DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Claims
Claims 1-18 & 25-26 are under examination on the merits.
The objections to claims 7 & 13-16 are withdrawn in light of Applicant’s amendments.
Claim Objections
Claims 7, 13-16 & 18 are objected to because of the following informalities:
Claim 7 (line 15-17), claim 13 (lines 20-22), claim 14 (lines 21-23), claim 15 (lines 17-19), claim 16 (lines 17-19) and claim 18 (lines 3-5): “Cicer arietinum”, “Arabidopsis thaliana” and “Brachypodium distachyon” should be italicized.
Appropriate correction is required.
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.
Claim 25 is 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.
Due to Applicant' s amendment of the claims, the rejection is modified from the rejection as set forth in the Office action mailed 3/19/2026, as applied to claims 1-18. Applicant' s arguments filed 6/19/2026 have been fully considered but they are not persuasive.
Claim 25 recites the limitation "the reduced damage" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Applicant urges that amended claims are definite (Remarks filed 6/19/2026, page 11, paragraph 1).
This argument is unpersuasive, because the amendments create a new antecedent issue in claim 25.
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 & 25-26 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).
Due to Applicant' s amendment of the claims, the rejection is modified from the rejection as set forth in the Office action mailed 3/19/2026 as applied to claims 1-4, 6-10 & 12-18. Applicant' s arguments filed 6/19/2026 and 6/30/2026 have been fully considered but they are not persuasive.
Claims 1-4, 6-10, 12-18 & 25-26 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 four-fold field concentration and a transgenic plant comprising a polynucleotide sequence encoding an amino acid sequence of SEQ ID NO: 6 that has high-resistant tolerance to the herbicide demonstrated by a damage level of less than 10%.
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 teach that application of flumioxazin or another PPO-inhibitor herbicide at 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 had 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). Of the three HemG proteins assayed for PPO-inhibitor tolerance in E. coli, all three “exhibited remarkable insensitivity to PPO-inhibiting herbicides” (page 1034, right column, paragraphs 1-2). 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 post 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.
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 and instant claim 10). 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.
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 and instant claim 16 as well as a planting combination for controlling weeds comprising an herbicide containing an effective dose of a PPO inhibitor (instant claim 7). It would have been obvious that the herbicide might comprise an effective dose of a PPO inhibitor such as saflufenacil or flumioxazin at four times the field use rates, which reads on four-fold field concentration, because this is the application rate used by Larue. 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 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 is silent as to how many plants would have been recovered with <10% injury at a four-fold field concentration. Because Evdokimov teaches application of other PPO-inhibitor herbicides, such as S-1300, leading to less than 10% injury, it would have been obvious to have screened for a plant with less than 10% injury, or even no damage (instant claim 25), after exposure to a PPO-inhibitor herbicide. Furthermore, with respect to the methods of claims 1-6, 13-18 & 25-26, 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, including soybean with flumioxazin applied, which makes obvious claim 18, claim 7, claim 15, claim 16, and claim 26.
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).
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). Evdokimov teaches the application of flumioxazin to transgenic plants of soybean, and Larue teaches application of flumioxazin and saflufenacil, 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 & instant claim 12).
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; instant claim 8; instant claim 17).
Claims 1-4, 6-10, 12-18 & 25-26 are obvious over Evdokimov in view of UniProt record A0A0M9G4G3_LEPPY and Larue.
Applicant urges that Larue tried to test HemG PPO variants with whole protein sequence similarity between variants ranging from 98% to less than 50% similarity but only tested three variants, so Applicant urges that Larue fails to demonstrate that those skilled in the art would expect that any PPO protein could necessarily confer herbicide tolerance in plants. Applicant urges that such an expectation does not comply with the facts. Applicant urges that Larue acknowledged that they do not know microbial HemG PPO enzymes could function to confer herbicide tolerance in plants in advance (Remarks filed 6/19/2026, page 11, paragraphs 4-5).
This argument is unpersuasive, because obviousness does not require absolute predictability, only a reasonable expectation of success, i.e., a reasonable expectation of obtaining similar properties. See, e.g., In re O’Farrell, 853 F.2d 894, 903, 7 USPQ2d 1673, 1681 (Fed. Cir. 1988). Because Larue was published prior to the filing of the instant application, it would have been obvious to one of ordinary skill in the art, prior to the filing of the instant application, that microbial HemG PPO enzymes could function to confer herbicide tolerance in plants
Applicant urges that Larue screened 2,725 microbial HemG PPO proteins but only identified three capable of conferring herbicide tolerance in plants, so Applicant urges that one skilled in the art would not expect that any PPO protein of the thousands of candidate PPO proteins could achieve this effect nor to select the PPO protein of UniProt A0A0M9G4G3_LEPPY (Remarks filed 6/19/2026, page 11, paragraphs 6-7).
This argument is unpersuasive, because of the three HemGPPOs Larue presents PPO tolerance assay results for, all three “exhibited remarkable insensitivity to PPO-inhibiting herbicides” (page 1034, right column, paragraphs 1-2). Twenty two of the 25 HemG PPO variants originally selected were able to at least partially complement HemG function in E. coli (page 1034, left column, paragraphs 2-3). Larue teaches that the 25 out of the 2,722 HemG PPO variants selected for further consideration were selected based on criteria such as diversity of long-chain insert loops, source organism diversity, and amino acid sequence diversity; Larue does not teach that the 2,722 other microbial HemG PPO proteins considered were incapable of conferring herbicide tolerance in plants. One of ordinary skill in the art, considering the teachings of Larue, would have reasonably expected that a microbial HemG PPO enzyme has the potential to confer herbicide tolerance in plants. Obviousness does not require absolute predictability, only a reasonable expectation of success, i.e., a reasonable expectation of obtaining similar properties. See, e.g., In re O’Farrell, 853 F.2d 894, 903, 7 USPQ2d 1673, 1681 (Fed. Cir. 1988).
Applicant urges that amended claims emphasize the effective dose of a PPO-inhibitor herbicide is at four-fold field concentration and the transgenic plant exhibits high-resistant tolerance at four-fold field concentration. Applicant urges that supplementary experimental data about PPO-ECA in maize plants exposed to saflufenacil and flumioxazin demonstrate that the PPO of the instant invention has much better technical effects than PPO-ECA (Remarks filed 6/19/2026, page 12, paragraph 1-page 14, paragraph 1; Remarks filed 6/30/2026 page 10, paragraph 4-page 12, paragraph 2; Declaration, paragraphs 2-5).
This argument is unpersuasive, because although Evdokimov may be silent with respect to application of a PPO-inhibitor herbicide at four-fold field concentration leading to less than 10% injury in a transgenic plant, Larue does teach application of saflufenacil and flumioxazin at four times the field use rates, which reads on four-fold field concentration. As presented above, high-resistance tolerance reads as an intended result of the method. Regardless, application of saflufenacil or flumioxazin at 4x would have been obvious over Larue, and one of ordinary skill in the art would have been motivated to screen plants expressing HemG PPO proteins to identify a transgenic plant comprising high-resistance tolerance at less than 10% or even no 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 & 25-26 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).
Due to Applicant' s amendment of the claims, the rejection is modified from the rejection as set forth in the Office action mailed 3/19/2026, as applied to claims 1-18. Applicant' s arguments filed 6/19/2026 & 6/30/2026 have been fully considered 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 and instant claim 4) as well as encoding EPSP synthase.
Thus, the method of controlling weeds of instant claim 5 and a planting combination of instant claim 11 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 & 25-26 are obvious over Evdokimov, UniProt record A0A0M9G4G3_LEPPY, Larue, and Vande Berg.
Applicant urges that claims 5 & 11 are nonobvious due to nonobviousness of the independent claims as argued above (Remarks filed 6/19/2026, page 14, paragraph 6 & Remarks filed 6/30/2026, page 12, paragraph 3).
This argument is unpersuasive, because the independent claims are obvious over Evdokimov, UniProt record A0A0M9G4G3_LEPPY, and Larue as presented above.
Conclusion
No claims are 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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/VICTORIA L DELEO/Examiner, Art Unit 1662
/Anne Kubelik/Primary Examiner, Art Unit 1663
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