DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims Status
The Office acknowledges the receipt of Applicant’s amendment filed June 25, 2026. Claims 1, 3, 5, 7, 14, 18-19, 69, 72, 76-77, 83, 85-87 and 104 are pending. Claims 69, 72, 76-77, 83 and 86-87 are withdrawn. Claims 1, 3, 5, 7, 14, 18-19, 85 and 104, to the extent of SEQ ID NOs: 90-98, 112, 114, 136 and 137, are examined in the instant application.
All previous rejections not set forth below have been withdrawn.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Priority
This application is claiming the benefit of Application No. 63/297,070 filed January 06, 2022. However, the elected SEQ ID Nos. 90-98, 112, 114, 136 and 137 were first disclosed in PCT/US2023/060136. Accordingly, Applicant’s earliest priority benefit for the currently examined claims is January 5, 2023.
Claim Objections
Claims 1, 3, 5, 7, 14, 18-19, 85 and 104 are objected to because of the following.
In claims 1 and 85, it is suggested the “and wherein” clause with regard to the phenotypes be written as a separate paragraph to indicate that said clause is applicable to all recited embodiments. It is currently written as if it is applicable only to the (ii) embodiment.
Dependent claims are included.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
Claims 1, 3, 5, 7, 14, 18-19, 85 and 104 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.
In claims 1 and 85, the metes and bounds of “about 2000” and “about 2465” are unclear. It is unclear what positions of SEQ ID NO:112 are encompassed by “about nucleotide 200 to about nucleotide 2465”. The term “about” is not clearly defined in Applicant’s disclosure.
In claim 1(b) and 85(c), it is unclear what positions of SEQ ID NO:112 encodes SEQ ID NO:114. It is further unclear what region of SEQ ID NO:114 is encoded by SEQ ID Nos. 90-98.
In claim 18(a), the claim recites “two or more endogenous GL2 genes”. Applicant’s elected sequence is SEQ ID NO:112. It is unclear whether the “two or more” GL2 genes have at least 80% sequence identity to SEQ ID NO:112, or the claim further encompasses a non-elected sequence(s). If so, which one(s)? Are the two or more endogenous GL2 genes structurally identical? Similarly, the elected sequences are SEQ ID Nos. 90-98. It is unclear whether the “two or more” GL2 genes have at least 80% sequence identity to SEQ ID Nos. 90-98, or the claim further encompasses a non-elected sequence(s). If so, which one(s)? Similarly, in claim 18(b), it is unclear whether the “two or more” GL2 polypeptides have at least 80% sequence identity to SEQ ID NO:114, or the claim further encompasses a non-elected sequence(s). If so, which one(s)? Are the two or more GL2 polypeptides structurally identical?
In claim 85, line 1, “a method” should be amended to “the method”. Otherwise, it is unclear what characteristics the claimed Brassica plant has if it is produced by another method.
Claim 85 is missing an “expressing” step, because “contacting” alone does not produce a plant having the recited phenotypes.
Clarification and/or correction is required.
Claim Rejections - 35 USC § 112(a) Written Description
Claims 1, 3, 5, 7, 14, 18-19, 85 and 104 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Applicant’s disclosure is as follows.
Applicant describes mutating the Brassica juncea plant by knocking out two wild-type GL2 sequences. Specifically, SEQ ID NO: 112 was modified via a “1 bp insertion of nucleotide "A" at position 2170 and a 9 bp (GAGGATCAA) deletion starting at position 2250”. Additionally, wild-type SEQ ID NO: 115, a second GL2 sequence, was modified via an “11 bp (TGACGATGAGG) (SEQ ID NO:186) deletion starting at position 2215”. These modifications result in a “[o]ut-of-frame mutation which leads to an early stop codon” in the resulting nucleotide sequences (SEQ ID NOs: 136 and 138) and their corresponding amino acid sequences (SEQ ID NOs: 137 and 139) as described in Table 3 (p. 79). Additionally, the knockout of both SEQ ID NO:112 and SEQ ID NO:115 results in “a statistically significant (P value<.05) reduction in the number of trichomes on both sides of the leaf as well as a reduction in trichome presence on the leaf margin was observed” (pg. 82 lines 8-12 and pg. 83 lines 3-5). The only plants with the desired phenotype was found in only six plants which required both GL2 alleles knocked out (i.e. wildtype GL2 sequences having SEQ ID NOs: 112 and 115) (pg. 82 lines 8-12).
The claimed invention lacks adequate written description for the following reasons. Before the GL2 gene and a sequence encoding a GL2 protein can be mutated, they must first be identified. With regard to claim 1(a) and 1(b), while one skilled in the art can generate a population of sequences having at least 80% sequence identity to SEQ ID NO:112 or 80% sequence identity to a sequence encoding SEQ ID NO:114, it is unpredictable which sequences within said 80% sequence identity is a GL2 gene or a GL2 protein. The instant claims are directed to GL2 sequences obtained from sources other than B. juncea, whereby their structure and identity are not disclosed, so long as they share at least 80% sequence identity to SEQ ID NO:112 or 114. The claims encompass mutants and allelic variants of these sequences and thus imply that structural variants exist in nature, yet no structural variant has been disclosed. The implication is that there is a gene and a protein other than that disclosed which exists in nature, but the structure thereof is not known. The disclosure of SEQ ID NO:112 encoding SEQ ID NO:114 isolated from B. juncea is not representative of other GL2 genes and GL2 proteins from other sources. No function is recited for sequences having at least 80% sequence identity to SEQ ID Nos. 112 and 114. No structure-function correlation is disclosed. Thus, there are insufficient relevant identifying characteristics to allow one skilled in the art to predictably determine such mutants and allelic variants of other GL2 genes and GL2 proteins, from another B. juncea or a plant other than B. juncea, absent further guidance. Applicant failed to disclose a representative number of species within the scope of the genus or of a recitation of structural features common to the members of the genus, which features constitute a substantial portion of the genus.
With regard to 80% sequence identity to SEQ ID NOs. 90-98, these are partial gene sequences of the endogenous GL2 gene sequence of SEQ ID NO:112. The “comprises” language encompasses the full-length sequences. One skilled in the art cannot predict the structure of the full-length endogenous GL2 gene sequences from the disclosure of their partial sequences, even at 100% sequence identity, let alone at 80% sequence identity.
With regard to a mutated GL2 gene or a mutated sequence encoding a GL2 protein, it is highly unpredictable which mutation (insertion, deletion, substitution and any combination thereof) in which position(s) of SEQ ID NO:112 or a sequence encoding SEQ ID NO:114 would produce at least one of the claimed phenotypes. There are virtually an ad infinitum number of possible mutations to the recited sequences of the endogenous GL2 genes. The mutations shown in SEQ ID NO:136 (a 1 bp insertion of the nucleotide “A” at position 2170 and a 9 bp deletion beginning at position 2250) is not representative of the possible mutations and does not allow one skilled in the art to predictably determine other mutations for producing the claimed phenotypes.
In claim 18, the “two or more endogenous GL2 genes” present in a Brassica plant lacks adequate written description because only one GL2 gene (SEQ ID NO:112) is identified. It is unpredictable which of the 24 endogenous GL2 genes at 80% sequence identity, endogenous GL2 genes comprising a region having at least 80% sequence identity to any one of 9 fragments of endogenous GL2 genes, or nucleotides encoding a polypeptide having at least 80% sequence identity to 12 endogenous GL2 proteins, are the two or more endogenous GL2 genes present in a Brassica plant. It is further unpredictable whether only one endogenous GL2 contains a mutation, or two or more endogenous GL2 genes in a plant contain mutations, and if so, what and where these mutations are.
In claim 19, while one skilled in the art can generate a population of sequences having at least 90% sequence identity to SEQ ID NO:136, it is unpredictable which sequences within said population would produce the claimed phenotypes, because SEQ ID NO:112, the unmutated GL2 gene, also has at least 90% sequence identity to SEQ ID NO:136.
Accordingly, there is lack of adequate description to inform a skilled artisan that Applicant was in possession of the claimed invention at the time of filing. See Written Description guidelines published in Federal Register/ Vol.66, No. 4/ Friday, January 5, 2001/ Notices; p. 1099-1111.
Applicant’s Traversals
Applicant traverses primarily the following (1) The partial nucleotide sequences is accompanied by the disclosure of the full-length sequence (specification, p. 7, lns. 1-3). (2) The specification provides examples of how to make a Brassica plant comprising at least one mutation in an endogenous GL2 gene, in particular in a region of about nucleotide 2000 to about nucleotide 2465 with reference to SEQ ID NO:112, or in a region having at least 90% sequence identity to SEQ ID Nos. 90-98, and how to screen for mutations in the GL2 gene by next generation sequencing and phenotype screening. The specification discloses 25 examples of nucleotide sequences comprising at least one mutation in an endogenous GL2 gene. (3) For claim 18, the specification describes six varieties and discloses the sequence of two GL2 genes for each variety.
Response to Traversals
Applicant’s traversals have been considered but are deemed unpersuasive for the following reasons.
With regard to traversal (1), “[I]t is the language itself of the claims which must particularly point out and distinctly claim the subject matter which the applicant regards as his invention, without limitations imported from the specification. … Limitations in the specification not included in the claims may not be relied upon to impart patentability to an otherwise unpatentable claim.” In re Lundberg, 244 F.2d 543, __, 113 USPQ 530, 534 (CCPA 1957). The claims do not require the structures disclosed for the full-length GL2 genes outside of the fragments SEQ ID Nos. 90-98. See also the “or” recitation between the different embodiments recited.
With regard to traversal (2), the written description rejection is not based on how to make a mutation in an endogenous GL2 gene, or how to screen for mutations, but is because there is insufficient guidance with regard to where to make the mutations to produce the claimed phenotypes. Moreover, the limitation of a mutation in a region of about nucleotide 2000 to about nucleotide 2465 with reference to SEQ ID NO:112, or in a region having at least 90% sequence identity to SEQ ID Nos. 90-98, is only applicable to claim 1(b) or claim 85(c). Additionally, there is only one example of a mutated GL2 gene comprising the elected SEQ ID NO:112, not twenty-five. There is no working example of mutated endogenous GL2 genes, wherein the unmutated endogenous GL2 genes have 80% sequence identity to SEQ ID NO:112, or comprising a region having 80% sequence identity to SEQ ID Nos. 90-98.
With regard to traversal (3), claim 18 recites 24 GL2 gene sequences and does not disclose which two GL2 genes are in each Brassica variety. The “two or more” does not exclude multiple copies of the same GL2 gene, and encompasses three, four, etc., up to 24 GL2 genes in each Brassica variety, which are not disclosed or supported by Applicant’s disclosure.
Accordingly, the rejection is maintained.
Claim Rejections - 35 USC § 112(a) Enablement
Claims 1, 3, 5, 7, 14, 18-19, 85 and 104 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
(A) The breadth of the claims
The breadth of the claims encompasses a Brassica plant comprising at least one mutation in an endogenous GL2 gene, wherein the endogenous GL2 gene has 80% sequence identity to SEQ ID NO:112, or the endogenous GL2 gene has a region that has 80% sequence identity to any one of SEQ ID Nos. 90-98. Alternatively, the endogenous GL2 gene encodes a polypeptide having at least 80% sequence identity to SEQ ID NO:114 and has a mutation (i) in a region ≈2000-2465 of SEQ ID NO:112 or (ii) in a region having at least 90% sequence identity to any one of SEQ ID Nos. 90-98.
(B) The nature of the invention.
The nature of the invention is a Brassica plant comprising at least one mutation in an endogenous GL2 gene for reducing trichomes in a plant.
(C) The state of the prior art
The state of the prior art does not teach particular mutations in an endogenous GL2 gene for producing the reduced trichomes phenotype.
(D) The level of one of ordinary skill
The level of one of ordinary skill in the art is high.
(E) The level of predictability in the art
It is highly unpredictable what mutations within SEQ ID NO:112 or within a sequence encoding SEQ ID NO:114, or mutations of a GL2 gene comprising a region having any one of SEQ ID Nos. 90-98, that would produce the claimed phenotypes.
(F) The amount of direction provided by the inventor
No guidance is provided as to the location or type of mutation within SEQ ID NO:112 or within a sequence encoding SEQ ID NO:114, or mutations of a GL2 gene comprising a region having any one of SEQ ID Nos. 90-98, that would produce the claimed phenotypes.
(G) The existence of working examples; and
SEQ ID NO: 112 was modified via a “1 bp insertion of nucleotide "A" at position 2170 and a 9 bp (GAGGATCAA) deletion starting at position 2250.
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
Given the lack of sufficient guidance and working examples, the state of the prior art, the unpredictability as to the location and type of mutation to produce the claimed phenotypes, the quantity of experimentation needed to make and the claimed invention is undue.
With regard to claim 1, no function is recited for the endogenous GL2 gene and there is no disclosure as to how said function is altered when the gene is mutated to produce the claimed phenotypes, e.g., knockout mutation. While one skilled in the art can determine whether a sequence has at least 80% sequence identity to SEQ ID NO:112 or 114, no guidance is provided as to how one skilled in the art can readily determine whether said sequence is a mutated or unmutated GL2 gene. In Applicant’s working example, the mutated GL2 gene (SEQ ID NO:136) also has at least 80% sequence identity to SEQ ID NO:112. With regard to an endogenous GL2 gene comprising a region that has at least 80% sequence identity SEQ ID NOs:90-98, there is no guidance as to how to determine the full-length gene and protein from fragments having 63-329 nucleotides of a sequence having 8018 nucleotides (SEQ ID NO:112). In addition to difficulties in determining what sequences are unmutated/mutated GL2 sequences, no guidance is provided as to the position and type of mutation necessary to produce the claimed phenotypes. The only difference between the unmutated GL2 gene and the mutated GL2 gene is the phenotype of reduced trichomes, which cannot be readily determined at the structural or cellular level. While one skilled in the art can readily make mutations to a sequence, further guidance is needed as to the location and type of mutation(s) in the full-length GL2 gene and a sequence encoding the GL2 protein to produce the claimed phenotypes. With regard to SEQ ID Nos. 90-98 in claim 1(a), the mutation is not limited to a region having 80% sequence identity to any one of SEQ ID Nos. 90-98 but encompasses regions of the GL2 gene outside of SEQ ID Nos. 90-98. However, no guidance or working example is provided to address such regions. Claim 1(b) is also not enabled because there is no guidance as to the position and type of mutation within the ≈2000-2465 region of SEQ ID NO:112, or the position and type of mutation within a region having 90% sequence identity to any one of SEQ ID Nos. 90-98, to produce the claimed phenotypes. The claim does not address allotetraploid Brassica plants having multiple GL2 genes. See also claim 85.
Claim 3 is also not enabled because it merely lists all possible mutations—substitutions, deletions, insertions and any combination thereof, and does not address the positions and types of mutations necessary to produce the claimed phenotypes.
Claim 5 is also not enabled because it does not address the position of the at least one base pair deletion and other mutations that must accompany said deletion to produce the claimed phenotypes.
Claim 7 is also not enabled because there is no coding region disclosed for SEQ ID Nos. 112 and 90-98 for one skilled in the art to determine whether a deletion is an out-of-frame deletion or an in-frame deletion, or that an insertion is an out-of-frame insertion. See also claim 104.
Claim 14 merely lists the different Brassica plants and does not address any of the issues set forth in claim 1.
Claim 18 is also not enabled because the two or more endogenous GL2 genes in a Brassica plant is not identified. Only SEQ ID NO:112 is identified. It would require undue experimentation to determine which sequences within the 80% sequence identity to the 24 endogenous GL2 genes recited, endogenous GL2 genes comprising a region having at least 80% sequence identity to any one of 9 fragments of endogenous GL2 genes, or nucleotides encoding a polypeptide having at least 80% sequence identity to 12 endogenous GL2 proteins, are the two or more endogenous GL2 genes present in a Brassica plant. The identification of the endogenous GL2 genes present in a Brassica plant must be done before a mutation can be made to produce the claimed phenotypes. In addition to a lack of guidance as to what mutation to make to an endogenous GL2 gene, Applicant does not address whether only one of the two or more GL2 genes is required to be mutated, at least two GL2 genes must be mutated, or all the GL2 genes in the plant must be mutated to produce the claimed phenotypes. The working examples disclose an allotetraploid B. juncea plant wherein both sub-genomes A and B are mutated (Table 3).
Claim 19 is also not enabled because the at least 90% sequence identity to SEQ ID NO:136 encompasses nucleotide deletions, insertions, substitutions and any combination thereof anywhere in SEQ ID NO:136. SEQ ID NO:112 is an unmutated sequence that has at least 90% sequence identity to SEQ ID NO:136. There are likely other sequences within the 90% sequence identity population that also cannot produce the claimed phenotypes. However, these sequences cannot be identified or eliminated other than by random trial and error requiring undue experimentation. One skilled in the art would be required to produce all possible mutations and combinations of mutations within the 90% sequence identity genus, introduce each mutation into a plant cell, produce a plant, and determine whether the mutation(s) produce the reduced trichomes phenotypes. Absent further guidance as to how inoperable embodiments can be readily eliminated, or how operable embodiments can be readily identified, such experimentation would not be considered to be routine.
Given these difficulties, notwithstanding a relatively high level of ordinary skill of those in the art, the amount of experimentation would likely be extensive and undue.
Weighing all the Wands factors based on the totality of the record as discussed above, the Office determines that it would require undue experimentation for a person of ordinary skill in the art to make and use the invention as claimed.
Applicant’s Traversals
Applicant primarily traverses the following. (1) At least one mutation is in a region of the endogenous GL2 gene from about nucleotide 2000 to about nucleotide 2465 with reference to SEQ ID NO:112 or in a region having at least 90% sequence identity to SEQ ID Nos. 90-98 and having the recited phenotypes. (2) A mutated GL2 gene comprising a nucleotide sequence having at least 90% sequence identity to SEQ ID NO:136 necessarily includes at least one mutation in an endogenous GL2, in particular in a region from about nucleotide 2000 to about nucleotide 2465 with reference to SEQ ID NO:112 or in a region having at least 90% sequence identity to SEQ ID Nos. 90-98 and having the recited phenotypes. (3) The mutants in Example 1 are each in a region of the endogenous GL2 gene from about nucleotide 2000 to about nucleotide 2465 with reference to SEQ ID NO:112 or in a region having at least 90% sequence identity to SEQ ID Nos. 90-98 and having reduced trichomes. (4) The specification describes six varieties of plants and discloses the sequence of two GL2 genes for each variety; Example 1 describes a mutation in each of ten SEQ ID Nos in a region of the endogenous GL2 gene from about nucleotide 2000 to about nucleotide 2465 with reference to the ten SEQ ID Nos. or in a region having at least 90% sequence identity to SEQ ID Nos. 75-102 (Table 3); and Example 2 describes the identification of six plants that were homozygous for edits in both of the target GL2 genes (in sub-genomes A and B) and contained the edited alleles described in Table 3, wherein said plants displayed reduced trichomes.
Response to Traversals
Applicant’s traversals have been considered but are deemed unpersuasive for the following reasons. With regard to traversal (1), Applicant does not address claim 1(a) or claim 85(a) and (b), which do not have these limitations. Moreover, the claims do not address the location and the type of mutations within these regions. Where in the ≈2000-2465 of a sequence having 80% sequence identity to SEQ ID NO:112 or in a region having 90% sequence identity to SEQ ID Nos. 90-98 are the mutations, and what type of mutations are they?
With regard to traversal (2), only claim 1(b) and claim 85(c) have the limitation of a mutation at positions ≈2000-2465 of a sequence having 80% sequence identity to SEQ ID NO:112 or in a region having 90% sequence identity to SEQ ID Nos. 90-98. SEQ ID NO:112 is an unmutated GL2 gene sequence that has at least 90% sequence identity to SEQ ID NO:136. There are likely other sequences within the 90% sequence identity population that also cannot produce the claimed phenotypes. However, other than SEQ ID NO:136, there is no working example and no guidance as to how to identify other mutated GL2 gene sequences within the 90% sequence identity to SEQ ID NO:136 that would produce the claimed phenotypes can be identified without excessive burden and undue experimentation.
With regard to traversal (3), Applicant is arguing limitations that are presented as an alternative embodiment in the claims. The claims do not per se require these limitations.
With regard to traversal (4), Applicant’s traversals are not commensurate in scope with the claims. Applicant only elected sub-genome A of allotetraploid B. juncea (SEQ ID NO:112). The claims do not specify two GL2 genes for each variety. The working examples only disclose one mutation for the elected SEQ ID NO:112. There is no working example of a mutated GL2 gene comprising a region having at least 80% sequence identity to any one of SEQ ID Nos. 90-98. Moreover, the claims do not require the limitation of a mutation at positions ≈2000-2465 of a sequence having 80% sequence identity to SEQ ID NO:112 or in a region having 90% sequence identity to SEQ ID Nos. 90-98. The claims do not require that the claimed Brassica plant to be homozygous for the GL2 genes, wherein both GL2 genes are mutated to produce reduced trichomes.
According, the rejection is maintained.
Claim Rejections - 35 USC § 103
Claims 1, 3, 5, 7, 14, 18-19, 85 and 104 are rejected under 35 U.S.C. 103 as being obvious over Nayidu et al. (PLOS ONE, Vol.9, No.4: e95877, 2014, https://doi.org/10.1371/journal.pone.0095877 (previous cited)) in light of Nayidu et al. Supplemental (PLOS ONE, Vol.9, No.4: e95877, 2014, 10 pages, 2014 (previous cited)), and Chai et al. (UniProt Database, Accession No. D0PSG2, 15 Dec 2009, Theor. Appl. Genet., 120:1597-1610, 2010 (previous cited)), in view of De Veylder et al. (US 2016/0272992 (previous cited)).
In regard to claims 1, 3, 5, 7, 14 and 19, Nayidu et al. teaches Brassica napus GL2 (GLABRA2) nucleotide sequence, identified in Embl Accession No. EU826520.1 (p.3, Table 1), as well as the corresponding amino acid sequence (Nayidu Suppl., Fig. S1). Nayidu et al. teaches that GL2 is a major regulator for trichome synthesis in Brassica spp. (Abstract and p.9, col.2, 2nd paragraph) and that inhibiting GL2 expression “prevents trichome initiation in neighbouring cells” (p.2, col.1, 1st sentence). Moreover, “RNA seq showed that the single-copy BvGL2 gene … have very high transcript levels in hairy B. villosa leaves” and that “[t]ranscripts of the single BoGL2 were undetectable in glabrous [smooth] B. oleracea leaves” (p. 5, col.1 and Fig. 2). That is, when expression of the GL2 gene is inhibited or reduced, it results in smoother leaves. Nayidu et al. discloses that "[i]n the future, it will be particularly useful to express these B. villosa genes in a range of other Brassica species and to develop knock-out RNAi lines in B. villosa to solve the mystery of their true function" (p.10, col.1). The reference further identifies "high transcript levels for BvGL2, BvTTG1, BvTRY-1, and BvCPC-1 in B. villosa leaves with densely covered trichomes” (p.10, col.1). Taken together, these teachings suggest knocking out the identified genes to reduce trichomes.
Nayidu et al. teaches nucleotide sequence having accession number EU826520 and provides the alignment of the amino acid sequence of Nayidu et al. (Suppl., Fig. 1, EU826520).
Chai et al. identifies that the nucleotide sequence of Nayidu et al. having Embl accession number EU826520 encodes the amino acid sequence having accession number ACJ54443 (Chai, Embl EU826520, attachment). The amino acid sequence (ACJ54443) of Chai shows 99% sequence identity to Applicant’s SEQ ID NO:114 (see Result 8) and 99% sequence identity to Applicant’s SEQ ID NO:137 (the mutated GL2 protein sequence, see Result 10).
An examination of these sequence alignments discloses several amino acid differences (i.e. mutations) and deletions, indicating their corresponding nucleotide sequences contain mutations and deletions.
While Nayidu et al. teaches using RNAi to reduce GL2 gene expression, Nayidu et al. does not teach mutation to the GL2 gene to reduce gene expression or the at least one mutation is in a region having at least 90% sequence identity to any one of SEQ ID NOs: 90-98.
De Veylder et al. teaches “Methods for down-regulation are known to the person skilled in the art, and include, but are not limited to, mutations, insertions or deletions in the gene and/or its promoter, the use of anti-sense RNA or RNAi and gene silencing methods.” (p. 2, [0008]). Therefore, De Veylder et al. teaches mutations, insertions, deletions (i.e. out-of-frame mutations) or RNAi can be used to reduce gene expression.
Therefore, prior to the effective filing date, it would have been prima facie
obvious to one of ordinary skill in the art to substitute the RNAi molecule of Nayidu et al. with the deletion mutation of De Veylder et al. to reduce expression of the endogenous GL2 gene in a Brassica plant. The reduced GL2 gene expression would reduce the number of trichomes, as taught by Nayidu et al. The choice of using RNAi or a deletion mutation is an experimental design choice well within the means of one skilled in the art without any surprising or unexpected results and with a reasonable expectation of success. Furthermore, according to Applicants own specification the end objective was to produce a knockout mutation of the GL2 gene to reduce trichomes in a Brassica plant. Thus, one skilled in the art would be motivated to reduce or inhibit expression of the GL2 gene as taught by De Veylder with a reasonable expectation of success.
In regard to the mutation, the mutated GL2 sequence is not required to retain a region having at least 80% sequence identity to any one of SEQ ID NOs: 90-98. The entire structure of any one of SEQ ID NOs: 90-98 can be deleted out.
In regard to claim 18, Nayidu et al. discloses a B. napus plant with an endogenous GL2 gene (see fig. 3). As indicated above, Acc. No. EU826520 of Nayidu and Chai discloses a GL2 gene having 99% sequence identity to Applicant’s SEQ ID NO:90. Because B. napus is allotetraploid, it inherently has at least two endogenous GL2 genes.
Claim 85 is directed to a plant produced by the method. The plant of claim 85 is the same as the plant of claim 1, as the recited method used to produce the plant does not impart a structural change to the plant.
In regard to claim 104, the recited out-of-frame mutations and resulting premature stop codons are the underlying cause that creates the GL2 knockout alleles. Therefore, the end objective to reduce GL2 expression and result in reduced trichome phenotype can be achieved via either gene silencing or producing out-of-frame mutations of the GL2 gene.
Accordingly, the claimed invention is prima facie obvious in view of the prior art.
Applicant’s Traversals
Applicant traverses primarily the following. (1) Nayidu alone or in combination with Chai and De Veylder fails to teach or suggest an endogenous GL2 gene comprising at least one mutation in the region from about nucleotide 2000 to about nucleotide 2465 with reference to SEQ ID NO:112 or in a region having at least 90% sequence identity to SEQ ID Nos. 90-98. (2) Knockdown lines for single copy of GL2, cop 1 of EGL3 and TTG1 in B. napus resulted in no observed phenotype changes.
Response to Traversals
Applicant’s traversals have been considered but are deemed unpersuasive for the following reasons.
With regard to traversal (1), Applicant does not address claim 1(a) or claim 85(a) and (b), which do not have the limitation of at least one mutation in the region from about nucleotide 2000 to about nucleotide 2465 with reference to SEQ ID NO:112 or in a region having at least 90% sequence identity to SEQ ID Nos. 90-98.
With regard to traversal (2), since B. napus is an allotetraploid, knockdown of a single copy of GL2 would not be expected to produce reduced trichomes. Moreover, the claims do not require knockdown of a GL2 gene.
Accordingly, the rejection is maintained.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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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/C.J.O./Examiner, Art Unit 1663 /PHUONG T BUI/Primary Examiner, Art Unit 1663
