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 1-9 and 13-15 are pending and being examined.
Claim Objections
Claim 3 is objected to because of the following informalities:
The “period” (“full stop”) is missing at the end of claim 3. It is suggested to add the period at the end of the sentence, as recited in claim 3. MPEP 608.01(m)
Appropriate correction is required.
Claim Rejections - 35 USC § 103
Claims 1, 3-9 and 13-15 remain rejected under 35 U.S.C. 103 as being unpatentable over Feng et al. (The dihydroflavonol 4-reductase BoDFR1 drives anthocyanin accumulation in pink-leaved ornamental kale, 2021, Theoretical and Applied Genetics, 134:159–169) in view of Liu et al. (Identification of Major Loci and Candidate Genes for Anthocyanin Biosynthesis in Broccoli Using QTL-Seq, 2021, Horticulturae, 7:246) and Jun et al. (The Transcriptional Repressor MYB2 Regulates Both Spatial and Temporal Patterns of Proanthocyandin and Anthocyanin Pigmentation in Medicago truncatulata, 2015, The Plant Cell, 27:2860–2879) and Brassica oleracea ‘Brokali Apollo’ BBC Gardeners' World Magazine (first published on 28 October 2020).
Claim 1 is drawn to an ananthocyanin-free broccoli plant comprising a combination of an inactive MYB2 gene having the sequence of SEQ ID NO: 1 in chromosome 6 and an inactive DFR1 gene having the sequence of SEQ ID NO: 2 in chromosome 9.
Feng et al. teaches that anthocyanins are responsible for the pink, red, purple, or blue appearance of plant tissues in the plant kingdom and distributed in the leaves, petals, curds, leaf-head, and rhizomes (page 159, bridging paragraph between left column and right column) in kale. Feng et al. describes that the DFR1 is the key causal gene in kale (Brassica oleracea), as recited in claim 3, (Gene ID: Bo9g058630; GenBank Accession No. QKO29328.1 in B. oleracea var. capitata) (page 161, right column, para 3, line 5-6) conferring the pink leaf trait (due to accumulation of anthocyanin), by isolating the gene sequences and measuring the transcript levels of the candidate genes Bo9g058630 (encoding DFR1; Gene ID: 106315758, in chromosome 9 and having 100% sequence identity to SEQ ID NO: 2, as recited in claim 1), and Bo6g100940 (encoding MYB2, Gene ID: 106299239, in chromosome 6 and having 100% sequence identity to SEQ ID NO: 1, as recited in claim 1) (bridging paragraph between the last para in the left column and first para in the right column in page 160). Feng et al. describe that the purple leaf trait was mapped to BoMYB2 which is a transcription factor (TF) with a MYB domain (page 160, left column, para 2, line 12-17). Feng et al. also describes silencing the DFR1 gene using virus induced (post-transcriptional or translational) gene silencing, as recited in claim 4, substantially decrease anthocyanin accumulation in kale (abstract, line 15-16), thus, would be making the kale anthocyanin-free, as recited in claim 1.
Liu et al. teaches that accumulation of anthocyanin is caused by the activation of genes including MYB2 gene (page 2, para 1, line 9-10) in broccoli (Brassica oleracea). It indicates that there is a reasonable expectation of success to produce anthocyanin-free broccoli plants by inactivation of the MYB2 gene.
It is noted, however, that kale and broccoli belong to the same genus (Brassica) and the exact same species (oleracea), and they are sexually compatible (as discussed below). The only difference is in variety. Moreover, the source of a gene (a polynucleotide sequence), be it kale or broccoli, would not make any difference so long the sequences (mainly the polypeptide encoded by the polynucleotide sequence), and its regulations remain the same. In other words, a polynucleotide sequence in kale if expressed would produce the same protein and confer the same trait in broccoli too.
It would have been obvious to an ordinarily skilled artisan to inactivate (silence or knock-out) the DFR1 gene, the key causal gene conferring anthocyanin accumulation, as described by Feng et al., in broccoli plants. DFR1 is known to be downstream of (transcriptional repressor) MYB2 signaling pathway (Liu et al., page 2, para 1, line 10-12; Jun et al. page 2863, left column, para 5, line 7-9; page 2863, right column, para 1, line 8-11; and page 2863, right column, para 2, line 1-3). Thus, inactivating, silencing, or knocking-out the DFR1 gene and the MYB2 gene would have been obvious to the artisan.
The ordinarily skilled artisan would have been motivated to inactivate the DFR1 and MYB2 genes to produce anthocyanin-free broccoli (B. oleracea). For example, as recited in instant claim 15, one of ordinary skill in the art would have introgressed the inactive MYB2 and DFR1 genes, as taught by Feng et al., into a broccoli plant. Introgressing genes and desired traits from one variety of a plant species into another has been a long known standard practice in the art. For example, to produce hybrid “Brokali” varieties, e.g., like Brassica oleracea, see “Brokali Apollo” (BBC Gardeners' World Magazine, first published on 28 October 2020). Backcrossing the F1 hybrid plants with one of the desired (elite) parents to introgress specific trait(s) into the desired parent (e.g., a broccoli plant) followed by selfing the backcrossed plant(s) to obtain homozygous inbred line is also a long known standard practice in the art.
Regarding claims 5-7 and 13, Feng et al. describes a 2400-bp insertion resulted in a frameshift mutation that introduced an early stop codon (page 163, right column, para 3, line 23-24; Fig. 2b), which implies that the insertion results in an absence of a functional DFR1 protein.
Regarding claims 8-9, Feng et al. describe producing seeds and using the seedlings for molecular assisted breeding in the plants (page 160, right column, para 1, line 5-8). Moreover, production of seeds on broccoli plants (including anthocyanin-free plants without purple discoloration) and growing the plants are a known standard process in the art and would have been obvious to an ordinarily skilled artisan for various purposes including propagation and breeding.
Regarding claim 14, Feng et al. describes transposon mediated mutagenesis (page 167, right column, para 1, line 1-3).
Response to Applicant’s Arguments
All the arguments by the Applicant submitted on 7/13/2026 are fully considered but not found persuasive.
The Applicant argues, “Feng is limited to kale plants, not broccoli, and thus it is unclear how one of ordinary skill in the art would modify Feng to provide a broccoli plant. In any event, as acknowledged, Feng fails to disclose or suggest an anthocyanin-free plant that includes an inactive MYB2 gene. The combination of inactivated DFRI with inactivated MYB2 as claimed provides an unexpected effect, specifically a broccoli plant that remains green under various environmental conditions, and, especially, cold conditions” (response, p.1, para 3, line 2-7).
The Examiner disagrees. Kale and broccoli belong to the same genus (Brassica) and the exact same species (oleracea), and they are sexually compatible, as discussed above. Moreover, the Applicant is criticizing Feng et al. individually without considering the combination of references. See MPEP 2145 (IV).
Applicant points (Spec, p.4, line 5-7) to an unexpected effect that a broccoli plant remains green under cold conditions. But the relation of that general statement regarding green broccoli that accumulates anthocyanins under cold stress, is not related to the claimed plant. The Applicant is reminded that the Applicant or patent owner bears the burden of establishing a nexus between the objective evidence of nonobviousness and the claimed invention. See MPEP 716.01(b).
Conclusion
No claim is allowed.
THIS ACTION IS MADE FINAL. The 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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J.C.
/Jay Chatterjee/Examiner, Art Unit 1662
/BRATISLAV STANKOVIC/Supervisory Patent Examiner, Art Units 1661 & 1662
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