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 .
Claims
The amendments received on Feb. 17, 2026, have been entered. All previously examined claims have been canceled. Claims 67-86 have been newly added. Claims 67-86 are pending and are examined in this Office Action.
Objections and Rejections That are Withdrawn
The objection to the specification is withdrawn in light of Applicant’s amendments to the specification.
All claim objections and rejections are moot in light of Applicant’s cancelation of all claims that were previously examined. Applicant presented arguments that applied to the canceled claims, but they do not apply to the newly written rejections, below.
Claim Objections
Claim 69 is objected to because it recites “truncates DHA protein upstream of the conserved active site of the DHS protein”, and this is technically incorrect. The word “upstream” is used for nucleic acids to indicate being closer to the 5’ end of the nucleic acid. For a protein, the equivalent would be to recite - - closer to the N-terminus of the protein - -, or - - introduces a stop codon upstream of the nucleotides encoding the conserved active site - -, or some equivalent language.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Indefiniteness
Claims 84 and 85 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. All dependent claims are included in these rejections unless they include a limitation that overcomes the deficiencies of the parent claim.
Claim 84 requires selecting a mutant progeny “homozygous for the DHS gene from the seed” but the claim also requires the mutant progeny to have a first allele of the DHS gene and a second allele of the DHS gene. This is confusing, because to be fully homozygous all alleles at a particular locus must be the same allele. It is unclear how a plant can be both homozygous and also have a first and second allele. To confuse the issues even further, the claim ends with “and the mutant progeny further has one or more genes homologous and/or homeologous to the DHS gene” and claim 85 requires the “one or more genes homologous and/or homeologous to the DHS gene” to have one or more mutations, which means that in claim 84 it is optional as to whether or not the gene(s) that are homologous or homeologous have a mutation. It is unclear how there can be a non-mutated homologous or homeologous version of the DHS gene and be considered “homozygous” for the mutant allele that is required in claim 84.
Furthermore the addition of the term “homeologous” adds its own layer of indefiniteness. The word “homeolog” was coined to refer to homologs that resulted from allopolyploidy from interspecific crosses (Glover et al. (2016) Trends in Plant Science; Vol. 21; pp 609-621; especially abstract). The term has not always been used precisely or consistently, and the definition has varied at times (Id. 609). The instant application does not provide a definition for this word, and therefore, the metes and bounds of claims that recite this word are not clear.
Lacking Written Description – NEW MATTER
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 84 and 85 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Each of these claims includes a recitation of “one or more genes homologous and/or homeologous to the DHS gene”. There is no support of “homeologous” in the originally filed specification, abstract, drawings, or claims.
Applicant must delete all new matter from the claims or point out where there is support for this limitation in the originally filed specification, abstract, drawings, or claims.
Failure to Further Limit
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 73 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 73 adds the limitation “wherein the mutant plant is polyploid”; however, claim 67 from which claim 73 depends requires the plant to have two alleles of the DHS gene, and this necessarily requires the plant to be at least a diploid which is a polyploid. An allele is an alternative gene sequence at the same locus, and there cannot be two alternative gene sequences at the same locus to make up a first and second allele unless the plant is a polyploid. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
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 rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Obvious over Hurst et al.
Claim(s) 67-69, 71, 73-75, 78, 80, and 82 are is/are rejected under 35 U.S.C. 103 as obvious over Hurst et al. (US Pre-Grant Publication US 2005/0155109; published on July 14, 2005).
The claims are drawn to a method of producing a mutant plant heterozygous for a gene encoding deoxyhypusine synthase (DHS gene) from a wild-type plant, wherein the wild-type plant has at least two alleles of the DHS gene that encode active DHS protein comprising a conserved active site, and the mutant plant has a first allele that is mutated and encodes inactive DHS protein lacking the conserved active site and a second allele that is wild-type, the method comprising inducing in the wild-type plant an addition, deletion or substitution of at least one nucleotide in the first allele of the DHS gene that disrupts coding of active DHS protein by introducing a frame shift mutation that eliminates or alters the conserved active site of the DHS protein without inducing a change in the second allele of the DHS gene, thereby obtaining a mutant plant cell heterozygous for the DHS gene, and culturing the mutant plant cell in vitro to produce the mutant plant heterozygous for the DHS gene (claim 67); including wherein the conserved active site is EAVSWGK (claim 68), and wherein the frameshift introduces a stop codon that truncates the DHS protein upstream of and within the conserved active site (claims 69 and 70), wherein the mutant plant is diploid, tetraploid, or polyploid (claims 71-73), wherein the mutant plant is a particular type of plant (claims 74-81), wherein the mutant plant is a compact dwarf, has darker green leaves, has delayed senescence, or has an increase seed size (claim 82), wherein the method step of inducing comprises transformation of cultured plant cells or explants (claim 83), wherein the method further comprises allowing the mutant plant to set seed and selecting a plant homozygous for first and second DHS genes encoding inactive DHS protein and the mutant plant further has one or more genes homologous and/or homeologous to the DHS gene (claims 84 and 85), and wherein the method further comprises reproducing the mutant plant asexually to obtain a mutant protein heterozygous for the DHS gene (claim 86).
Hurst teaches a series of independent non-transgenic mutations in DHS genes of tomato (Hurst abstract). Tomato is a diploid which is polyploid. Tomato is a fruit bearing agronomic crop plant which produces flowers. Hurst teaches introducing mutations into the genome of “Shady Lady” tomato plants using EMS mutagenesis, and then using the TILLING method to identify mutations in the DHS1 and DHS2 genes (Id. 6). Selected mutant plants were genotyped to identify plants that were homozygous or heterozygous for the mutation or were wild type (Id. 5 ¶55). Any plant that was heterozygous contained two different alleles, one mutant allele and one wild type allele. One of the mutations caused a change from glycine to arginine at position 340 of the DHS1 polypeptide and another changed a valine to isoleucine at position 96 of the DHS1 that Hurst refers to as SEQ ID NO: 3, and one changed a glutamic acid to lysine at position 134 of the partial sequence for DHS2 that Hurst refers to as SEQ ID NO: 6 (Id. 6 right column). The prior art position 340 in DHS1 corresponds to position 333 in the instant SEQ ID NO: 2 (in the context of EAVSWGK) which addresses instant claim 68.
Hurst teaches that their goal was to deliver tomato fruit to market that have been vine-ripened but remain firm without the usual softening that accompanies the onset of senescence in harvested fruit (Id. 1 ¶ 2). Hurst teaches that DHS and eIF-5A are important regulators of senescence in plants, and that DHS activates eIF-5A by hypusinating eIF-5A (Id. ¶ 3). Hurst teaches that M2 plants having a mutated DHS gene will be analyzed to determine its effect on the expression, translation, and/or activity of the DHS enzyme and if the mutation in the particular M2 plant is assessed to be useful then further phenotypic analysis was pursued (Id. 4 ¶ 35-6). Hurst teaches that harvested tomatoes from these plants remain firm longer and display less skin wrinkling and rot post-harvest compared to wild-type sibling or parental lines (Id. ¶ 37) which demonstrates a delay in senescence.
Hurst claims a method in which mutations in a DHS gene are evaluated to determine the mutation’s likelihood of having a deleterious effect on deoxyhypusine synthase enzyme activity (Id. 17 claim 60).
Although Hurst does not specifically state that the mutations at position 34o and 96 of DHS1 or the mutation at position 134 of DHS2 causes a loss of activity for the DHS encoded by the endogenous genes, it would appear that these mutations were determined to be useful after assessing the expression, translation, and/or activity of the DHS enzyme. Furthermore, Hurst specifically determined a delayed senescence of the harvested fruit, but did not specifically look at age-related, stress-induced, or pathogen-induced senescence; however, all indications are that the mutations caused a reduction in DHS activity which conferred a delay in all types of senescence involving DHS and/or eIF-5A.
Hurst does not specifically teach a frame-shift mutation.
Hurst suggests mutagens that create primarily point mutations and short deletions, insertions, transversions, and/or transitions (about 1 to about 5 nucleotides) and suggests EMS as one such mutagen (Hurst 3 ¶ 27). Deletions or insertions of 1, 2, 4, or 5 nucleotides would cause a frameshift.
Hurst provides five examples of mutants in which one amino acid was substituted and refers to them as exemplary mutations (Id. 4 37). However, Hurst does not teach every single mutation obtained during their mutagenesis program.
It is more likely than not that at least one mutant tomato plant was generated in which a mutation caused a frameshift in one of the DHS genes. It is more likely than not that at least one of such frameshift mutations would have introduced a stop codon that caused truncation of the DHS protein that is closer to the N-terminus of the protein than the conserved active site which is amino acids 365 to 371 meaning that there are over a thousand nucleotides upstream of the segment of the gene encoding this active site.
Hurst does not teach culturing a mutant plant cell in vitro.
Hurst teaches that a variety of tomato plant materials can be mutagenized, including, but not limited to, seeds, pollen, plant tissue, or plant cells (Hurst 2-3 ¶ 26).
At the time the instant application was filed, it would have been obvious and within the scope of one of ordinary skill in the art to mutagenize tomato cells as suggested by Hurst and culture the mutant cells to regenerate a whole plant.
Obvious over Thompson et al. in view of Hurst et al. and Thompson2
Claims 67-86 are rejected under 35 U.S.C. 103 as being unpatentable over Thompson et al. (US Pre-Grant Publication US 2012/0034673) referred to hereafter as Thompson, in view of Hurst et al. (US Pre-Grant Publication US 2005/0155109; published on July 14, 2005) further in view of Thompson et al. (US Patent No. 8,232,455; issued on July 31, 2012) referred to hereafter as Thompson2.
Thompson teaches inhibition of endogenous DHS genes in plants in order to increase resistance to physiological disease (Thompson 2 ¶ 20) or to delay deterioration and spoilage (Id. ¶ 102). Resistance to physiological disease results in an in a decrease in senescence that is environmental stress-induced senescence as required by instant claim 64. A delay in deterioration and spoilage is a decrease in age-related senescence as required by instant claim 82. Thompson suggests inhibition by antisense (Id. 3 ¶ 26 on), and they suggest alfalfa as one of the choices for plants for their invention (Id. 8 ¶ 116).
Thompson does not teach introducing a mutation into an endogenous gene encoding DHS. Thompson specifically claims a consensus sequence for DHS proteins that is referred to as SEQ ID NO: 46 that consists of “EFDGSDSGARPDEAXSWGK” (see claim 71 and sequence listing). This region comprises 6 out of the seven specific amino acid residues and positions recited in claim 68, and the missing valine corresponds to the “X” taught by Thompson (see underlined region with bolded amino acids in the alignment, below):
ALIGNMENT BETWEEN INSTANT SEQ ID NO: 2 and THOMPSON2 SEQ ID
NO: 73 (Medicago/ “alfalfa”)
RESULT 4
US-12-026-483A-73
; Sequence 73, Application US/12026483A
; Patent No. 8232455
; GENERAL INFORMATION
; APPLICANT: THOMPSON, JOHN E.
; APPLICANT:WANG, TZANN-WEI
; TITLE OF INVENTION: POLYNUCLEOTIDES ENCODING CANOLA DHS AND ANTISENSE
; TITLE OF INVENTION:POLYNUCLEOTIDES THEREOF
; FILE REFERENCE: 2912940-029003
; CURRENT APPLICATION NUMBER: US/12/026,483A
; CURRENT FILING DATE: 2009-07-20
; PRIOR APPLICATION NUMBER: 10/862,440
; PRIOR FILING DATE: 2004-06-08
; PRIOR APPLICATION NUMBER: 60/570,835
; PRIOR FILING DATE: 2004-05-14
; PRIOR APPLICATION NUMBER: 60/570,833
; PRIOR FILING DATE: 2004-05-14
; PRIOR APPLICATION NUMBER: 60/479,969
; PRIOR FILING DATE: 2003-06-20
; PRIOR APPLICATION NUMBER: 60/479,968
; PRIOR FILING DATE: 2003-06-20
; PRIOR APPLICATION NUMBER: 09/725,019
; PRIOR FILING DATE: 2000-11-29
; PRIOR APPLICATION NUMBER: 09/597,771
; PRIOR FILING DATE: 2000-06-19
; PRIOR APPLICATION NUMBER: 09/348,675
; PRIOR FILING DATE: 1999-07-06
; NUMBER OF SEQ ID NOS: 165
; SOFTWARE: PatentIn version 3.5
; SEQ ID NO 73
; LENGTH: 368
; TYPE: PRT
; ORGANISM: Medicago sativa
US-12-026-483A-73
Query Match 100.0%; Score 1954; DB 9; Length 368;
Best Local Similarity 100.0%;
Matches 368; Conservative 0; Mismatches 0; Indels 0; Gaps 0;
Qy 1 MSETKQEDDTIMSSVHSTVFKESENLAGKCVQIEGYDFNRGVDYQQLLKSMLTTGFQASN 60
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 1 MSETKQEDDTIMSSVHSTVFKESENLAGKCVQIEGYDFNRGVDYQQLLKSMLTTGFQASN 60
Qy 61 FGDAVKVVNQMLDWRLVDEPIDEDCDEDKKDLEYRKSVTCKVFLGFTSNLISSGVRDVVR 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 61 FGDAVKVVNQMLDWRLVDEPIDEDCDEDKKDLEYRKSVTCKVFLGFTSNLISSGVRDVVR 120
Qy 121 YLCQHHMVHVVVTTTGGIEEDLIKCLAPTYKGEFSLPGAYLRSKGLNRIGNLLVPNENYC 180
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 121 YLCQHHMVHVVVTTTGGIEEDLIKCLAPTYKGEFSLPGAYLRSKGLNRIGNLLVPNENYC 180
Qy 181 KFEDWIIPIFDQMLKEQKEEKVLWTPSKLIARLGKEINNENSYLYWAYKNNIPVYCPGLT 240
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 181 KFEDWIIPIFDQMLKEQKEEKVLWTPSKLIARLGKEINNENSYLYWAYKNNIPVYCPGLT 240
Qy 241 DGSLGDMLYFHSFHNPGLIVDIVQDIRAMNGEAVHANPSKTGMIILGGGLPKHHICNANM 300
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 241 DGSLGDMLYFHSFHNPGLIVDIVQDIRAMNGEAVHANPSKTGMIILGGGLPKHHICNANM 300
Qy 301 MRNGADYAVFINTAQEFDGSDSGARPDEAVSWGKIRGSAKTVKVHCDATIAFPLLVAETF 360
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 301 MRNGADYAVFINTAQEFDGSDSGARPDEAVSWGKIRGSAKTVKVHCDATIAFPLLVAETF 360
Qy 361 ASRTSPLN 368
||||||||
Db 361 ASRTSPLN 368
Hurst teaches a series of independent non-transgenic mutations in DHS genes of tomato (see abstract and entire document). Tomato is a diploid fruit bearing plant. They teach introducing mutations into the genome of “Shady Lady” tomato plants using EMS mutagenesis, and then using the TILLING method to identify mutations in the DHS1 and DHS2 genes (see page 6). One of the mutations causes a change from glycine to arginine at position 340 of the DSH1 polypeptide which corresponds to position 333 in the instant SEQ ID NO: 2 (in the context of EAVSWGK).
Hurst specifically suggests that mutations that reduce DHS function are desirable and preferred mutations include mutations that prematurely truncate the translation such as mutations that create a stop codon within the coding region (Hurst 4 ¶ 34).
Thompson2 teaches the amino acid sequence for Medicago/alfalfa DHS which is referred to as SEQ ID NO: 73, and this has 100% identity to the instant SEQ ID NO: 2 (see alignment, above). Thompson2 teaches the nucleotide sequence of the cDNA encoding this DHS protein (Thompson2 Fig 107 col 9). Alfalfa is a tetraploid which is a polyploid and alfalfa flowers and is an agronomic crop. Thompson2 teaches transformation of tomato leaf explants followed by regeneration of plantlets using standard tissue culture methods (Id. col 29).
At the time the instant application was filed, it would have been obvious and within the scope of one of ordinary skill in the art to follow Thompson’s suggestion to inhibit the DHS gene in alfalfa to arrive at plants in which senescence is delayed. Given Hurst’s success in delaying senescence in tomato fruits by mutating the conserved glycine in the motif taught by Thompson, one would have had an expectation of success in causing an inhibition in DHS activity and a corresponding delay in senescence by mutating that same residue, or any of the other residues in the domain referred to by Thompson as SEQ ID NO: 46. Furthermore, using the TILLING method would allow for identification of ANY mutation within the DHS gene. It would have been obvious and within the scope of one of ordinary skill in the art to screen mutants for a desirable phenotype, such as a delay in senescence, deterioration, or spoilage, therefore, any mutations that provide this phenotype would have been identified by such a TILLING/screening process.
Because Hurst specifically suggests looking for loss of function mutants, it would have been obvious to screen and select for early stop codons introduced via frame shift mutations.
The Examiner takes official notice that different plant species are generally grown for different reasons; i.e. corn, rice, and soybean are grown for seeds; lettuce and tobacco are grown for leaves; radishes, potatoes, and carrots are grown for roots/tubers; and celery is grown from stems/stalks, etc. Therefore, it would have been prima facie obvious to specifically select for the mutant plants having improved harvestable parts for the particular plant species which would satisfy the limitations in claims 76, 77, and 79. Applicant did not contest or rebut this assertion of official notice.
Because Hurst suggests loss of function mutants and teaches that tomatoes have two DHS genes (DHS1 and DHS2), one would have been motivated to screen for a double mutant to overcome any complementation of phenotype that may occur by retaining one homolog that remains wild type.
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 67-86 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 10,973,187 in view of Hurst et al. (US Pre-Grant Publication US 2005/0155109; published on July 14, 2005) further in view of Thompson et al. (US Patent No. 8,232,455; issued on July 31, 2012), referred to above as Thompson2. Although the claims at issue are not identical, they are not patentably distinct from each other because both claim sets are directed to the same method, generally, of mutating DHS to arrive at delayed senescence in a plant. The instant claims are broader because none of the instant claims require the precise amino acid substitutions that are required in claim 1 of the ‘187 patent; however the instant claims are also more narrow in requiring a frameshift and tissue culture of a mutant cell to regenerate a plant. Other than these small differences in scope, the claims are very similar.
As discussed, above, in the obviousness rejection over Thompson, Hurst, and Thompson2, Hurst specifically suggests introduction of frameshifts and early stop codons, Hurst specifically suggests mutation of plant cells, and Thompson2 specifically suggests tissue culture of tomato leaf explants which is culturing of plant cells. Each of these variations on the overall theme of mutating plants to generate loss of function DHS alleles is an obvious variation using techniques that are well-known and routine in the art.
Summary
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.
Examiner’s Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHY KINGDON whose telephone number is (571)272-8784. The examiner can normally be reached on M-F 9:00 - 5:30 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, Amjad A Abraham can be reached on (571) 270-7058. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
CATHY KINGDON
Primary Examiner
Art Unit 1663
/CATHY KINGDON/Primary Examiner, Art Unit 1662
Prosecution Insights