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 .
Claim Status
Claims 1-15 are under examination on the merits.
Priority
Claims 1-15 receive the U.S. effective filing date of 08/23/2023
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 2, 5, 8 & 11 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with scope of enablement requirements. The claims contain 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.
This rejection is modified, for clarification, from the rejection set forth in the Office Action dated 02-18-2025 in view of Applicants response.
Regarding claim 2; it recites a method of creating a stable diploid plant through self-fertilization of a haploid plant. Biologically, this requires doubling the chromosomes either naturally or artificially. The scope of claim 2 encompasses performing this method in any species of plant (i.e. ‘creating an offspring plant’). The scope of claim 2 does not limit to a plant species, such as the Cannabis of dependent claims 5, 8 & 11.
While the general concept of manipulating chromosomes to generate homozygous doubled-haploids (i.e. diploids) is commonly recognized in the art of plant breeding, requirements of haploid doubling procedures are highly technical and specific. The species-specific factors influencing development of doubled haploids is reflected in the research literature which teaches the necessity of species-specific genes and/or germplasm, as well as associated manipulation of environmental factors in influencing doubling rates [Yel, I., Dönmez, B.A., Yeşil, B., Tekinsoy, M., Saeed, F., Bakhsh, A. (2023). Doubled Haploid Production – Mechanism and Utilization in Plant Breeding. In: Raina, A., Wani, M.R., Laskar, R.A., Tomlekova, N., Khan, S. (eds) Advanced Crop Improvement, Volume 1. Springer; Published 08-02-2023]. It is generally known that within particular plant species, highly specific genes, genetic stocks, and marker phenotypes are involved in directed manipulation of chromosomes and generation of doubled haploids.
There is a high level of experimentation required to characterize effective methods of identifying and doubling haploids in a particular crop plant. Even within maize, as an example of a species where this methodology is highly developed, multiple approaches to identify haploids are possible and “require specialized skills and involve continuous costs and special preparation techniques” [See Maqbool, p.2823 par.6; Maqbool, M.A., et al. Doubled haploids in maize: Development, deployment and challenges. Crop Science 2020;60:2815-2840; Published 09-26-2020]. Within maize, the techniques do not apply across the entire species and are often particular to narrow breeding families or pools of genetically related material.
Further, the specifics of the doubling process are highly variable and even in maize, “spontaneous doubling occurs infrequently” [Maqbool p.2828, par.3] and, “…although…[doubling can be incorporated] into the background of different germplasm, [it] appears to be a complex trait in light of its variable expression depending on the environment and genotype X environment interactions” [Maqbool, p.2828, par.6] and further, “low frequency of [doubling] necessitates the use of chemically induced doubling” [Maqbool, p.2829 par.1]. It is clear that technical methods required to reliably direct chromosome doubling are specific and exacting.
This is recognized and acknowledged by Applicant. Applicant admits chromosome doubling does not occur in similar fashion across all plant species, and more specifically not in Cannabis, stating directly in the opening sentence of their detailed description [0030], “The Cannabis plant is unique in that it is rarely able to spontaneously convert haploid genomes (1n) to diploid genomes (2n) when haploidy has been induced by artificial means.” This directly tells the reader that Cannabis is more difficult to achieve doubling in than other crops, emphasizing that without specific teaching or methods one cannot make or use such methods in Cannabis.
However, Applicant does not provide such enabling details. The specification does not teach how to generate diploids from haploids via doubling for any and all plant species. It is not disclosed how one would perform the Applicant’s claimed method in all plants sufficiently representative of the plant kingdom.
Rather, the written description focuses solely on Cannabis, potentially as a representative plant species. Yet there is not adequate detailed support of how to make, use or manipulate such Cannabis genes generally responsible for doubling, or how to methodically identify the desired haploid or doubled plants. Because the proposed inventive method appears to be highly specific to Applicant’s narrow collection of cultivars, without further technical information one could not recreate, make or use the claimed method outside of Applicant’s germplasm. The only description provided of the claimed method is Applicant disclosing that they have collected several interesting plants embodying some form of polyploid series, referred to in the drawings, which they interpret as spontaneously doubled haploids, despite contradictory flow cytometry data.
Again, no information is provided as to the methods by which Applicant arrived at the embodiments shown in the drawings or how one would recreate the method of the claims in any and all plants. Even within the very narrow species of Cannabis sativa drawn to in the written description, it is unclear how one would make or use the claimed method. This is because there is insufficient supporting information on tissue uniformity, somaclonal or reproductive stability of proposed spontaneously doubled haploids, and genetic or environmental factors influencing induction and/or doubling rates.
Applicant describes several Cannabis cultivars they consider valuable. Such initial collections and description of genetically unique individual plants are important and have often provided the beginnings of long-term plant breeding programs. However, mere existence of potentially unique plants does not provide an informative method of how they were horticulturally arrived at, or how such material could be replicated by another person skilled in the art. Further, even if one were provided with species-specific technical details in Cannabis, such disclosure does not enable one to generate spontaneously or chemically doubled haploids in any and all plant species.
To make the leap from the generally known doubled-haploid production techniques in one species to a functional, applied genetic invention in alternate plant species typically necessitates development of multi-year research programs among highly-skilled scientists. While such initiatives are now routine, these programs entail development of specific populations of breeding material and characterization of specific genes, phenotypes, and environmental effects to disclose, make, and use doubled haploids in particular crop species.
This context indicates a high level of skill and creativity of those working in this art, but also indicates the process requires extensive time, money, and specialist knowledge to distill the general concept of ‘doubled haploids’ as used in one crop species into a functional method or product(s) in an alternate plant species. One cannot remain silent on the necessary species-specific technical requirements while pointing to a generally known technique or phenomena and simply declare ‘apply it’ to all plants.
Based on Applicant’s limited written description, which clearly does not support the full scope of claim 2, one skilled in the art would not be able to make or use the claimed inventive method reliably in any and all plant species. One could not simply cross-apply techniques alluded to in the written description using the example of Cannabis, and as claimed by Applicant for use any and all plant species without further enabling description. One skilled in the art would not be able to practice the claimed method, which is drawn to potentially all plant species, without extensive and undue experimentation.
As written, the specification does not enable one skilled in the art to practice the invention of claim 2. Because of this, the dependent claims 5, 8 & 11 are also not enabled. There is not enough information provided by Applicant for one skilled in the art of the plant breeding to connect the generally known concept of doubling haploids to an enabled method of doing so in any plant species. Because of this, independent claim 2 is rejected and therefore its dependent claims 5, 8 & 11 are also rejected for failing scope of enablement.
Claims 2, 5, 8 & 11 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with written description requirements. The claims contain 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 inventors, at the time the application was filed, had possession of the claimed invention.
This rejection is modified, for clarification, from the rejection set forth in the Office Action dated 02-18-2025 in view of Applicants response.
Regarding claim 2; it recites a method of creating a stable diploid plant through self-fertilization of a haploid plant. Biologically, this requires doubling the chromosomes either naturally or artificially. The scope of claim 2 encompasses performing this method in any species of plant (i.e. ‘creating an offspring plant’). Dependent claims 5, 8 & 11 narrow use of the method to the genus Cannabis.
In the specification, Applicant provides background on the general use of chemical agents to alter chromosome number in crop plants which is well known [0031]. They further go on to explain that Cannabis is particularly tricky to work with in this field of endeavor, tending towards ‘mixaploid’ tissues wherein multiple levels of chromosome doubling or reduction can occur naturally and coexist within a single plant [0035]. This suggests that traditional methods or expectations of altering chromosome number do not work when applied to Cannabis and that the inventive method of claims 5, 8 & 11 lies in being able to solve this problem. Applicants claim to have solved this problem by a method of generating a stable diploid by self-pollinating a haploid Cannabis plant. They do not define ‘stable’ or ‘stabilizing’ relative to any specific level of genetic homogeneity or heritability. They do define, haploid as, “(n): Cells with a single set of chromosomes” and diploid as, “(2n): Cells with two sets of chromosomes” [0040-41].
Applicant also defines several genetic states not considered diploid. They refer to the genomic constitution of a ‘mixaploid’ in drawing 3C at [0060], as “mixaploid (n + 2n) state”, and also on page 7 [0038] as “A “mixaploid state” refers to a condition in which a plant or organism has cells with varying ploidy levels, meaning some cells have different numbers of chromosome sets”. They go on to define ‘somatic mosaicism’ as [0048] “an organism may have cells with different ploidy levels...where some cells are diploid while others are polyploid”. Furthermore, they point out the term ‘chimera’, as [0049], “an organism composed of genetically distinct cells”. These definitions all explicitly state that a mixed chromosome number within cells of the same organism places that individual outside of what is defined as ‘diploid’.
They further discuss the practical issues this causes on page 6 [0035] whereby the persistence of cells with multiple ploidy levels (mixaploidy) are described as “unstable scenarios…not practical for a commercial seed producer that requires consistency”. Additionally, they state “Alternative methods of producing diploid plants from haploid plants require laborious analytical methods to ensure that all cells and tissue layers are fully diploid. Our method for establishing diploidy through self-fertilization is an elegant alternative to previous methods.” Applicant emphasizes their method is an invention which does not need lab methods to ensure all cells and tissue layers of resulting plants are ‘fully diploid’ which is presented as the alternative to ‘mixaploid’, ‘somatic mosaicism’, and ‘chimeras’. Thus, their claims are drawn to stability of diploids presented as the opposite of ‘mixaploids’, ‘somatic mosaics’, or ‘chimeras’.
However, their written description does not provide any details of the process of manipulation of chromosomes in the Cannabis plants of claims 5, 8 & 11. One sentence is provided at [0071] stating, “At step 601, a plant is treated with colchicine (or any chemical that will achieve increasing a ploidy level such as a doubling of the chromosomes with Oryzalin).” Referring to Step 601 to see if any further detail is provided the drawing simply states, “TREAT A HAPLOID PLANT WITH COLCHICINE”. There is no description of generation of a haploid plant, its identification, or subsequent aspects of self-pollinating and generation of the diploid progeny. There is no description of the method involving doubling to diploid without manual intervention or use of a microtubule inhibitor, as claimed in 5, 8 & 11. With respect to their disclosure of chromosome manipulation with chemical agents, they provide no description of their treatment process, specific chemical formulations or tissues involved, or methods of assessing outcomes of their claimed process. They also state elsewhere in the specification that, “Colchicine treated haploid Cannabis plants very rarely, if ever, achieve a fully diploid state” [0031]. Once again, Applicant emphasizes that standard methods of chromosome manipulation used in crop plants are not likely to work when directly transferred to Cannabis.
The only specific information disclosed by Applicant is that of embodiments in Figures 1 – 5, which consist of pictures of a single, individual leaf from each of several cultivars and corresponding flow cytometry data. The cytometry data shows relative percentage of cells of each level of polyploidy in their cultivar series. Applicant describes the example series for ‘Mary Jane Manhunt’ at [0066-0069], stating the material is in diploid (2n) state when data shows only 58.33% of the sample tissue is diploid, then describe the material as haploid (n) when data shows only 61.06% of sample tissue is haploid, and further describe another tissue sample as an ‘exemplary diploid (2n) parent’ when data shows only 38.7% of the sample tissue is diploid. All sample data presented appear contrary to the statements of the Applicant and show mixaploid plant tissue based on flow cytometry results, indicating the embodiments are not functionally representative of the claimed inventive method.
Further, there is no indication of what tissues were used for sampling to arrive at their data, nor if the individual plants depicted were sampled over multiple time points or generations of propagation. There is no indication that flow cytometry data is related to reproductive or germline cells, or how or if the instant examples of polyploids can confer the same genetic state observed in the analyzed tissue to progeny or clones. It is notable that in figures 5A-5D, critical cytometry data is missing. No data is presented showing chromosome content of the doubled-haploid stage plant, [0066] which would be critical to claims 5, 8 & 11, although chromosomal data is provided for all other relevant steps of the method. Applicant states, “The mixaploid data for the colchicine treated haploid was not gathered” although it is not clear how one would know the colchicine treated plant was mixaploid if no data was gathered to determine its genetic constitution. Of the data that is provided, the flow cytometry data shows non-uniform chromosomal constitution in all embodiments provided. No tissue sample consists of >58% diploid cells, and the ‘stabilized’ examples pointed to by Applicant as their putative diploids all consist of (2n + n) tissues.
The specification fails to satisfy written description requirements because no enabling method of generating diploid plants from haploids via self-pollination is presented. Applicant’s method is put forth as a solution to the problem that mixaploid tissue presents to horticulturalists and seed producers. However, the specification provided does not sufficiently describe the proposed method. Applicant does not describe the process of chromosome manipulation used and their exemplary embodiments appear to contradict the claimed method. Applicants flow cytometry data shows all tissue samples as various mixtures of cell types, and not consistently or uniformly diploid. As such, none of the materials included in the specification demonstrate possession of the claimed invention. The specification as currently written provides a disclosure of interesting genetic material maintained by Applicant that may have arisen spontaneously or naturally at the described states, all of which is still mixaploid.
As written, claims 2, 5, 8 & 11 do not demonstrate possession of the claimed invention. There is not enough information provided by Applicant for one skilled in the art of the plant breeding to understand how they would connect the general concept of ‘doubling haploids’ to an inventive method of doing so in Cannabis. Further, the embodiments provided appear to contradict the method claims, indicating Applicant is not in possession of the claimed invention. Because of this, claims 5, 8 & 11 are rejected for lack of possession of the claimed method.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 1 is rejected under 35 U.S.C. 101 because the claimed invention is directed to a naturally occurring phenomena without significantly more. The claim recites a method, “doubling a plants ploidy, self-fertilizing the doubled plant, and…creating an offspring of…doubled ploidy” which, given the broadest reasonable interpretation, encompasses generation of any autopolyploid plant. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception it is directed to and it is not integrated into a practical application beyond describing the phenomenon of polyploidization via chromosome doubling and the inherent characteristics of polyploids. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception because generation of polyploids is known to occur naturally as a major evolutionary force in the plant Kingdom. Within the context of agriculture this naturally occurring phenomenon has resulted in the origin of several major crop species, perhaps best studied in wheat (Triticum spp.) and its relatives.
The natural and widespread doubling and stabilization of plant chromosomes is a prevalent factor in speciation and the natural history of the plant Kingdom. Summary description is provided by Stuessy [Stuessy, T., Weiss-Schneeweiss, H. What drives polyploidization in plants? New Phytol. 2019 Jun 12;223(4):1690-1692; Published 06-30-2019]. In their figure 1, they provide summary depiction of the method of formation of a stable tetraploid (4n) plants from parental diploids (2n). This supplements their description of the evolutionary importance of the process in plants, producing stable germline polyploids both within and between wild plant species. They state, “surveys of levels of polyploidy among flowing plants have estimated that at least 35% of present species are recent polyploids.” [p.1690, par.1] Stuessy also points to self-pollination of plants as a regular aspect in the widespread generation of autopolyploid species as, “The former [autopolyploidy] is the simplest way for a chromosomal set to be multiplied, and this occurs within the same individual plant…by crosses [pollination] within the same population (or individual) [self-pollination] involving unreduced gametes, yielding polyploid offspring.” [p.1690, par.2]
Further, Peng-Zheng describes specific occurrence of diploid to tetraploid doubling in cultivated species such as wheat (Peng-Zheng, Lei, et al. Patterns and impacting factors of gene evolutionary rate between wild and cultivated emmer wheat (Triticum turgidum) Journal of Systematics and Evolution. 2023. Vol 61 Issue 2: pp.345-355; Published 04-08-2022). Within major crops, Peng-Zheng points to formation of polyploids in multiple domesticated crops, notably emmer wheat Triticum turgidum ssp. dioccon and its relatives. [p.345, Introduction, par.1] Emmer wheat has been extensively studied by crop geneticists in its own right, as well as for its relation to hexaploid bread wheat, one of the world’s most important domesticated food crops. Formation of emmer wheat is clearly ascribed to genome doubling of diploid Triticum uratu and an unknown ancestral species which led to formation of the stable tetraploid under cultivation [Peng-Zheng, p.345, Introduction, par.2]. The method of claim 1 in the instant application is not markedly different than what occurs in nature, as described in wild plants by Stuessy and in cultivated crops by Peng-Zheng. Claim 1 does not recite any additional elements and practical steps or integrations beyond generation of a polyploid plant via chromosome doubling.
As understood in light of the specification, the broadest reasonable interpretation of claim 1 encompasses the natural phenomenon of formation of tetraploid plant species from diploid ancestors. Naturally occurring tetraploids are well-documented in both wild and domesticated species of plants. Such natural phenomena are a judicial exception to the four statutory categories of invention unless there are additional elements amounting to significantly more, or a practical application, of the natural phenomenon.
The instant application provides neither additional elements nor practical application beyond the stating the known generic characteristics and origins of naturally occurring polyploids and because of this claim 1 is rejected. See MPEP 2106.04(b)(I).
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3-4, 6-7, 9-10, and 12-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Crawford (Crawford et al. Characteristics of the Diploid, Triploid, and Tetraploid Versions of a Cannabigerol-Dominant F1 Hybrid Industrial Hemp Cultivar, Cannabis sativa ‘Stem Cell CBG’ Genes 2021, 12, 923; Published: 06-17-2021).
This rejection is modified, for clarification, from the rejection set forth in the Office Action dated 02-18-2025 in view of Applicants response.
Claim 1 claims doubling the chromosomes of a given plant species (i.e. converting from a haploid to a diploid, from a diploid to a tetraploid, from a tetraploid to an octoploid, etc.), self-fertilizing that plant, and creating an offspring with the intended doubled chromosome number. Genetically such plants are described as tetraploid (4n) when derived from the usual diploid varieties (2n) and have been utilized for crop improvement goals in several species. Most notable among those are watermelons (Citrullus lanatus) where tetraploid pollinator varieties have a long history of development and are used generate the seedless triploid (3n) watermelons familiar to most American shoppers. This common breeding approach using polyploidy has been replicated in other crops where ‘seedless’ or general chromosome manipulation is desired for quality or yield improvement. Dependent claims 4, 7, & 10 narrow from 1 to limit the method to Cannabis and subcategories of the genus.
The generation of such tetraploids [i.e. plants ‘doubling a plant’s ploidy’] in Cannabis, referred to as C. sativa or hemp, is disclosed clearly by Crawford. They describe manipulating the chromosome number of Cannabis sativa with a microtubule inhibitor and production of tetraploid seed. In their Materials & Methods, p.3 par.2, “Tetraploid versions of [diploid] ‘P163’ were produced by treating young seedlings for 48 h with a 0.2% colchicine solution… Colchicine treatments were applied to the apical meristem of forty ‘P163’ seedlings immediately after cotyledons opened. Six colchicine-treated seedlings that were estimated to be tetraploids were then [used]…to produce selfed seeds [i.e. ‘self-fertilizing the doubled plant’ and ‘creating an offspring…of a desired doubled ploidy targeted when doubling the plant’s ploidy’].” They also describe what would motivate one to apply such techniques of chromosome manipulation used to make ‘seedless’ or other polyploids in Cannabis, p.1 par.2, “Avoiding pollination of female flowers during the production of C. sativa for cannabanoids is a priority for growers of this crop, as pollination has been shown to reduce essential oil yield by more than 55%” and p.2 par.3, “Reports have speculated that triploid C. sativa cultivars may be infertile, and therefore resistant to the yield damage caused by pollination”. They summarize the motivation of their research as p.2 par.5, “Given the potential advantages of ploidy manipulation in C. sativa, our goal was to produce and test…diploid, triploid, and tetraploid type IV C. sativa plants.”
Crawford anticipates claims 1, 4, 7, & 10 of the instant application. The limitation of doubling a plant’s ploidy in the instant application is taught in their Materials & Methods [p.3 par.2]. The subsequent self-fertilization of the resulting ‘doubled plant’ along with generation of offspring of the desired doubled ploidy targeted is also taught in their Materials & Methods [p.3 par.2]. The dependent claims 4, 7, & 10 are anticipated in Cannabis by Crawford [p.2 par.5]. Because all steps of claims 1, 4, 7 & 10 are taught by Crawford, the claimed method is anticipated and claims 1, 4, 7 & 10 are rejected in their entirety.
Claim 3 claims a two-component method of treating a genetically female plant with a microtubule inhibitor, which is a chemical agent that can alter chromosome number, and also with an ethylene blocker so as to effect a sex-change. The two components together would increase or alter the chromosome number of the plant and confer the ability of that treated female plant to generate pollen and fertilize itself, generating seed or offspring, and potentially becoming a self-perpetuating variety or breeding line.
Claims 6 & 12 are dependents from claim 3 and narrow by specifying that the method be applied to the genus Cannabis or categories of Cannabis comprising ‘hemp’. Claim 9 is an alternate narrowing of claim 6 drawn to ‘marijuana’. Claim 13 is dependent from claim 3 and narrows by specifying that the female plant to be fertilized is the specific, individual plant that was treated with the ethylene blocker. This differs slightly from claim 3, wherein the fertilized plant could be a genetically identical but physically separate ‘clone’ plant.
The method of claim 3 and its narrowing claims is taught in Cannabis by Crawford. They describe manipulating the chromosome number of Cannabis sativa, specifically referring to hemp [first sentence of Abstract and throughout text], with a microtubule inhibitor combined with use of an ethylene blocker (silver compounds) to effect sex-change of the treated plants so they can be self-pollinated to produce seed. In their Materials & Methods, p.3 par.2, “Tetraploid versions of [diploid] ‘P163’ were produced by treating young seedlings for 48 h with a 0.2% colchicine solution… Colchicine treatments were applied to the apical meristem of forty ‘P163’ seedlings immediately after cotyledons opened. Six colchicine-treated seedlings [i.e. ‘treating a female microtubule inhibitor treated plant’] that were estimated to be tetraploids were then treated with silver thiosulfate [i.e. ‘with an ethylene blocker’]…to produce selfed seeds. [i.e. producing both male and female reproductive organs on a single plant and ‘fertilizing…the female microtubule inhibitor treated plant with the pollen and producing seeds and/or offspring’]” This very specifically teaches the method of claims 3, 6 & 12-13 in the instant application.
On page 3, par. 2, Crawford does not specifically indicate they are treating genetically female plants of ‘P163’ verbatim; however, they indicate they are treating 40 seedling plants. A population of seedling Cannabis plants are inherently a mix of male and female plants, or are entirely female in the case of feminized seed. It is expected, and would be inherent, that at least one or more plants from a given seed-grown population of dioecious plants would be genetically female, absent evidence to the contrary. Crawford simply does not state this obvious and inherent quality of their plant material because presumably it is so obvious to those skilled in the art as to not warrant reporting. In a study of female flower production/yield, one would use female plants.
Similarly, Crawford does not specifically use the slang term or word ‘marijuana’ in their academic research study. However, in section 4.2, par.2 they teach that their research would be applicable in other usage or market classifications of Cannabis, other than hemp, as, “U.S. federal regulations currently limit industrial hemp products to a total THC(A) concentration of 0.3%; therefore, it is important that increases in dominant cannabinoid content do not simultaneously push the total THC(A) content over this threshold. Future studies involving larger population sizes, more genotypes, C. sativa containing other dominant cannabinoids such as CBD or THC, and those investigating the effects of environmental factors on polyploid performance would help elucidate any additional benefits of ploidy manipulation in C. sativa for cultivar development.” Crawford thus, without resorting to using the word ‘marijuana’ verbatim, explicitly describes use of their same method in categories of Cannabis sativa other than the classification they define as ‘hemp’. “C. sativa containing other dominant cannabinoids such as…THC…” Such alternate classifications would include ‘marijuana’, as claim 9 of the instant application states, or any other name by which Cannabis sativa could be commonly known or called.
Crawford clearly anticipates claims 3, 6, 9 & 12-13 of the instant application. The method of claim 3 involves treating of a female plant with chemicals to inhibit microtubules and block ethylene in order to generate self-pollinated seed or offspring. Crawford teaches all limitations of this in their disclosure, specifically with reference to their ‘P163’ inbred line of Cannabis and its tetraploid derivatives. Moreover, they describe self-pollination of the specific, individual ‘P163’ plants treated with colchicine and silver thiosulfate. They specifically teach that such a method could apply to any category of Cannabis, whether known as ‘marijuana’ or any other common name. Because all limitations of claims 3, 6, 9 & 12-13 are previously taught by Crawford, the methods are anticipated. Claims 3, 6, 9 & 12-13 are therefore rejected in their entirety.
Claims 2 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lubberstedt (U.S. Patent Application US 20220002739 A1; Published: 01-06-2022).
Claim 2 claims self-fertilizing a haploid plant to create an offspring which is diploid. Without further intervention between those two steps, genetically, a haploid plant would only be able generate diploid offspring if its chromosomes were spontaneously doubled through some natural mechanism occurring between the time of self-fertilization and ‘creation of the offspring’. This phenomenon is known to occur in plants through occasional non-reduction of cells during meiosis or early stages of mitosis and is commonly called spontaneous doubling by those skilled in the art of plant breeding. The Applicant refers to this spontaneous doubling in their specification on [0030] and [0092]. Claim 15 narrows from 2 to further limit to “100% diploid” offspring.
The method of using spontaneous doubling in a directed manner to intentionally generate diploid (more correctly, doubled-haploid) plants has been previously taught in maize, in detail, by Lubberstedt in ‘Methods and Compositions for Generating Doubled Haploid Plants and Use of Same in Breeding’. Lubberstedt describes [0007, line 11], “the present invention provides and includes a method for screening and selecting a maize plant…with spontaneous haploid genome doubling.” Claim 1 of their application is, “1. A method of plant breeding for spontaneous haploid genome doubling comprising….a source plant…comprises one or more mutations that confer increased spontaneous haploid genome doubling…crossing said parent plant with itself or a second plant, so that the spontaneous haploid genome doubling…is passed to progeny seed and harvesting progeny seed” and in claim 3, “A plant or plant part produced by the method of claim 1.”
Lubberstedt anticipates claims 2 & 15 of the instant application. The limitations of the method of claim 2 comprise self-fertilizing a haploid plant and creating a diploid offspring. This is met by claim 1 of Lubberstedt which teaches spontaneous doubling as “crossing said parent plant with itself…so that spontaneous haploid genome doubling….is passed to progeny”. The limitation of claim 15 points to “100% diploid” offspring and while Lubberstedt does not use those exact words verbatim, the spontaneous doubling of a haploid as claimed and described by Lubberstedt generates a ‘doubled haploid’ (n + n). Such doubled haploids are equivalent to diploids (2n) in terms of total chromosome number, or genetic complement.
Spontaneous chromosome rearrangement during mitosis or meiosis would generate a range of germlines of varying number chromosomal constitution. The most stable, genetically viable plant or seed resulting from haploid starting material would be the ‘100% diploid’ (2n) individuals produced, whether they are referred to with that exact terminology or simply called diploids. In a practical sense, and evolutionarily, these diploid plants are usually selected naturally as the survivors of such an extreme process of genome rearrangement. Any remaining haploid plants that are not doubled to a diploid state die out or require special intervening propagation because they are not able to regularly complete meiosis due to their singular, imbalanced, complement of the genome (n). Further, any persistent germline surviving such a doubling event and not “100% diploid” would by definition be ‘mixaploid’ (2n + n) or aneuploid.
Because all such limitations of claims 2 & 15 in the instant application are previously taught by Lubberstedt, the method is anticipated and claims 2 & 15 are rejected in their entirety.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 14 is rejected under 35 U.S.C. 103 as being obvious over Crawford in view of Lubberstedt. Claim 14 limits to “spontaneous doubled haploids” from the broader scope of claim 1 “doubling a plant’s ploidy”.
Crawford anticipates chromosome manipulation to create polyploid varieties of Cannabis [p.2 par.5] and motivations for such, as described above. Because of this, claim 1 is anticipated by Crawford, as discussed previously, which clearly discloses doubling chromosomes and generation of polyploids in plants, more specifically, Cannabis.
Crawford does not mention ‘spontaneously doubled haploids’ to achieve the desired results of claim 14 in the instant application, or teach methods of doubling chromosomes in haploid plants without use of chemical agents.
However, this is remedied by Lubberstedt who teaches self-pollination of haploids to generate doubled haploid (n + n = 2n) maize plants. In their abstract they describe, “present invention generally provides methods to generate plants with a high frequency of spontaneous haploid genome doubling for use in doubled haploid production.” Further, they point to the limitations of the chemically-induced processes used by Crawford and others and why there would be motivation to seek an alternative [0004], “The main bottleneck for making DH [doubled haploid] technology…more effective in terms of labor and costs is the genome doubling step. In most DH programs, a chemical treatment based on colchicine is used for genome doubling.” Further, they state benefits of intentional use of spontaneous haploid genome doubling as [0006], “Implications…are substantial. It would remove greenhouse costs, transplanting, labor of treating haploids, and eliminate the need for the use of colchicine as a hazardous doubling agent. Putative haploids could be directly sown into the field without the need of genome doubling and associated costs.”
They describe the specific inventive method in the detailed description comprising [0087-0088], “The [1n, haploid] plants of the present invention undergo spontaneous haploid genome doubling [n + n, doubled haploid] at a high frequency and do not require the use of a genome doubling agent. The doubled haploid plant is allowed to mature and the resulting doubled haploid seeds when planted will produce [n + n = 2n, functionally diploid] homozygous plants (also called inbred plant or lines). These inbred lines are the materials that breeders utilize to pursue their hybrid development programs.”
The commercial and economic value of suggested improvements of not requiring a microtubule inhibitor described by Lubberstedt would be readily apparent to one interested in producing polyploid plants of any species, including Cannabis which was the focus of Crawford’s disclosure. Researchers working in this field typically have specialized Masters or Doctoral level degrees in applied genetics and would plainly see the advantages of spontaneously doubled haploids over chemically-based approaches to generating polyploids. The shortcoming of Crawford’s approach in relying on chemical mutagens to double chromosomes, and the clear arguments for and describing an alternate non-chemical system by Lubberstedt, would be obvious suggestions to adopt spontaneous doubling, where technically feasible.
Because of these reasons, it would be obvious to one skilled in the art of plant breeding to use the disclosure provided by Crawford with the teachings of Lubberstedt to claim a generic method of ‘doubling a plant’s ploidy’ utilizing the a plant with ‘spontaneously doubled haploids’, as previously described in maize by Lubberstedt. Because of this claim 14 is rejected as obvious over the prior art.
Response to Arguments
Applicant’s arguments filed 08-18-2025 have been fully considered but are not persuasive.
Regarding claims 2, 5, 7 & 11 being rejected on grounds of 112a scope of enablement, Applicant has amended claim 2 to specify “…a single set of chromosomes; doubling the haploid plant’s ploidy…” and argues that the claim is limited to “a type of crop plant”. The amendments to claim 2, which restate definitions of a ‘haploid plant’ and ‘ploidy that is diploid’, fail to address the reason for rejection, which is that the claim language is directed to “a haploid plant” and “an offspring plant” which encompasses potentially any and all plants. No indication of species, Cannabis or otherwise, is recited as a limitation of the claim.
Given broadest reasonable interpretation, the claim as currently written would encompass methods applicable to any and all plant species. It is known in the art that techniques and methods to generate and/or manipulate haploid and double-haploid germplasm are technically complex and often genotype-specific. Any claim(s) to a method which would be enabled for potentially any and all plants would require adequate support in the form of specific technical details enabling such a broad scope.
However, to add clarity to the rejection, the wording of the original 112a scope of enablement rejection from office action dated 02-018-2025 has been streamlined. This is to highlight the scope of claim 2 being drawn to potentially any and all plants, which is not supported by the written description, and clarify that rejection of claims 5, 8 & 11 follow as dependents of the rejected claim 2.
Applicant’s written description clearly does not enable one to make and use methods of doubled-haploid production in any and all plants. Moreover, there are substantial gaps in their disclosure of how one would make and use such techniques even within the very narrow and specific Cannabis germplasm described.
Because of this, the previous rejection is maintained.
Regarding claim 1 being rejected on grounds of 101 as being drawn to a natural phenomenon, Applicant argues “the step of self-fertilizing a plant having previously its ploidy doubled does not naturally occur in nature”. However, this statement is factually incorrect.
Applicant’s claim recites a method of “stabilizing ploidy comprising: doubling a plant’s ploidy; self-fertilizing the doubled plant; and creating an offspring with a germline ploidy…of…doubled ploidy…”.
As written, this would encompass any naturally occurring polyploid plant that arose from chromosome doubling via self-pollination.
Such polyploidization occurs naturally in wild plant populations, and more specifically, is known to occur in autogamous, self-pollinating (i.e. self-fertilizing) crop species. It is well-documented that plants can form polyploids through unreduced gametes during meiosis, and/or achieve genome ‘stabilization’ through polyploidization following aberrant chromosome sorting or cell division. Such stabilizing through doubling is often the causative event in the evolution of new plant species. Most notably this is documented in self-pollinating small grains or wheat relatives, being widely known and supported by published research. This fact was cited on page 12 of the previous rejection dated 02-18-2025, and is repeated in unmodified form in the rejection above, and summarized here:
“In their figure 1 [of Stuessy], they provide summary depiction of the method of formation of a stable tetraploid (4n) plants from parental diploids (2n). … They state, “surveys of levels of polyploidy among flowing plants have estimated that at least 35% of present species are recent polyploids.” [p.1690, par.1] Stuessy also points to self-pollination of plants as a regular aspect in the widespread generation of autopolyploid species as, “The former [autopolyploidy] is the simplest way for a chromosomal set to be multiplied, and this occurs within the same individual plant…by crosses [pollination] within the same population (or individual) [self-pollination] involving unreduced gametes, yielding polyploid offspring.” [p.1690, par.2]
…
Within major crops, Peng-Zheng points to formation of polyploids in multiple domesticated crops, notably emmer wheat Triticum turgidum ssp. dioccon and its relatives. [p.345, Introduction, par.1] Emmer wheat has been extensively studied by crop geneticists in its own right, as well as for its relation to hexaploid bread wheat, one of the world’s most important domesticated food crops. Formation of emmer wheat is clearly ascribed to genome doubling of diploid Triticum uratu and an unknown ancestral species which led to formation of the stable tetraploid under cultivation [Peng-Zheng, p.345, Introduction, par.2].”
As written, Applicant’s claim 1 would encompass any autogamous polyploid species or crop resulting from a chromosome doubling event. According to research literature, this could include a large portion (up to ~1/3) of global plant species as well as several of humanity’s major extant food crops. The claim, as written, would also potentially read on natural evolutionary mechanisms including methods of chromosome doubling and/or genome stabilization in self-pollinating plant taxa.
Applicant argues that self-fertilization of polyploid plants does not occur in nature, but many plants, including polyploids, are self-pollinating (autogamous) and therefore such a statement is factually incorrect.
Because of this, the previous rejection is maintained.
Regarding claims 1, 3-4, 6-7, 9-10 & 12-13 being rejected under 102 as anticipated; Applicant makes two arguments, (1) regarding claim language directed to ‘diploid’ and (2) regarding mapping of claim limitations.
In reference to claim 1 Applicant states, “it appears that the Examiner has inserted the term “diploid” as being synonymous with tetraploid, which the Applicant respectfully asserts is incorrect”.
Applicant’s claim 1 reads:
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Applicant does not make any reference to diploids, or use the term “diploid” in their claim language.
Applicant refers to “doubling a plant’s ploidy” to create a germline “of a desired doubled ploidy”. Doubling a plant’s chromosome count (i.e. ploidy) can occur in any manner of polyploid variations.
This would include doubling of a haploid (n) to a diploid (2n); doubling of a diploid (2n) to a tetraploid (4n); doubling of an imbalanced zygote/mixaploid tissue (3n) to a hexaploid (6n); doubling of a tetraploid (4n) to an octoploid (8n); or any other of the various genome stabilizing mechanisms naturally observed