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 1-4, 7-8, 12-13 are pending and are examined herein.
Claim Objections
Claims 1 and 12 are objected to because of the following informalities:
Claim 1 is objected to because it is missing an "and" before step (b).
Claim 12 recites 3 motifs that are longer than 3 amino acids in length. However, there are
no sequence identifiers following the motif recitation, which are disclosed in the
Sequences Listing as SEQ ID NOs: 130-132. The claim should be amended to include the SEQ
ID NO.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 7-8 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.
Claim 7 is rejected as being indefinite for the recitation of “derivative, orthologue, paralogue or homologue” polypeptides.
Regarding “derivative”, the Specification does not provide a standard for the “deriving” or the amount of deletion, addition, or substitution of amino acids or the sites in the native protein. Therefore, it is unclear which polypeptides fall within the scope of the claims.
Regarding “orthologue, paralogue or homologue”, the Specification states ““Orthologues” and “paralogues” encompass evolutionary concepts used to describe the ancestral relationships of genes. Paralogues are genes within the same species that have originated through duplication of an ancestral gene; orthologues are genes from different organisms that have originated through speciation, and are also derived from a common ancestral gene.”
However, the Specification has not provided any definition regarding the boundary—or distinctive features—that would define to what extent these terms would encompass. For example, it is unclear whether any particular amino acid sequence would be consisted an “orthologue, paralogue or homologue”. The state of art speaks to confusing usages of the terms. For example, in a publication the experts in the field commented that “widespread confusion about the meaning of these terms (homologs, orthologs, etc) has not gone unnoticed” (Jensen, Genome biology 2.8 (2001): interactions1002-1; at p. 1, 1st paragraph); and that misuse of the terms are quite common in the field (p. 2, left column, 2nd paragraph). Moreover, Jensen teaches that in order to correctly interpret the terms homolog and ortholog, one must appraise the evolutionary relationship among the sequences (see illustration in Figure 1). However, the instant Specification does not teach anything regarding the evolutionary relationships of the “orthologue, paralogue or homologue”. Furthermore, as Jensen has pointed out, the functional distinctions associated with divergence of sequence are highly complex (p. 2, right column, 2nd paragraph). Yet, the terms are originated within the evolutionary biology community and strictly refer to sequence divergence associated with either speciation or gene duplication, respectively, and do not have either implicit or explicit functional implications (p. 2, right column, 3rd paragraph), and therefore, whether two contemporary proteins are orthologs cannot be determined with certainty (p. 3, left, 1st paragraph).
Thus, in view of the lack of definition from the Specification, the often misuses and confusions in the state of art, and the uncertainty in determining if two proteins are orthologs, the scope encompassed by the claim arisen from the usage of the “orthologue, paralogue or homologue” is unclear.
Claim Rejections - 35 USC § 102
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, and 7-8, are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Tranel et al (US Patent US7671254B2; issued 2 March 2010).
Claim 1 is drawn to a method for controlling undesired vegetation at a plant cultivation site, the method comprising the steps of: providing a plant that comprises a nucleotide sequence encoding a wild-type PPO or a mutated-PPO which is resistant or tolerant to a “PPO inhibiting herbicide”, and which comprises the amino acid sequence of SEQ ID NO: 1, ……, or 117, or a variant thereof; applying to said site an effective amount of said herbicide.
Tranel disclose a wild-type PPO sequence set forth as SEQ ID NO: 16 which is completely identical to instant SEQ ID NO: 1.
Tranel also disclose a wild-type PPO sequence set forth as SEQ ID NO: 14 which could be counted as a “variant” of the instant SEQ ID NO: 37, for example.
Tranel further disclose mutating the wild-type sequence such that one glycine at position 210 or 211 is deleted, wherein the deletion results in herbicide resistance to a PPO inhibiting herbicide (claim 1). The reference further discloses a method for producing an herbicide resistant plant comprising introducing a nucleic acid encoding said mutant into a plant, plant tissue, or plant cell and selecting for the presence of the nucleic acid molecule, and optionally regenerating a plant from the plant cell or plant tissue, whereby an herbicide resistant plant is produced (claim 14); and a method for controlling weeds comprising planting said plants comprising said nucleic acid molecule and treating the plants with a PPO-inhibiting herbicide, whereby growth of weeds is controlled (claim 23) - since this method is controlling weeds, it is understood that the method occurs in at a site where weeds (undesired vegetation) would occur, like a field.
Therefore, Tranel disclose a method for controlling undesired vegetation at a plant cultivation site comprising providing a plant having a mutated PPO relative to instant SEQ ID NO: 1 that provides tolerance to a PPO-inhibiting herbicide and applying an effective amount of a PPO-inhibiting herbicide to the site to control the undesired vegetation (as claimed in instant claim 1).
Tranel further discloses crossing a resistant A. tuberculatus (which comprises the G210 deletion) with a sensitive plant (comprising WT SEQ ID NO: 16) to generate a segregating F1 population. Populations of the S-parent, R-parent, and F1-progeny were treated with an herbicide mixture of lactofen, imazomox, and atrazine, a PPO, ALS, and PSII inhibitor, respectively (Examples 4-5).
Therefore, Tranel et al disclose treating a plant cultivation site comprising a plant comprising the wild-type PPO of instant SEQ ID NO: 1 and a plant comprising a mutant PPO with an effective amount of PPO-inhibiting herbicide (as encompassed by instant claim 1) and in conjunction with one or more additional herbicides (as encompassed by instant claim 4).
Accordingly, the instantly claimed invention is anticipated by Tranel et al.
US-11-466-662-16
; Sequence 16, Application US/11466662
; Patent No. 7671254
; GENERAL INFORMATION:
; APPLICANT: Patzoldt, William
; APPLICANT: Hager, Aaron
; APPLICANT: Tranel, Patrick
; TITLE OF INVENTION: Herbicide Resistance Gene, Compositions and Methods
; FILE REFERENCE: 46-05
; CURRENT APPLICATION NUMBER: US/11/466,662
; CURRENT FILING DATE: 2006-08-23
; PRIOR APPLICATION NUMBER: US 60/807,780
; PRIOR FILING DATE: 2006-07-19
; PRIOR APPLICATION NUMBER: US 60/711,204
; PRIOR FILING DATE: 2005-08-25
; NUMBER OF SEQ ID NOS: 54
; SOFTWARE: PatentIn version 3.3
; SEQ ID NO 16
; LENGTH: 534
; TYPE: PRT
; ORGANISM: Amaranthus tuberculatus
US-11-466-662-16
Query Match 100.0%; Score 2744; DB 4; Length 534;
Best Local Similarity 100.0%;
Matches 534; Conservative 0; Mismatches 0; Indels 0; Gaps 0;
Qy 1 MVIQSITHLSPNLALPSPLSVSTKNYPVAVMGNISEREEPTSAKRVAVVGAGVSGLAAAY 60
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 1 MVIQSITHLSPNLALPSPLSVSTKNYPVAVMGNISEREEPTSAKRVAVVGAGVSGLAAAY 60
Qy 61 KLKSHGLSVTLFEADSRAGGKLKTVKKDGFIWDEGANTMTESEAEVSSLIDDLGLREKQQ 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 61 KLKSHGLSVTLFEADSRAGGKLKTVKKDGFIWDEGANTMTESEAEVSSLIDDLGLREKQQ 120
Qy 121 LPISQNKRYIARDGLPVLLPSNPAALLTSNILSAKSKLQIMLEPFLWRKHNATELSDEHV 180
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 121 LPISQNKRYIARDGLPVLLPSNPAALLTSNILSAKSKLQIMLEPFLWRKHNATELSDEHV 180
Qy 181 QESVGEFFERHFGKEFVDYVIDPFVAGTCGGDPQSLSMHHTFPEVWNIEKRFGSVFAGLI 240
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 181 QESVGEFFERHFGKEFVDYVIDPFVAGTCGGDPQSLSMHHTFPEVWNIEKRFGSVFAGLI 240
Qy 241 QSTLLSKKEKGGENASIKKPRVRGSFSFQGGMQTLVDTMCKQLGEDELKLQCEVLSLSYN 300
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 241 QSTLLSKKEKGGENASIKKPRVRGSFSFQGGMQTLVDTMCKQLGEDELKLQCEVLSLSYN 300
Qy 301 QKGIPSLGNWSVSSMSNNTSEDQSYDAVVVTAPIRNVKEMKIMKFGNPFSLDFIPEVTYV 360
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 301 QKGIPSLGNWSVSSMSNNTSEDQSYDAVVVTAPIRNVKEMKIMKFGNPFSLDFIPEVTYV 360
Qy 361 PLSVMITAFKKDKVKRPLEGFGVLIPSKEQHNGLKTLGTLFSSMMFPDRAPSDMCLFTTF 420
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 361 PLSVMITAFKKDKVKRPLEGFGVLIPSKEQHNGLKTLGTLFSSMMFPDRAPSDMCLFTTF 420
Qy 421 VGGSRNRKLANASTDELKQIVSSDLQQLLGTEDEPSFVNHLFWSNAFPLYGHNYDSVLRA 480
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 421 VGGSRNRKLANASTDELKQIVSSDLQQLLGTEDEPSFVNHLFWSNAFPLYGHNYDSVLRA 480
Qy 481 IDKMEKDLPGFFYAGNHKGGLSVGKAMASGCKAAELVISYLDSHIYVKMDEKTA 534
||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 481 IDKMEKDLPGFFYAGNHKGGLSVGKAMASGCKAAELVISYLDSHIYVKMDEKTA 534
Claims 1-4, 7-8, and 12-13 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Hutzler, et al (US PGPUB US20150252379A1; Filed on Dec. 16, 2010).
Claims 1 and 7 are summarized above.
Claims 2 and 12 are drawn to the method according to claim 1, wherein the mutated-PPO comprises one or more of the following:
a) the amino acid at Mutated-site 1 corresponding to Arg128 of SEQ ID NO: 1 is Leu, Ala, Val, Ile, Met, Tyr, Gly, Asn, Cys, Phe, Ser, Thr, Gln, or His;
b) the amino acid at Mutated-site 4 corresponding to Leu397 of SEQ ID NO: 1 is Ala, Arg, Val, Ile, Met, His, Lys, Asp, Glu, Ser, Thr, Asn, Gln, Cys, Gly, Pro, Phe, Tyr, or Trp;
c) the amino acid at Mutated-site 5 corresponding to Phe420 of SEQ ID NO: 1 is Ala, Leu, Val, Ile, Met, His, Lys, Asp, Glu, Ser, Thr, Asn, Gln, Cys, Gly, Pro, Arg, Tyr, or Trp.
In summary, the mutations are one or more of R128 (which is position 5 of Motif 1 as recited in claims 12-13), L397 (pos. 2 of Motif 2, claims 12-13), and F420 (pos. 4 of Motif 3, claims 12-13) relative to SEQ ID NO: 1.
The claims are broadly drawn to a method for controlling undesired vegetation comprising applying an herbicide to a site comprising a plant comprising a wild-type PPO or a mutated PPO, wherein the wild-type PPO is SEQ ID NO: 1, 2, …… or 117, wherein the mutated PPO comprises R128, L397, and/or F420 (numbering according to SEQ ID NO: 1); a plant expressing the mutagenized or recombinant mutated PPO.
Hutzler discloses a method for controlling undesired vegetation at a plant cultivation site comprising providing at said site a plant comprising a wild-type or mutated PPO resistant or tolerant to a benzoxazinone-derivative herbicide (a PPO-inhibiting herbicide) and applying an effective amount of said herbicide (claim 1); wherein the nucleotide sequence comprises SEQ ID NO: 1 (which encodes SEQ ID NO: 2) (claim 2); wherein the plant comprises one or more additional heterologous nucleic acids encoding an herbicide tolerance enzyme (claim 3); wherein the benzoxazinone-derivative herbicide is applied in conjunction with one or more other PPO targeting herbicides (claim 4); a nucleic acid encoding a mutant PPO comprising one or more mutations of Arg128, Leu397, and Phe420 (claim 11); a transgenic plant transformed with a wild-type or mutant PPO nucleic acid that results in increased tolerance to a benzoxazinonederivative herbicide (claim 12), wherein the nucleic acid encodes a mutant PPO comprising one or more mutations of Arg128, Leu397, and Phe420 (claim 14); a plant that expresses a mutagenized or recombinant mutant PPO comprising SEQ ID NO: 2 modified at one or more positions of Arg128, Leu397, and Phe420 (claim 16); a seed produced by said plant that is true breeding for the increased resistance to the benzoxazinone-derivative herbicide ( claim 17).
SEQ ID NO: 2 of Hutzler shares 100% identity with instant SEQ ID NO: 1 (see alignment below). Therefore, the mutations of Arg128, Leu397, and Phe420 are identical to the instantly claimed mutations.
Hutzler further discloses the preferred substitutions for the mutations of Arg128, Leu397, and Phe420. Table 3a provides the preferred mutation embodiments of Arg128[L/AN], Leu397[ AN /I], and Phe420[M/C/I/Y /W]; however, additional substitutions include Arg128[L/AN/I/F/Y/D/N], Leu397[AN/I/N/D/T], and Phe420[M/C/I/Y/W/L/T]. Additional preferred embodiments comprise the combination of these mutations: Arg 128 [L/ A/V] +Phe420[M/C/I] (Table 3b ). Another preferred embodiment comprises a mutant PPO differing from SEQ ID NO: 2 at one or more positions of 128, 175,209,210,295,296, 334, 353, 383, 384,397,398,399,400,402,403,404,405,420, and 439 (pg. 38, Ins. 5-7).
Hutzler further discloses transforming soybean with a vector comprising the mutated PPO sequence and a second resistance marker AHAS that provides tolerance to a second herbicide. The transgenic plants are then provided with imazapyr (herbicide) for selection followed by an application of a benzoxazinone-derivative herbicide (Example 4).
Accordingly, having disclosed a mutant PPO as compared to instant SEQ ID NO: 1 having a mutation at one or more of positions 128, 397, and 420 that results in enhanced herbicide tolerance to a PPO-inhibiting herbicide, plants and seeds comprising said mutant PPO, and a method of applying one or more herbicides to a plant cultivation site comprising said plants or seeds, Hutzler anticipates the claimed invention.
; Sequence 2, Application US/13994374
; Publication No. US20150252379A1
; GENERAL INFORMATION
; APPLICANT: BASF SE
; TITLE OF INVENTION: PLANTS HAVING INCREASED TOLERANCE TO HERBICIDES
; FILE REFERENCE: PF71580
; CURRENT APPLICATION NUMBER: US/13/994,374
; CURRENT FILING DATE: 2013-06-14
; PRIOR APPLICATION NUMBER: US 61/423604
; PRIOR FILING DATE: 2010-12-16
; PRIOR APPLICATION NUMBER: EP 10195296.8
; PRIOR FILING DATE: 2010-12-16
; NUMBER OF SEQ ID NOS: 46
; SOFTWARE: PatentIn version 3.4
; SEQ ID NO 2
; LENGTH: 534
; TYPE: PRT
; ORGANISM: Amaranthus tuberculatum
US-13-994-374-2
Query Match 100.0%; Score 2740; DB 12; Length 534;
Best Local Similarity 100.0%;
Matches 533; Conservative 0; Mismatches 0; Indels 0; Gaps 0;
Qy 1 MVIQSITHLSPNLALPSPLSVSTKNYPVAVMGNISEREEPTSAKRVAVVGAGVSGLAAAY 60
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 1 MVIQSITHLSPNLALPSPLSVSTKNYPVAVMGNISEREEPTSAKRVAVVGAGVSGLAAAY 60
Qy 61 KLKSHGLSVTLFEADSRAGGKLKTVKKDGFIWDEGANTMTESEAEVSSLIDDLGLREKQQ 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 61 KLKSHGLSVTLFEADSRAGGKLKTVKKDGFIWDEGANTMTESEAEVSSLIDDLGLREKQQ 120
Qy 121 LPISQNKRYIARDGLPVLLPSNPAALLTSNILSAKSKLQIMLEPFLWRKHNATELSDEHV 180
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 121 LPISQNKRYIARDGLPVLLPSNPAALLTSNILSAKSKLQIMLEPFLWRKHNATELSDEHV 180
Qy 181 QESVGEFFERHFGKEFVDYVIDPFVAGTCGGDPQSLSMHHTFPEVWNIEKRFGSVFAGLI 240
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 181 QESVGEFFERHFGKEFVDYVIDPFVAGTCGGDPQSLSMHHTFPEVWNIEKRFGSVFAGLI 240
Qy 241 QSTLLSKKEKGGENASIKKPRVRGSFSFQGGMQTLVDTMCKQLGEDELKLQCEVLSLSYN 300
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 241 QSTLLSKKEKGGENASIKKPRVRGSFSFQGGMQTLVDTMCKQLGEDELKLQCEVLSLSYN 300
Qy 301 QKGIPSLGNWSVSSMSNNTSEDQSYDAVVVTAPIRNVKEMKIMKFGNPFSLDFIPEVTYV 360
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 301 QKGIPSLGNWSVSSMSNNTSEDQSYDAVVVTAPIRNVKEMKIMKFGNPFSLDFIPEVTYV 360
Qy 361 PLSVMITAFKKDKVKRPLEGFGVLIPSKEQHNGLKTLGTLFSSMMFPDRAPSDMCLFTTF 420
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 361 PLSVMITAFKKDKVKRPLEGFGVLIPSKEQHNGLKTLGTLFSSMMFPDRAPSDMCLFTTF 420
Qy 421 VGGSRNRKLANASTDELKQIVSSDLQQLLGTEDEPSFVNHLFWSNAFPLYGHNYDSVLRA 480
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 421 VGGSRNRKLANASTDELKQIVSSDLQQLLGTEDEPSFVNHLFWSNAFPLYGHNYDSVLRA 480
Qy 481 IDKMEKDLPGFFYAGNHKGGLSVGKAMASGCKAAELVISYLDSHIYVKMDEKTA 534
||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 481 IDKMEKDLPGFFYAGNHKGGLSVGKAMASGCKAAELVISYLDSHIYVKMDEKTA 534
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4 and 13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 10100329. Although the claims at issue are not identical, they are not patentably distinct from each other because:
The patented claims are drawn to a method for controlling undesired vegetation at a plant cultivation site, the method comprising:
a) providing, at said site, a herbicide-tolerant plant that comprises a nucleic acid encoding a herbicide-tolerant mutant protoporphyrinogen oxidase (PPO) enzyme comprising an amino acid substitution at a position corresponding to position Leu397 of SEQ ID NO:2 and an amino acid substitution at a position corresponding to position Phe420 of SEQ ID NO:2, wherein the amino acid corresponding to position Leu397 of SEQ ID NO:2 is substituted with aspartate, glutamate, or glutamine, and wherein the amino acid corresponding to position Phe420 of SEQ ID NO: 2 is substituted with valine or methionine; and b) applying to said site an effective amount of a PPO-inhibiting herbicide.
Claims 1-4, 7-8, 12-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 5-11, and 13-24 of U.S. Patent No. 10041087. Although the claims at issue are not identical, they are not patentably distinct from each other.
Claims 1-4, 7-8, 12-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2-3, 8-16 of U.S. Patent No. 11572571. Although the claims at issue are not identical, they are not patentably distinct from each other.
The patented claims are drawn to methods and plants comprising mutated protoporphyrinogen oxidase (mut-PPO) which is a variant of SEQ ID NO: 46 having at least 75% identity to SEQ ID NO: 46 and comprises an amino acid substitution at a position corresponding to position Leu397 to aspartate, glutamate, or glutamine substitution and a Phe420 to valine or methionine substitution, and applying to said site an effective amount of a benzoxazinone-derivative herbicide.
The amino acid sequences and substitutions are identical to those recited in the instant claims.
Claims 1-4 and 13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 11274313. Although the claims at issue are not identical, they are not patentably distinct from each other.
The patented claims are drawn to methods of weed control comprising providing, at said site, a herbicide-tolerant plant that comprises a nucleic acid encoding a herbicide-tolerant mutant protoporphyrinogen oxidase (PPO) enzyme comprising R128A and F420M/I/L substitutions reference to SEQ ID NO:2 and applying a benzoxazinone-derivative herbicide.
The amino acid sequences and substitutions are identical to those recited in the instant claims.
Claims 7-8 and 12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2-3 and 8-10 of U.S. Patent No. 11441154. Although the claims at issue are not identical, they are not patentably distinct from each other.
Claims 1-4, 7-8 and 12-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 of U.S. Patent No. 11306322. Although the claims at issue are not identical, they are not patentably distinct from each other.
Claims 1-4, 7-8, 12-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 7-17, 21-22, and 27-28 of U.S. Patent No. 10087460. Although the claims at issue are not identical, they are not patentably distinct from each other.
Claims 1-4, 7-8, 12-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 10968462. Although the claims at issue are not identical, they are not patentably distinct from each other.
The patented claims are drawn to a method and plant comprising the mutated PPO and mutations as recited in the instant claims, and further an exogenous polynucleotide encoding a CYP450 polypeptide. Therefore, the patented claims are drawn to a subgenus of the instantly claimed broad genus.
Claims 1-4, 7-8, 12-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 6-13, and 16-18, of U.S. Patent No. 10982227. Although the claims at issue are not identical, they are not patentably distinct from each other.
Claims 1-4 and 13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No. 11149030. Although the claims at issue are not identical, they are not patentably distinct from each other.
The patented claims are drawn to methods of weed control, comprising applying PPO herbicide to plants comprising PPO polypeptide tolerant to the herbicide, wherein the PPO protein has the mutations as described in the instant claims. Although the patented claims recite specific herbicides that is not recited in the instant claims, such belong to a subgenus of PPO herbicides of the broader genus of the instant claims.
Claims 7-8 and 12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 4-7 of U.S. Patent No. 10392630. Although the claims at issue are not identical, they are not patentably distinct from each other.
Claims 1-4 and 13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 11479786. Although the claims at issue are not identical, they are not patentably distinct from each other.
In summary, various claims of the instant application are rejected under double patenting over U.S. Patent Nos 10100329, 10041087, 11572571, 11274313, 11441154, 11306322, 10087460, 11149030, 10392630, 10982227, 11479786, and 10968462.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WEIHUA FAN whose telephone number is (571)270-0398. The examiner can normally be reached Monday-Friday, 9-5.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amjad A Abraham can be reached at (571) 270-7058. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
WEIHUA . FAN
Primary Examiner
Art Unit 1663
/WEIHUA FAN/Primary Examiner, Art Unit 1663