applicant argues the '200 application provides no teaching or suggestion regarding "wherein the GA2 oxidase protein is, or comprises an amino acid sequence that is, at least 95% identical to an amino acid sequence selected from the group consisting of SEQ ID NO: 4, SEQ ID NO: 6, and SEQ ID NO: 18, and wherein the plant-expressible promoter is a vascular promoter." Applicant argues Lo fails to cure this deficiency (Response to rejection, page 22, last paragraph).
Applicant's arguments have been fully considered but they are not persuasive since skilled in the art would operatively link a vascular tissue specific promoter to the ZmGA2ox6 gene encoding SEQ ID NO:4 taught by Yi-dan et al.
Claims 1, 58-61, 63-70, and 72-74 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 25 of copending Application No. 17530950 (hereafter referred as ‘950) (reference application) and further in view of Yi-dan et al. and further in view of Svitashev et al. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claims 1 and 58, ‘950 claim 1 recites a transgene comprising heterologous plant -expressible promoter operably linked to transcribable DNA sequence encoding GA2 oxidase protein that causes the corn plant to be semi dwarf phenotype. ‘950 claim 1 recites the transgenic plants are regenerated for harvest.
Application ‘950 claim 25 recites the promoter is vascular promoter.
copending Application ‘950 does not teach the gene encodes protein of SEQ ID NO:4.
Yi-dan et al. teaches the overexpression of ZmGA2ox6 gene reduce plant height (page 1, abstract). Yi-dan et al. teaches the expression of ZmGA2ox6 gene in A. thaliana wherein the expressed plant has decreased plant height (page 4, figures 3-4, see figure below from foreign copy). ZmGA2ox6 gene has 100% identity to applicant’s SEQ ID NO:4 as protein and SEQ ID NO:3 as gene (see alignment below).
Yi-dan et al. teaches recombinant plant expression vector pCAMBIA-3301 comprising ZmGA2ox6 gene (page 8, Embodiment 3, first paragraph).
Therefore, it would have been obvious to a skilled in the art to express the ZmGA2ox6 gene (i.e. encoding SEQ ID NO:4) under the control of the vascular tissue specific promoter as taught by copending Application ‘950.
Regarding claims 59, Svitashev et al. teaches Agrobacterium mediated transformation of their construct (page 942, left paragraph 2).
Regarding claims 60-61, copending Application ‘950 does not teach gene integration of the GA2 oxidase gene using targeted genome editing.
Svitashev et al. teaches insertion of a trait gene at a site near LIG1 by homology-directed repair (page 931, Abstract). Svitashev et al. teaches regeneration of two events with a single copy of an intact MoPAT gene indicative of homology-directed gene insertion at the LIG target site (page 938, right last paragraph, Figure 4). Svitashev et al. teaches homology region 1 and 2 (i.e. homology arms) (page 942, right paragraph 40.
Therefore, someone skilled in the art before the effective date of filing of the invention from teaching, suggestion and motivation of ‘950 to develop a plant comprising GA2 oxidase protein in a maize line would lead to develop a method of transformation of the GA2 oxidase protein by genomic integration using a homology directed gene integration as taught by Svitashev et al. leading to development of shorter stature of the plant and develop the method of targeted genome editing technique as taught by Svitashev et al.
Regarding claim 63, creating homology arm for example with at least 20 consecutive nucleotides of a target site in the genome is within the skill of the art. For example, Svitashev et al. teaches homology region 1 and 2 (i.e. homology arms) (page 942, right paragraph 40, see figure 4 below). Therefore, someone skilled in the art would develop such integration using copending Application ‘950’s GA2 oxidase gene.
Regarding claim 64-66, Svitashev et al. teaches Cas9 is a RNA-guided site specific endonuclease (page 931, Abstract).
Regarding claim 67, Svitashev et al. teaches maize cell transformed with guide RNA (page 931, Abstract).
Regarding claim 68, Svitashev et al. teaches Double-strand breaks generated by RNA-guided Cas9 endonuclease (page 931, Abstract).
Regarding claim 69, Svitashev et al. teaches use of single gRNA (page 942, left paragraph 1, page 932, left paragraph 1).
Regarding claim 70, Svitashev et al. teaches NGG PAM sequence for Cas9 for use as the spacer in the gRNA (page 932, right paragraph 2).
Regarding claim 72-73, Svitashev et al. teaches method of molecular characterization, DNA-blot hybridization analysis of regenerated plants with genomic- and donor DNA genomic- and donor DNA specific probes shown in Figure 4A showed the plant regenerated from events contain MoPAT gene integration at target site (page 938, last paragraph).
Regarding claim 74, Svitashev et al. teaches method for examination of transmission and segregation of MoPAT in T0 plants wherein MoPAT is selectable and visible marker gene and displayed red fluorescence which helped to select for transformed Calli, regeneration of fertile plants (page 933, left last paragraph).
Response to Applicant’s Argument
Applicant's arguments filed 04/14/2026 have been fully considered but they are not persuasive.
Applicant argues the '950 application provides no teaching or suggestion regarding "wherein the GA2 oxidase protein is, or comprises an amino acid sequence that is, at least 95% identical to an amino acid sequence selected from the group consisting of SEQ ID NO: 4, SEQ ID NO: 6, and SEQ ID NO: 18, and wherein the plant-expressible promoter is a vascular promoter." Applicant argues Svitashev fails to cure this deficiency (Response to rejection, page 23, paragraph 4).
Applicant's arguments have been fully considered but they are not persuasive since someone skilled in the art would operatively link a vascular tissue specific promoter to the ZmGA2ox6 gene encoding SEQ ID NO:4 taught by Yi-dan et al.
Claims 1, 58-61, 63-70, and 72-74 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 20 of copending Application No. 17531200 (hereafter referred as ‘200) (reference application) and further in view of Yi-dan et al. and further in view of Svitashev et al. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claims 1, 58, copending Application ‘200 claim 1 recites a DNA construct comprising plant -expressible promoter operably linked to transcribable DNA sequence encoding GA2 oxidase protein. ‘200 claim 1 recites the transgenic plants are regenerated in field.
copending Application ‘200 claim 20 recites the promoter is vascular promoter.
copending Application ‘200 does not teach the gene encodes protein of SEQ ID NO:4.
Yi-dan et al. teaches the overexpression of ZmGA2ox6 gene reduce plant height (page 1, abstract). Yi-dan et al. teaches the expression of ZmGA2ox6 gene in A. thaliana wherein the expressed plant has decreased plant height (page 4, figures 3-4, see figure below from foreign copy). ZmGA2ox6 gene has 100% identity to applicant’s SEQ ID NO:4 as protein and SEQ ID NO:3 as gene (see alignment below).
Yi-dan et al. teaches recombinant plant expression vector pCAMBIA-3301 comprising ZmGA2ox6 gene (page 8, Embodiment 3, first paragraph).
Therefore, it would have been obvious to a skilled in the art to express the ZmGA2ox6 gene (i.e. encoding SEQ ID NO:4) under the control of the vascular tissue specific promoter as taught by copending Application ‘200.
Regarding claims 59, Svitashev et al. teaches Agrobacterium mediated transformation of their construct (page 942, left paragraph 2).
Regarding claims 60-61, copending Application ‘200 does not teach gene integration of the GA2 oxidase gene using targeted genome editing.
Svitashev et al. teaches insertion of a trait gene at a site near LIG1 by homology-directed repair (page 931, Abstract). Svitashev et al. teaches regeneration of two events with a single copy of an intact MoPAT gene indicative of homology-directed gene insertion at the LIG target site (page 938, right last paragraph, Figure 4). Svitashev et al. teaches homology region 1 and 2 (i.e. homology arms) (page 942, right paragraph 40.
Therefore, someone skilled in the art before the effective date of filing of the invention from teaching, suggestion and motivation of ‘200 to develop a plant comprising GA2 oxidase protein in a maize line would lead to develop a method of transformation of the GA2 oxidase protein by genomic integration using a homology directed gene integration as taught by Svitashev et al. leading to development of shorter stature of the plant and develop the method of targeted genome editing technique as taught by Svitashev et al.
Regarding claim 63, creating homology arm for example with at least 20 consecutive nucleotides of a target site in the genome is within the skill of the art. For example, Svitashev et al. teaches homology region 1 and 2 (i.e. homology arms) (page 942, right paragraph 40, see figure 4 below). Therefore, someone skilled in the art would develop such integration using copending Application ‘200’s GA2 oxidase gene.
Regarding claim 64-66, Svitashev et al. teaches Cas9 is a RNA-guided site specific endonuclease (page 931, Abstract).
Regarding claim 67, Svitashev et al. teaches maize cell transformed with guide RNA (page 931, Abstract).
Regarding claim 68, Svitashev et al. teaches Double-strand breaks generated by RNA-guided Cas9 endonuclease (page 931, Abstract).
Regarding claim 69, Svitashev et al. teaches use of single gRNA (page 942, left paragraph 1, page 932, left paragraph 1).
Regarding claim 70, Svitashev et al. teaches NGG PAM sequence for Cas9 for use as the spacer in the gRNA (page 932, right paragraph 2).
Regarding claim 72-73, Svitashev et al. teaches method of molecular characterization, DNA-blot hybridization analysis of regenerated plants with genomic- and donor DNA genomic- and donor DNA specific probes shown in Figure 4A showed the plant regenerated from events contain MoPAT gene integration at target site (page 938, last paragraph).
Regarding claim 74, Svitashev et al. teaches method for examination of transmission and segregation of MoPAT in T0 plants wherein MoPAT is selectable and visible marker gene and displayed red fluorescence which helped to select for transformed Calli, regeneration of fertile plants (page 933, left last paragraph).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Applicant’s Argument
Applicant's arguments filed 04/14/2026 have been fully considered but they are not persuasive.
Applicant argues the '200 application provides no teaching or suggestion regarding "wherein the GA2 oxidase protein is, or comprises an amino acid sequence that is, at least 95% identical to an amino acid sequence selected from the group consisting of SEQ ID NO: 4, SEQ ID NO: 6, and SEQ ID NO: 18, and wherein the plant-expressible promoter is a vascular promoter." Applicant argues the Svitashev fails to cure this deficiency (Response to rejection, page 23, paragraph 4).
Applicant's arguments have been fully considered but they are not persuasive since someone skilled in the art would operatively link a vascular tissue specific promoter to the ZmGA2ox6 gene encoding SEQ ID NO:4 taught by Yi-dan et al.
Conclusion
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.
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/SANTOSH SHARMA/Examiner, Art Unit 1663
/DAVID H KRUSE/Primary Examiner, Art Unit 1663
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