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 .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 10/20/2025 has been entered.
Status of Claims
Claims 1-18 are under examination on the merits.
The objection to claims 7 & 13-16 is withdrawn in light of Applicant’s amendments.
The rejection of claims 13 & 21 under 35 U.S.C. 112(a) as failing to comply with the written description requirement is withdrawn in light of Applicant’s amendments.
The rejection of claim 13 under 35 U.S.C. 102(a)(1) as being anticipated by Evdokimov et al US 10,370,677 B2 is withdrawn in light of Applicant’s amendments.
The rejection of claims 1-4, 6-10 & 12-24 under 35 U.S.C. 103 over Evdokimov et al US 10,370,677 B2 in view of UniProt record A0A0M9G4G3_LEPPY is withdrawn in light of Applicant’s amendments and cancelation of claims.
The rejection of claims 1-24 under 35 U.S.C. 103 over Evdokimov in view of UniProt record A0A0M9G4G3_LEPPY and in view of Vande Berg et al (2008) Pest Management Science: formerly Pesticide Science, 64(4), 340-345 is withdrawn in view of Applicant’s amendments and cancelation of claims.
Claim Objections
Claim 7 & 13-16 are objected to because of the following informalities:
Claim 7 (line 16): “;,” should read --;-- or --,--.
Claim 7 (line 16): “glyphosate- tolerant” should read --glyphosate-tolerant--.
Claim 7 (line 2, 9), claim 13 (line 2, 11), claim 14 (lines 2, 8), claim 15 (lines 2, 3, 11), and claim 16 (lines 2, 9) recite “(PPO)-inhibitor” and “PPO-inhibitor” but claim 7, lines 12, 18; claim 13, lines 5, 14, 22; claim 14, lines 11, 13, 21; claim 15, line 4, 14, 19; and claim 16, line 3, 11, 19, recite “PPO inhibitor”. Claim 1 (line 2 and 10, 11-12) Claim 6 (line 2), and claim 12 (line 2) also recite “(PPO) inhibitor” or “PPO inhibitor”. Use of the hyphen, or not, should be kept consistent across and within claims.
Appropriate correction is required.
Claim Interpretation
An “effective dose” as required by the claims has been examined as meaning as an amount ranging from 180 to 720 g ai/ha of oxyfluorfen, an amount ranging from 25 to 100 g ai/ha of saflufenacil, an amount ranging from 60 to 240 g ai/ha of flumioxazin, or an amount ranging from 450 to 900 g ai/ha of sulfentrazone, an amount ranging from 200 to 1,600 g ae/ha of glyphosate, an amount ranging from 200 to 800 g ae/ha of glufosinate, in line with the definitions in the instant specification (page 15 line 18 -page 16 line 27 & page 18 lines 12-24).
Claim 4 (line 2) and claim 10 (line 3) have been examined under the interpretation that “synthetic activity” means the protein activity results in synthesis.
Claim Rejections - 35 USC § 112
Indefiniteness
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-18 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “high-resistant tolerance” in claims 1 (line 12), 7 (line 11), 13 (line 13), 14 (line 10), 15 (line 13), and 16 (line 10) is a relative term which renders the claim indefinite. The term “high-resistance tolerance” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The specification teaches that high-resistance plants will not be affected by herbicides, which will not affect the yield of plants (page 35, lines 25-28). “Not affected by herbicides” would be reasonably interpreted to mean herbicides cause no damage to the plant. Additionally, the claims require that the plant comprise reduced plant damage of less than 10% and high-resistant tolerance (eg claim 1, lines 11-12), which suggests that these are separate and distinct limitations. Yet, the specification teaches plants with no damage and plants with up to 10% damage that are considered “highly resistant” (page 45, lines 5-16). Because the degree of tolerance required by the claims is unclear, the claims are indefinite. Dependent claims 2-6, 8-12, & 17-18 are likewise indefinite.
Claims 7 (lines 12-13), 13 (line 18), 14 (line 17), 15 (lines 15), 16 (line 15), and 18 (line 2) recite a plant or transgenic plant “comprises monocotyledonous plants and dicotyledonous plants”. A singular plant cannot comprise both a monocotyledonous plant and a dicotyledonous plant, so it is unclear whether these claims are limited to interpretations where the plant is multiple plants that are both monocotyledonous and dicotyledonous or whether the claims should be interpreted to encompass embodiments where a single plant is either monocotyledonous or dicotyledonous. Dependent claims 8, 9, 10, 11, 12 & 17 are likewise indefinite.
Claim 16 recites the limitation “the protoporphyrinogen oxidase" in line 5. There is insufficient antecedent basis for this limitation in the claim, because although there is a PPO-inhibitor herbicide, there is no specific protoporphyrinogen oxidase provided by the claim.
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 (i.e., changing from AIA to pre-AIA ) 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.
Claims 1-4, 6-10 & 12-18 are rejected under 35 U.S.C. 103 as being unpatentable over Evdokimov et al US 10,370,677 B2 (patented 8/6/2019, hereafter Evdokimov) in view of UniProt record A0A0M9G4G3_LEPPY (available online and last updated 12/9/2015) and Larue et al (2019) Pest Manag Sci; 76: 1031–1038 (published 9/10/2019, hereafter Larue).
This is a new rejection due to Applicant' s amendment of the claims filed 10/20/2025. Applicant's arguments filed 10/20/2025 have been fully considered below as they pertain to the new rejection, but they are not persuasive.
Claims 1-4, 6-10 & 12-18 are drawn to methods or a planting combination comprising application of an herbicide comprising an effective dose of an oxyfluorfen, saflufenacil, sulfentrazone, and/or flumioxazin PPO inhibitor at one to four-fold field concentration and a transgenic plant comprising a polynucleotide sequence encoding an amino acid sequence of SEQ ID NO: 6 that has a damage level of less than 10% and high-resistant tolerance to the herbicide.
For examination, the “effective dose” for each recited PPO has been taken from the specification, described in the Claim Interpretation section above. “High-resistant tolerance” is indefinite as to the degree required, but claims 1-18 have been examined under the interpretation that a damage level of less than 10% after application of a one-fold to four-fold field concentration of the PPO inhibitor would constitute “high-resistant tolerance”.
Evdokimov teaches that herbicide-insensitive protoporphyrinogen oxidases have been isolated from prokaryotes and eukaryotes (column 1, lines 58-60). Evdokimov teaches the discovery of PPO genes of the HemG family from microbial sequence databases via bioinformatics (column 14, lines 61-column 15 line 7). In addition, Evdokimov teaches a non-HemG PPO from waterhemp as a control for PPO function and herbicide-sensitivity (column 16, lines 13-18).
Evdokimov teaches an amino acid sequence (Evdokimov SEQ ID NO: 19) for a PPO with 41% identity to instant SEQ ID NO: 6. See first alignment below. Evdokimov teaches codon optimizing the proteins for E. coli expression and teaches the motivation of codon optimization to remove rare codons found in wild-type DNA sequences (column 15, lines 8-10). Evdokimov teaches that the protein of Evdokimov SEQ ID NO: 19 is H_N90 and provides dicot and monocot optimized nucleotide sequences encoding this amino acid (table 4), including Evdokimov SEQ ID NO: 54. The maize-optimized nucleotide sequence of Evdokimov SEQ ID NO: 54 has 74% identity to the maize-optimized instant SEQ ID NO: 62. See second alignment below.
US-15-224-276-19
Sequence 19, US/15224276
Publication No. US20170037427A1
GENERAL INFORMATION
APPLICANT: Monsanto Technology LLC
TITLE OF INVENTION: Methods and Compositions for Herbicide Tolerance in Plants
FILE REFERENCE: MONS:383US
CURRENT APPLICATION NUMBER: US/15/224,276
CURRENT FILING DATE: 2016-07-29
PRIOR APPLICATION NUMBER: US 62/200,428
PRIOR FILING DATE: 2015-08-03
NUMBER OF SEQ ID NOS: 63
SEQ ID NO 19
LENGTH: 172
TYPE: PRT
ORGANISM: Artificial Sequence
FEATURE:
OTHER INFORMATION: Recombinant
Query Match 41.1%; Score 494; Length 172;
Best Local Similarity 55.2%;
Matches 96; Conservative 26; Mismatches 50; Indels 2; Gaps 1;
Qy 7 KYLMLYSTTDGHTKTIMDTMAKHIMEEAKVQCDVVDMRDGDKYELAAYEKVMLGASIRYG 66
| |:|||| || | | :| : | | :|||:|: |: | |::|::|||||||
Db 1 KALVLYSTRDGQTHAIA SYIASCMKE--KAECDVIDLTHGEHVNLTQYDQVLIGASIRYG 58
Qy 67 FFSRTLHTYTTHHVDELNSMPSAFFGVNLTARKTSKNTAMTNAYTRKFLDQSMWVPQLSG 126
|: | : :||:||:|||||| ||||||| | | || | |||| : | | | |
Db 59 HFNAVLDKFIKRNVDQLNNMPSAFFCVNLTARKPEKRTPQTNPYVRKFLLATPWQPALCG 118
Qy 127 VFAGALWYPRYNFFDRVMIQFIMKVTGGETNTTKEIVYTDWDAVHKFATDFVQL 180
|||||| |||| : |:|||| ||::|||||:|:||: ||||: | ||| || :|
Db 119 VFAGALRYPRYRWIDKVMIQLIMRMTGGETDTSKEVEYTDWEQVKKFAEDFAKL 172
Evdokimov SEQ ID NO: 54 vs instant SEQ ID NO: 62
Score
Expect
Identities
Gaps
Strand
339 bits(375)
1e-96
399/540(74%)
0/540(0%)
Plus/Plus
Query 1 ATGAAGGCGCTCGTGCTCTACAGCACACGCGACGGCCAGACTCATGCGATCGCCTCTTAC 60
||||| ||| | || || ||||| ||| | || || ||||| || || || || ||
Sbjct 1 ATGAAAGCGTTGGTTCTTTACAGTACAAGAGATGGTCAGACCCACGCCATTGCGAGCTAT 60
Query 61 ATCGCGTCCTGTATGAAGGAGAAGGCCGAGTGCGACGTCATCGATCTCACGCACGGGGAG 120
||||| ||| |||||||||||| || || |||||||| |||||| ||||| | ||
Sbjct 61 ATCGCAAACTGCATGAAGGAGAAGTATGAATGTGACGTCATTGATCTCTTGCACGCGCAG 120
Query 121 CACGTGAATCTTACGCAGTACGACCAAGTGCTGATAGGCGCCTCTATCCGTTACGGCCAT 180
|| || | |||| | |||||| | || || | || || || || || || ||||||
Sbjct 121 CATGTCACCCTTAGCCGCTACGACAAGGTCCTTGTTGGGGCATCGATACGCTATGGCCAT 180
Query 181 TTTAACGCCGTCCTCGACAAATTCATCAAGCGCAATGTAGACCAGCTGAACAACATGCCC 240
|| |||||||| || |||||||| | |||| ||| || | ||||||||| ||||||
Sbjct 181 TTCAACGCCGTGCTGGACAAATTTGTTAAGCAGAATATACAACAGCTGAACTCCATGCCT 240
Query 241 TCCGCGTTCTTTTGCGTGAACCTGACGGCTCGGAAGCCTGAGAAGCGAACACCTCAGACC 300
|| || ||||| || || ||||| ||||| ||||| || || | ||||| || ||
Sbjct 241 TCTGCATTCTTCGCGGTAAATCTGACCGCTCGTAAGCCAGAAAAAAGGACACCACAAACA 300
Query 301 AACCCATACGTGCGGAAATTCCTACTCGCAACGCCATGGCAGCCCGCCCTGTGCGGGGTT 360
|| ||||||| | || ||||| || | |||||| ||| |||||||| ||||||| |||
Sbjct 301 AATTCATACGTCAGAAAGTTCCTCCTAGGAACGCCGTGGAAGCCCGCCATGTGCGGTGTT 360
Query 361 TTCGCAGGGGCGCTACGCTATCCGCGTTACCGCTGGATCGATAAGGTGATGATCCAGCTA 420
|| || || || | || || || || || || ||| | || |||||||||||||| ||
Sbjct 361 TTTGCTGGCGCCTTGCGATACCCTCGGTATCGGTGGGTGGACAAGGTGATGATCCAATTA 420
Query 421 ATAATGCGCATGACCGGCGGCGAGACAGACACATCGAAGGAAGTCGAATACACAGACTGG 480
|| ||| | ||||| || |||||||| || || || || ||||| || ||||| || |||
Sbjct 421 ATCATGAGGATGACGGGGGGCGAGACTGATACTTCTAAAGAAGTGGAGTACACTGATTGG 480
Query 481 GAACAGGTGAAGAAGTTTGCAGAGGATTTCGCCAAGCTCTCATACAAAAAGGCATTGTGA 540
|| |||||||| || ||||| ||||| |||| |||||||| ||||| ||| | |||||
Sbjct 481 GAGCAGGTGAAAAAATTTGCTGAGGACTTCGGAAAGCTCTCCTACAAGAAGACGCTGTGA 540
Evdokimov teaches transgenic maize plants expressing PPO enzymes wherein the nucleotide sequences encoding the enzymes were optimized for either dicot or monocot expression (column 19, lines 36-55). Evdokimov teaches the transgenic plants sprayed with S-3100 at V5 growth stage and V7 growth stage (column 20, lines 33-38 and column 21, lines 9-13). Evdokimov also teaches treatment of transgenic F1 plants with S-3100 in the field at 40g/ha (column 21, lines 63 - column 22 line 24). Evdokimov table 2 teaches that 1x field rate for S-3100 is between 5 and 80 g/ha, which would make the S-3100 treatment between 8x and 1/2x Evdokimov’s field rate.
Maize plants not carrying the transgene had high injury compared with plants carrying the transgene (table 7). Evdokimov teaches that the transgenic maize comprising the heterologous gene encoding a PPO enzyme had lower injury compared to non-transgenic control plants and the transgenic PPO enzymes conferred crop tolerance to a PPO herbicide (table 5, table 6, column 21, lines 45-51). Of the constructs presented in Evdokimov table 6, all but H_N110 resulted in multiple plants that were highly tolerant (less than 10% injury); H_N90 construct provided the lowest overall average injury and 44 individual plants with less than 10% damage (column 21, lines 12-26).
Evdokimov teaches transformation of soybean comprising nucleotides encoding PPO enzymes and selecting with flumioxazin at 210 g/ha (which is 3x the 1x field dose in Evdokimov table 2) by spraying, wherein the soybean plants comprising the transgene had lower injury compared to a control (column 22, lines 59-column 23 line 14). For plants carrying PPO H_N10, 9% of plants had 15% or less injury (column 23, lines 7-15).
Evdokimov teaches a transgenic plant comprising the recombinant DNA molecule with given sequence wherein protein has herbicide-insensitive protoporphyrinogen oxidase activity (Evdokimov claim 6), including wherein the transgenic plant comprises an additional transgenic herbicide tolerance trait (Evdokimov claim 7).
Evdokimov teaches PPO herbicides (table 2) including diphenylethers, N-phenylphthalimides, triazolinones, thiadiazole, and phenylpyrazoles. Evdokimov teaches that S-3100, flumioxazin, and lactofen are PPO herbicides and that that the 1x rate of flumioxazin is 70 g ai/h, the 1x rate of oxyfluorfen is 0.28-2.24 kg ai/h, the 1x rate of saflufenacil is between 25-50 g/ha (table 2), and the 1x rate of sulfentrazone is 0.1-0.42 kg ai/ha. With the exception of sulfentrazone, these rates overlap with the definitions of an effective dose provided by the instant specification (page 15 line 18 -page 16 line 27 & page 18 lines 12-24).
Evdokimov teaches a method for conferring herbicide tolerance to a plant comprising heterologously expressing in said plant the recombinant DNA molecule (Evdokimov claim 10) and furthermore that the herbicide tolerance is to a PPO herbicide such as those provided in table 2 (Evdokimov claim 11, table 2).
Evdokimov teaches a method of plant transformation comprising introducing the recombinant DNA molecule into a plant cell, regenerating a plant comprising the DNA molecule, and selecting a plant that is tolerant to at least one PPO herbicide (Evdokimov claims 13/12).
Evdokimov teaches a method for controlling weeds in a plant growth area comprising contacting a plant growth area comprising the transgenic plant with at least one PPO herbicide wherein the transgenic plant or seed is tolerant to the PPO herbicide and wherein weeds are controlled in the plant growth area (Evdokimov claim 15).
Evdokimov teaches a method for reducing the development of herbicide tolerant weeds comprising cultivating a plant that comprises an additional transgenic herbicide tolerance trait (Evdokimov claim 7) and applying PPO herbicide and at least one other herbicide to the growing environment, wherein crop plant is tolerant to PPO herbicide and the other herbicide (Evdokimov claim 17) and teaches that the other herbicide could be an ACCase inhibitor, ALS inhibitor, EPSPS inhibitor, synthetic auxin, photosynthesis inhibitor, glutamine synthesis inhibitor, HPPD inhibitor, PPO inhibitor, or long-chain fatty acid inhibitor (Evdokimov claim 19) or specifically glufosinate, sulfonylurea, glyphosate, phenoxy herbicide, or another herbicide (Evdokimov claim 20).
Finally, Evdokimov teaches a motivation to find additional herbicide tolerance traits in order to avoid resistance in weed species, and that PPO herbicides are effective against a spectrum of herbicide-resistant weeds (column 1, lines 35-44). Evdokimov teaches gene expression elements useful in practicing the invention include selectable marker transgenes (column 8, lines 28-33).
Evdokimov does not teach an amino acid sequence with 99% sequence identity to instant SEQ ID NO: 6. Evdokimov does not teach that the polynucleotide sequence encoding the PPO has the sequence of instant SEQ ID NOs: 29-42 or 62-64. Evdokimov does not teach that the second polynucleotide encoding the second herbicide-tolerant protein encodes a selectable marker protein or encodes a second herbicide resistance protein such as 5-enolpyruvylshikimate-3-phosphate (ESP) synthase. Evdokimov does not explicitly teach that application of flumioxazin at rates between 1-4x field concentration would result in a damage level of less than 10% in the transgenic plants (rather than less than 15% injury at 3x field concentration).
UniProt record A0A0M9G4G3_LEPPY teaches a protoporphyrinogen oxidase-like protein with 100% sequence identity to instant SEQ ID NO: 6 annotated to belong to the HemG family by InterPro and HAMAP and annotated as a protoporphyrinogen IX dehydrogenase in PANTHER. See alignment below.
A0A0M9G4G3_LEPPY
ID A0A0M9G4G3_LEPPY Unreviewed; 231 AA.
AC A0A0M9G4G3;
DT 09-DEC-2015, integrated into UniProtKB/TrEMBL.
DT 09-DEC-2015, sequence version 1.
DT 27-MAR-2024, entry version 19.
DE SubName: Full=Protoporphyrinogen oxidase-like protein {ECO:0000313|EMBL:KPA81929.1};
GN ORFNames=ABB37_04166 {ECO:0000313|EMBL:KPA81929.1};
OS Leptomonas pyrrhocoris (Firebug parasite).
OC Eukaryota; Discoba; Euglenozoa; Kinetoplastea; Metakinetoplastina;
OC Trypanosomatida; Trypanosomatidae; Leishmaniinae; Leptomonas.
OX NCBI_TaxID=157538 {ECO:0000313|EMBL:KPA81929.1, ECO:0000313|Proteomes:UP000037923};
RN [1] {ECO:0000313|EMBL:KPA81929.1, ECO:0000313|Proteomes:UP000037923}
RP NUCLEOTIDE SEQUENCE [LARGE SCALE GENOMIC DNA].
RC STRAIN=H10 {ECO:0000313|EMBL:KPA81929.1};
RA Flegontov P., Butenko A., Firsov S., Vlcek C., Logacheva M.D., Field M.,
RA Filatov D., Flegontova O., Gerasimov E., Jackson A.P., Kelly S.,
RA Opperdoes F., O'Reilly A., Votypka J., Yurchenko V., Lukes J.;
RT "High-quality genome of monoxenous trypanosomatid Leptomonas pyrrhocoris.";
RL Submitted (JUL-2015) to the EMBL/GenBank/DDBJ databases.
CC -!- CAUTION: The sequence shown here is derived from an EMBL/GenBank/DDBJ
CC whole genome shotgun (WGS) entry which is preliminary data.
CC {ECO:0000313|EMBL:KPA81929.1}.
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DR EMBL; LGTL01000006; KPA81928.1; -; Genomic_DNA.
DR EMBL; LGTL01000006; KPA81929.1; -; Genomic_DNA.
DR RefSeq; XP_015660367.1; XM_015801747.1.
DR RefSeq; XP_015660368.1; XM_015801748.1.
DR AlphaFoldDB; A0A0M9G4G3; -.
DR EnsemblProtists; KPA81928; KPA81928; ABB37_04166.
DR EnsemblProtists; KPA81929; KPA81929; ABB37_04166.
DR GeneID; 26904457; -.
DR VEuPathDB; TriTrypDB:LpyrH10_06_5360; -.
DR OMA; IEYTDWE; -.
DR OrthoDB; 160446at2759; -.
DR Proteomes; UP000037923; Unassembled WGS sequence.
DR GO; GO:0016020; C:membrane; IEA:UniProtKB-KW.
DR GO; GO:0010181; F:FMN binding; IEA:InterPro.
DR GO; GO:0070819; F:menaquinone-dependent protoporphyrinogen oxidase activity; IEA:InterPro.
DR GO; GO:0004729; F:oxygen-dependent protoporphyrinogen oxidase activity; IEA:InterPro.
DR GO; GO:0006782; P:protoporphyrinogen IX biosynthetic process; IEA:InterPro.
DR Gene3D; 3.40.50.360; -; 1.
DR HAMAP; MF_00853; HemG; 1.
DR InterPro; IPR026816; Flavodoxin_dom.
DR InterPro; IPR029039; Flavoprotein-like_sf.
DR InterPro; IPR044264; HemG.
DR PANTHER; PTHR38030; PROTOPORPHYRINOGEN IX DEHYDROGENASE [MENAQUINONE]; 1.
DR PANTHER; PTHR38030:SF2; PROTOPORPHYRINOGEN IX DEHYDROGENASE [QUINONE]; 1.
DR Pfam; PF12724; Flavodoxin_5; 1.
DR SUPFAM; SSF52218; Flavoproteins; 1.
PE 3: Inferred from homology;
KW Flavoprotein {ECO:0000256|ARBA:ARBA00022630};
KW FMN {ECO:0000256|ARBA:ARBA00022643}; Membrane {ECO:0000256|SAM:Phobius};
KW Oxidoreductase {ECO:0000256|ARBA:ARBA00023002};
KW Porphyrin biosynthesis {ECO:0000256|ARBA:ARBA00023244};
KW Reference proteome {ECO:0000313|Proteomes:UP000037923};
KW Transmembrane {ECO:0000256|SAM:Phobius};
KW Transmembrane helix {ECO:0000256|SAM:Phobius}.
FT TRANSMEM 208..226
FT /note="Helical"
FT /evidence="ECO:0000256|SAM:Phobius"
FT DOMAIN 9..158
FT /note="Flavodoxin"
FT /evidence="ECO:0000259|Pfam:PF12724"
SQ SEQUENCE 231 AA; 25928 MW; 750F27418AB5DDE7 CRC64;
Query Match 100.0%; Score 1202; Length 231;
Best Local Similarity 100.0%;
Matches 231; Conservative 0; Mismatches 0; Indels 0; Gaps 0;
Qy 1 MSSPNGKYLMLYSTTDGHTKTIMDTMAKHIMEEAKVQCDVVDMRDGDKYELAAYEKVMLG 60
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 1 MSSPNGKYLMLYSTTDGHTKTIMDTMAKHIMEEAKVQCDVVDMRDGDKYELAAYEKVMLG 60
Qy 61 ASIRYGFFSRTLHTYTTHHVDELNSMPSAFFGVNLTARKTSKNTAMTNAYTRKFLDQSMW 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 61 ASIRYGFFSRTLHTYTTHHVDELNSMPSAFFGVNLTARKTSKNTAMTNAYTRKFLDQSMW 120
Qy 121 VPQLSGVFAGALWYPRYNFFDRVMIQFIMKVTGGETNTTKEIVYTDWDAVHKFATDFVQL 180
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 121 VPQLSGVFAGALWYPRYNFFDRVMIQFIMKVTGGETNTTKEIVYTDWDAVHKFATDFVQL 180
Qy 181 PATAIPRSKPATSVPPASVANYDNGARVALVVVGISAAIIFGRRLILAKRF 231
|||||||||||||||||||||||||||||||||||||||||||||||||||
Db 181 PATAIPRSKPATSVPPASVANYDNGARVALVVVGISAAIIFGRRLILAKRF 231
Larue also teaches a method to screen for HemG PPO variants from microbial sequence information as candidates for building a plant herbicide tolerance trait and specifies selecting variants that represented diversity in sequence and source organism. Some candidate HemG variants less than 50% sequence similarity to the E. coli HemG protein sequence (page 1032, left column, paragraph 3-4). Of the 25 tested variants, 22 were able to at least partially complement E. coli HemG (page 1034, left column, paragraph 3). Larue teaches that PPO-inhibiting herbicide tolerance would be useful in agricultural weed control applications (page 1031, right column paragraph 2-page 1032, left column, paragraph 1).
Larue teaches maize, soybean, cotton, and canola transgenic plants expressing the HemG PPO variants screened for tolerance to PPO-inhibiting herbicides. The HemG PPO genes are codon optimized for plant expression and driven by plant expression vectors (page 1033, left column, paragraph 2). The transgenic maize plants were grown and flumioxazin was applied at 420 g/ha and saflufenacil was applied at 400 g/ha, which Larue states is four times the field use rates (page 1033, left column, paragraph 2). Despite application of saflufenacil and pre emergence application of flumioxazin, transgenic plants were observed with less than 10% injury; saflufenacil injury rates were close to 0% (Figure 3c). Control plants had injury greater than 10% for pre-emergence flumioxazin and poster emergence saflufenacil.
Transgenic soybean were grown in field and treated with 210 g/ha of flumioxazin (page 1033, right column, paragraph 2), where low injury was observed in transgenic plants (page 1037, left column, paragraph 1).
Larue teaches that PPO-inhibiting herbicide tolerance trait should be used as a component of a complete weed control system, such as multi-modes of action for herbicides, because weeds with resistance to PPO-inhibiting herbicides already exist (page 1037, left column, paragraph 4).
Before the time of filing of the instant application, it would have been obvious to one of ordinary skill in the art to modify the methods taught by Evdokimov to substitute the HemG PPO protein of Evdokimov with the sequence for a HemG-family PPO protein taught by UniProt record A0A0M9G4G3_LEPPY. Replacing the HemG PPO protein sequence taught by Evdokimov with the HemG-family PPO sequence taught by UniProt record A0A0M9G4G3_LEPPY would have been reasonable substitution motivated by Larue’s teaching of selecting highly diverse HemG protein sequences to assay. Additionally, Evdokimov taught a motivation to identify new herbicide resistance proteins to PPO herbicides to reduce tolerance evolution in weeds, so one would have been motivated to try expressing additional, diverse known PPO proteins in plants. One of ordinary skill in the art would have been reasonably confident of success because searching for HemG PPO proteins with less than 50% sequence identity to known HemG proteins in microbial sequence databases, and screening said sequences in plants to identify those with acceptable tolerance, was practiced in the art prior to the filing of the instant application.
Regarding claims 1, 7, 16, & 18, Evdokimov’s method for controlling weeds in a plant growth area comprising contacting area comprising the transgenic plant with at least one PPO herbicide wherein the transgenic plant or seed is tolerant to the PPO herbicide and wherein weeds are controlled in the plant growth area (Evdokimov claim 15) reads on a method of instant claim 1, lines 1-3, and instant claim 16 lines 13-15) as well as a planting combination for controlling weeds comprising an herbicide containing an effective dose of a PPO inhibitor (instant claim 7, line 2). It would have been obvious that the herbicide might comprise an effective dose of a PPO inhibitor such as flumioxazin at one- to four-fold field concentration, because Evdokimov teaches a method of applying 210 g/ha (which is 3x the field dose in Evdokimov table 2) and also falls within 60 to 240 g ai/ha, which the instant specification defines as an effective dose of flumioxazin.
UniProt record A0A0M9G4G3_LEPPY reads on the amino acid sequence with at least 99% sequence identity to instant SEQ ID NO: 6.
Evdokimov teaches this method in a field (column 21, lines 63 - column 22 line 24) and in a transgenic plant comprising a polynucleotide sequence encoding a PPO wherein the transgenic plant has reduced damage compared to other plants without the polynucleotide sequence encoding the PPO. Evdokimov reports that transgenic plants were recovered that had high resistance, although Evdokimov measured high tolerance to 3x field dose of flumioxazin as 15% or less injury and is silent as to how many plants would have been recovered with <10% injury. Evdokimov teaches application of other PPO-inhibitor herbicides, such as S-1300, leading to less than 10% injury, so it would have been obvious to have screened for a plant with less than 10% injury after exposure to flumioxazin and it would also have been obvious to one of ordinary skill in the art that applying a lesser dose of flumioxazin, including within the range of the instant claims, could have resulted in plants with less damage.
Furthermore, with respect to the methods of claims 1-6 & 13-18, the plant having a reduced damage or increased plant yield, including a damage level of less than 10%, reads as an intended result of the actively recited steps, not an active step in the method.
Evdokimov teaches a method comprising these steps in corn, cotton, and soybean, which reads on claim 18 (lines 1-5), claim 7 (lines 13-15), claim 15 (lines 15-18), and claim 16 (lines 15-18).
Evdokimov’s method of plant transformation comprising introducing the recombinant DNA molecule into a plant cell, regenerating a plant comprising the DNA molecule, and selecting a plant that is tolerant to at least one PPO herbicide (Evdokimov claims 13/12) clearly reads on a method for generating a plant which is tolerant to a PPO-inhibitor herbicide comprising introducing a polynucleotide sequence encoding a PPO into the genome of the plant (instant claim 13, lines 1-3).
Plants comprising unique transformation events were recovered by Evdokimov, which reads on the polynucleotide introduced into the genome of the plant. Evdokimov teaches this method with a polynucleotide sequence encoding a PPO, which would have been obvious to substitute for a polynucleotide encoding an amino acid with the sequence UniProt record A0A0M9G4G3_LEPPY as presented above. This reads on an amino acid sequence at least 99% sequence identity to instant SEQ ID NO: 6 (see alignment above) and a method wherein an effective dose of a PPO inhibitor is applied where a plant is present and the plant has reduced damage compared to control. That the plant has reduced plant damage or increased yield when the herbicide containing an effective dose of a PPO inhibitor is applied to a field where the plant is present recites an intended result of the method and is not a separate step in the method of instant claim 13. Evdokimov teaches the application of flumioxazin to transgenic plants of soybean, so it would have been obvious to substitute the PPO inhibitor herbicide flumioxazin for the PPO inhibitor S-3100 used in screening of the maize transformants, based on simple substitution of one known element for another to obtain predictable results. Thus, instant claim 13 is obvious.
Regarding claim 15, Evdokimov’s method of cultivating transgenic F1 maize reads on a method for protecting a plant from damages caused by a PPO-inhibitor herbicide comprising applying an effective dose of a PPO inhibitor to a field where at least one transgenic plant is present comprising in its genome a polynucleotide encoding a PPO with at least 99% sequence identity to the amino acid sequence of instant SEQ ID NO: 6 and the transgenic plant has reduced plant damage compared with other plants without the polynucleotide sequence (instant claim 15, lines 1-10). Evdokimov teaches the application of flumioxazin to transgenic plants of soybean, so it would have been obvious to substitute the PPO inhibitor herbicide flumioxazin for the PPO inhibitor S-3100 used in screening of the maize transformants, based on simple substitution of one known element for another to obtain predictable results.
Regarding claims 3, 6, 9 & 12, Evdokimov’s method for reducing the development of herbicide tolerant weeds comprising cultivating a plant that comprises an additional transgenic herbicide tolerance trait (Evdokimov claim 7) and applying PPO herbicide and at least one other herbicide to the growing environment (Evdokimov claim 17, line 5-8) such as a synthetic auxin (Evdokimov claim 19 line 4) reads on a method for controlling weeds wherein the transgenic plant comprises at least one second polynucleotide encoding a second herbicide-tolerant protein which is different from the polynucleotide encoding the PPO (instant claim 3, lines 1-4) and a planting combination for controlling the growth of weeds wherein the transgenic plant further comprises at least one second polynucleotide encoding a second herbicide-tolerant protein different from the polynucleotide encoding the PPO (instant claim 9, lines 1-4). In addition, Evdokimov’s method of claim 19 reads on a method and planting combination for controlling weeds characterized in that the herbicide containing an effective dose of a PPO inhibitor further includes an auxin-like herbicide (instant claim 6, lines 1-4 & instant claim 12, lines 1-4).
Before the time of filing of the instant application, it would have been obvious to one of ordinary skill in the art to modify the method taught by Evdokimov to recover F1 seed, plant transgenic F1 seeds in the field, and spray the plants to further include a step wherein the plants are harvested (as in instant claim 14). The rationale for adding a step to harvest the transgenic plant would be combining prior art elements according to known methods to yield predictable results. Maize plants are generally grown to harvest, and one of ordinary skill in the art would have reasonable expectation of success of including the harvest step because most methods of cultivating a maize plant include a step of harvesting the plant (see for example, Evdokimov claim 14 where seed from a cross is collected, which reads on harvested). Thus, Evdokimov’s method of cultivating transgenic maize, in view of the amino acid sequence of UniProt record A0A0M9G4G3_LEPPY, reads on a method of instant claim 14, including allowing the propagule to grow into a plant and applying the herbicide comprising an effective dose of a PPO inhibitor. Evdokimov teaches the application of flumioxazin to transgenic plants of soybean, so it would have been obvious to substitute the PPO inhibitor herbicide flumioxazin for the PPO inhibitor S-3100 used in the cultivation of the maize transformants, based on simple substitution of one known element for another to obtain predictable results.
Before the time of filing of the instant application, it would have also been obvious to one of ordinary skill in the art to modify the teachings of Evdokimov in view of UniProt record A0A0M9G4G3_LEPPY to substitute the transgenic plant taught by Evdokimov comprising a second herbicide-tolerant protein (Ekdokimov claim 7) with a transgenic plant wherein the second polynucleotide encodes a selectable marker protein (instant claim 4, lines 1-2 and instant claim 10, lines 1-2). Although Evdokimov is silent as to whether or not the transgenic plants of Evdokimov claim 7 or (column 20, lines 33-38 and column 21, lines 9-13) comprise a selectable marker, Evdokimov teaches that selectable marker transgenes are useful for practicing the invention (column 8, lines 28-33). Substituting a transgenic plant for one comprising an additional selectable marker would constitute combining prior art elements according to known methods to yield predictable results. One of ordinary skill in the art would have reasonable expectation of success, because selectable markers were routinely used in the creation of transgenic plants at the time of filing. Thus, claims 4 & 10 would have been obvious over Evdokimov in view of UniProt record A0A0M9G4G3_LEPPY and Larue.
Before the filing date of the instant application, it would have been obvious to one of ordinary skill in the art to substitute the polynucleotide sequence of Evdokimov SEQ ID NO: 54 that has 74% identity to instant SEQ ID NO: 62 (see alignment above) and encodes a HemG PPO protein with a polynucleotide sequence with a sequence identity identical to instant SEQ ID NO: 62. One would have been motivated to substitute a polynucleotide from a microbe encoding the amino acid of UniProt record A0A0M9G4G3_LEPPY for one with 100% identity to instant SEQ ID NO: 62 because Evdokimov teaches that codon optimization removes rare codons found in wild-type DNA sequences (column 15, lines 8-10). Evdokimov teaches dicot and monocot codon-optimized sequences for HemG PPO proteins (table 4). One of ordinary skill in the art would have had reasonable expectation of success using a codon-optimized sequenced identical to instant SEQ ID NO: 62, because codon optimization was routine in the art and silent mutations to the nucleotide sequence would result in an amino acid sequence identical to the PPO protein and thus not affect protein activity.
Regarding claims 2, 8 & 17, Evdokimov’s method of controlling weeds in view of UniProt record A0A0M9G4G3_LEPPY and in view of codon optimization (Evdokimov column 15, lines 8-10 and table 4) makes obvious a method for controlling weeds, a planting combination, and a method for conferring tolerance to a PPO-inhibitor comprising a transgenic plant wherein the polynucleotide sequence of the PPO comprises a polynucleotide sequence shown in SEQ ID NO: 62 (instant claim 2, lines 1-3, 7-8; instant claim 8, lines 1-3 & 7-8; instant claim 17, lines 2-4 & 8-9).
Claims 1-4, 6-10 & 12-18 are obvious over Evdokimov in view of UniProt record A0A0M9G4G3_LEPPY and Larue.
Applicant urges that the A0A0M9G4G3_LEPPY UniProt record mentions HemG only in the “Family and domain databases” section, which references protein families including flavodoxin, flavoprotein-like, and protoporphyrinogen IX in addition to HemG. Applicant urges that the cited reference does not support the identity of the sequence as a HemG PPO protein and no evidence of PPO activity is evident in the cited reference. Applicant further urges that the prokaryotic HemG PPO protein sequence taught by Evdokimov is not analogous to the purported prokaryotic HemG PPO sequence taught by UniProt record A0A0M9G4G3_LEPPY because Applicant urges that the UniProt record does not support the idea that the record discloses a HemG protein, or a PPO protein, and further the protein is not a prokaryotic protein. Applicant urges that the rejection is defective since UniProt record A0A0M9G4G3_LEPPY does not show what it is asserted to show and there would be no motivation to combine UniProt record A0A0M9G4G3_LEPPY and Evdokimov (Remarks page 11, paragraph 2- page 12, paragraph 1).
This argument is unpersuasive; first, one of skill in the art before the filing of the instant application would have understood the annotation of the protein sequence in A0A0M9G4G3_LEPPY as a protoporphyrinogen oxidase-like protein to suggest PPO activity. The Gene Ontology annotations list two suggested molecular functions of protoporphyrinogen oxidase (PPO) activity and a biological process annotation as protoporphyrinogen IX biosynthetic process. The annotations in the provided UniProt listing referenced by Applicant would not contradict that the sequence of A0A0M9G4G3_LEPPY is a functional PPO. One of skill in the art would have had reasonable expectation that the sequence annotated as PPO-like and having PPO functional domains would have PPO activity.
Second, while it is true that Leptomonas pyrrhocoris is eukaryotic, HemG proteins were known to be found in some eukaryotic organisms prior to the filing of the instant application, including in Leptomonas pyrrhocoris (Cenci et al (2016) BMC Evolutionary Biology. 16:109 published 5/8/2016; table 1). The annotations of A0A0M9G4G3_LEPPY as a microbial HemG protein, if not a prokaryotic HemG protein, would have suggested to one of skill in the art that A0A0M9G4G3_LEPPY had similarities to a functional HemG protein that would make it a reasonable substitution for one of skill in the art. The rejection above has been modified to clarify that the substitution would be obvious based on the annotation as a HemG rather than an identity as a prokaryotic protein.
Third, one of ordinary skill in the art would have been motivated to screen databases for highly diverse PPO proteins to use in transgenic plants for PPO-inhibitor resistance. See Larue teachings, above. Thus, one of skill in the art would have had a motivation to screen for a protein annotated as PPO-like and belonging to a HemG family to use in PPO-inhibitor resistant plants as presented above.
Applicant urges that the methods of the present disclosure provide unexpected results. Applicant urges a “reference-based logical relationship” exists because H_N10 of Evdokimov and instant SEQ ID NO: 43 are identical. Applicant urges that table 6 of Evdokimov demonstrates that 1x commercial application rate of S-3100 herbicide led to an average damage rate of 39.5% on corn carrying H_N10, and that this demonstrates that H_N10 provides nearly the best results disclosed in Evdokimov. Applicant urges that in contrast, transgenic plants carrying the PPO6 protein had no damage, while plants carrying the identical protein to H_N10 had obvious damage in instant table 5. Applicant urges that based on “reference-based logical relationship”, the tolerance of the PPO6 protein in this application is superior to that of the H_N10 PPO protein or another protein in Evdokimov and therefore unexpected (Remarks, page 12, paragraph 3-page 14, paragraph 1).
This is unpersuasive, because the Table 6 results of Evdokimov present the herbicide tolerance results of treatment with S-3100 in maize. The instant table 5 results depict the herbicide tolerance results of treatment with saflufenacil in soybean. These are not directly comparable experiments. The instant specification discloses tables 8-10 teaching the tolerance of transgenic maize plants treated with saflufenacil, oxyfluorofen, flumioxazin, but no comparison to instant PPO-EC is provided in these tables.
In contrast, Evdokimov does teach the performance of soybean carrying H_N10 treated with flumioxazin (column 22, line 59-column 23, line 15), where plants had an average injury rating of 22% and 9% of plants were highly tolerant to the herbicide. Instant table 7 provides a comparison, demonstrating the flumioxazin tolerance of transgenic soybean plants, including transgenic plants carrying PPO-ECA. However, Applicant discloses that PPO-ECA and PPO6A both “exhibited high-resistant tolerance to flumioxazin at different concentrations” (instant specification, page 67, lines 1-5). Thus, Applicant’s own disclosure suggests that the results of PPO6A are not unexpectedly greater than those of a PPO construct taught by Evdokimov when tested side by side in a comparable use case and does not support a finding of non-obviousness.
In addition, Evdokimov is silent as to how many plants had less than 10% damage (rather than less than 15% damage) after flumioxazin treatment at higher than field application rates, so this limitation is not itself non-obvious. One of skill in the art would have expected that reducing the application of flumioxazin to 1x field application, as allowed by the claims, would have increased the number of plants with less severe damage.
Applicant urges, as described in the Xiao declaration under 1.132, the PPO6 protein shared just 47-55% identity with the 10 PPO proteins of Evdokimov. Applicant urges that 47-55% identity is significant genetic divergence and one of skill in the art would understand that substantial differences in amino acid sequence would typically result in variations in properties such as activity. Applicant urges that one of skill in the art would “know” that the effect of a very large difference in amino acid sequence identity on protein function activity cannot be predicted and there would be no motivation to substitute the sequences of Evdokimov with the sequence of A0A0M9G4G3_LEPPY. Applicant urges that one of skill in the art would instead select PPO proteins with a higher identity such as at least 99% identity (Remarks, page 15, paragraph 1-4).
This argument is unpersuasive, because Larue teaches testing PPO proteins with higher sequence diversity, even less than 50% sequence identity, in order to discover PPO proteins with PPO-inhibitor resistance. Larue therefore demonstrates that PPO proteins with high sequence divergence were reasonably expected by one of skill in the art to confer PPO-inhibitor resistance prior to the instant filing date.
Applicant urges that there would be no reasonable expectation of success to achieve the unexpected superior results by substituting A0A0M9G4G3_LEPPY without hindsight reconstruction. Applicant urges that even among PPO proteins of the instant application, the effects differ significantly. Applicant urges that those skilled in the art would not expect that arbitrarily interchanging any two PPO proteins would yield similar results. Instead, one of skill in the art might expect that PPO proteins in general would confer herbicide resistance but would differ significantly and could not be predicted in advance when amino acid sequences are greatly different. Applicant urges that obviousness requires a reasonable expectation of success in combining or modifying prior art disclosures to meet limitations and urges that significant difference in amino acid sequence identity would make it impossible to predict the resultant effect through simple substitution of Evdokimov proteins with A0A0M9G4G3_LEPPY and no reasonable expectation of success would be possible (Remarks, page 16, paragraphs 1-3).
This argument is unpersuasive, because before the time of filing of the instant application persons of skill in the art were using bioinformatics tools to identify proteins with less than 50% identity to known PPO proteins and testing these proteins for PPO activity. Because testing known PPO proteins from various species for PPO-inhibitor resistance activity in transgenic plants was already practiced by others of ordinary skill in the art, one of skill in the art would not have required a high likelihood of success with the specific protein of A0A0M9G4G3_LEPPY in order to have searched a sequence database, identified this sequence and possibly others as putative targets, and assayed the protein(s) in a plant. Hindsight reasoning is not required for the obviousness of this application, because bioinformatic screens had led persons of ordinary skill in the art to test comparably divergent proteins prior to the instant filing.
Applicant urges that “effective dose” of S-3100 and lactofen are known in the art because Larue teaches a commercial application rate for S-3100 and Randell-Singleton teaches a field use rate of lactofen. In view of disclosed commercial application rates, Applicant submits that the present claims demonstrate unexpectedly beneficial results (Remarks, page 17, paragraphs 1-7).
This argument is unpersuasive, first because the amended claims do not recite S-3100 or lactofen. Second, Larue and Randell-Singleton are silent with regard to the claimed sequence in response to these herbicides, so they do not demonstrate an unexpected beneficial result of the instant SEQ ID NO: 6. Third, neither Larue nor Randell-Singleton have been listed in any of Applicant’s filed IDS and so the information provided by Randell-Singleton at least will not be considered.
Applicant urges that Evdokimov teaches that transgenic plants containing PPO protein still exhibit damage rages of >20% under low herbicide application concentration, which Applicant urges shows that PPO proteins cannot provide good high-performance protection for transgenic plants in contrast with the results of the instant application (Remarks page 18, paragraph 1-3).
This argument is unpersuasive, because Evdokimov explicitly teaches multiple individual plants carrying the transgene for a PPO protein with less than 15% injury after application of a PPO-inhibitor herbicide within a range allowed by the amended claims. Evdokimov is silent as to how many plants had less than 10% damage (rather than less than 15% damage) after flumioxazin treatment at higher than field application rates, but this does not make the results of the instant application unexpected. One of skill in the art would have expected that reducing the application of flumioxazin within the range allowed by the claims would have increased the number of plants with less severe damage and one of skill would have been motivated to screen for plants with less damage.
Claims 5 & 11 are rejected under 35 U.S.C. 103 as being unpatentable over Evdokimov in view of UniProt record A0A0M9G4G3_LEPPY and Larue as applied to claims 1-4, 6-10 & 12-18 above, and further in view of Vande Berg et al (2008) Pest Management Science: formerly Pesticide Science, 64(4), 340-345 (published online 1/2/2008, hereafter Vande Berg).
This is a new rejection due to Applicant' s amendment of the claims filed 10/25/2025. Applicant's arguments filed 10/25/2025 have been fully considered below to the extent they pertain to the new rejection, but they are not persuasive.
Claims 5 & 11 are drawn to a method or planting combination for controlling weeds comprising applying an herbicide containing a PPO inhibitor to a field where a transgenic plant is present, wherein the transgenic plant further comprises a second polynucleotide encoding a second herbicide tolerant protein.
The teachings of Evdokimov, UniProt record A0A0M9G4G3_LEPPY, and Larue are presented above and incorporated herein. They do not teach a method for controlling weeds or a planting combination wherein the transgenic plant comprises a second polynucleotide encoding a 5-enolpyruvylshikimate-3-phosphate synthase.
Vande Berg teaches that transforming plant cells to express glyphosate-resistant bacterial 5-enolpyruvylshikimate-3-phosphate (EPSP) synthases produces plants resistant to glyphosate toxicity (page 340, right column, paragraph 2). Vande Berg teaches a bacterial EPSP synthase gene (page 340, right column, paragraph 3). Vande Berg teaches a cassette comprising the gene introduced into Agrobacterium and then selected on agar media containing spectinomycin, tetracycline, streptomycin and rifampicin (page 341, right column, paragraph 4). Vande Berg teaches maize plants transformed with the gene did not exhibit damage when sprayed with glyphosate (page 341, right column, paragraph 4-page 341, left column, paragraph 1). Vande Berg teaches a motivation to transform maize plants with the EPSP synthase gene, to provide a weed control solution for these crops, and teaches that stacking this trait with traits such as insect resistance, drought tolerance or yield improvements would be desirable for growers (page 344, left column, paragraph 1).
Before the time of filing of the instant application, it would have been obvious to one of ordinary skill in the art to modify the method of Evdokimov comprising applying a PPO herbicide and glyphosate to a transgenic crop plant tolerant to the PPO herbicide and glyphosate in order to incorporate within the plant a second polynucleotide encoding the bacterial EPSP synthase gene taught by Vande Berg. The rationale for combining the polynucleotide encoding EPSP synthase with the transgenic plant comprising a polynucleotide encoding a PPO-resistance protein would be combining prior art elements according to known methods to yield predictable results. One would have had reasonable expectation of success because EPSP synthase was known at the time of filing to confer glyphosate resistance, and combining of herbicide traits was routine and motivated in order to mitigate resistance in weeds.
In addition, the genetic construct encoding the EPSP synthase taught by Vande Berg comprises resistance genes allowing for Agrobacterium containing the cassette to be selected on media containing spectinomycin, tetracycline, streptomycin and rifampicin, which reads on the second polynucleotide encoding a selectable marker protein (instant claim 10, line 2 and instant claim 4, line 2) as well as encoding EPSP synthase.
Thus, the method of controlling weeds of instant claim 5 (line 2) and a planting combination of instant claim 11 (lines 2-3) wherein the second polynucleotide in the transgenic plant encodes 5-enolpyruvylshikimate-3-phosphate synthase, is obvious over Evdokimov in view of UniProt record A0A0M9G4G3_LEPPY, Larue and Vande Berg.
Claims 1-18 are obvious over Evdokimov, UniProt record A0A0M9G4G3_LEPPY, Larue, and Vande Berg.
Applicant urges that the independent claims are nonobvious and therefore dependent claims 5 & 11 are likewise nonobvious (Remarks, page 18, paragraph7).
This argument is unpersuasive, because the independent claims are not nonobvious, for the reasons presented above.
Conclusion
No claims are allowed.
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/VICTORIA L DELEO/Examiner, Art Unit 1662
/Anne Kubelik/Primary Examiner, Art Unit 1663