CTNF 18/894,773 CTNF 97340 DETAILED ACTION Claims 1-28 are pending and examined herein. Notice of Pre-AIA or AIA Status 07-03-aia AIA 15-10-aia The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA. 07-30-03-h AIA Claim Interpretation Claim 12 recites the limitation “wherein the nucleotide sequence: … e) is complementary to the nucleotide sequence of any one of (a) to (d)”. For purpose of examination, “a complementary sequence” is interpreted to mean a sequence of at least two nucleotides, up to the full length of the original sequence, that is complementary to the nucleic acids according to any of (a)-(d). Claim Rejections - 35 USC § 101 07-04-01 AIA 07-04 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. Claims 1-5 and 11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural phenomenon (natural product) without significantly more. Claim 1 is drawn to method of controlling a Spodoptera pest by contacting it with a Txp40 protein comprising an amino acid sequence with at least 95% sequence identity to SEQ ID NO: 1. Dependent claim 2 is drawn to the method of claim 1 wherein the pest is Spodoptera frugiperda. Dependent claim 3 is drawn to the method of claim 2, wherein the Spodoptera frugiperda is resistant to a Cry or Vip3 protein. Dependent claim 4 is further drawn to the method of claim 3, wherein the Vip3 is a Vip3a protein. Dependent claim 5 is drawn to the method of claim 3, wherein the Cry protein is a Cry1A, Cry1B, Cry1C, Cry1D, Cry1F, Cry1J or Cry2A. Dependent claim 11 is drawn to the method of claim 1, wherein the protein comprises Seq ID NO: 1. SEQ ID NO: 1 is the amino acid sequence of the Txp40 protein isolated from Photorhabdus luminescens , a naturally occurring bacteria (page 4, sequence listing). P. luminescens is a symbiotic bacteria living in the intestines of entomopathogenic nematodes of the family Heterorhabditidae (Rodou et al, 2010, Toxins 2: 1250-1264). Once the nematode infects an insect, the bacteria are released and secrete pesticidal toxins that kill the insect (Rodou et al, page 1251, paragraph 2). Thus SEQ ID NO: 1 is a natural product. Claim 1 recites the additional element of controlling a Spodoptera pest by contacting it with a Txp40 protein. Claim 2 recites the additional element of controlling Spodoptera frugiperda. However, as part of its natural lifecycle, after the nematode infected the insect, P. luminescens would release Txp40 proteins and contact the insect with said proteins, killing it. Gulzar et al teach that Heterorhabditis bacteriophora (a nematode in the family Heterorhabditidae)causes mortality in a Vip3A resistant Lepidopteran (2020, Bragantia 79:281-292). Thus, the claims are not directed to significantly more than a natural phenomenon. Claim 3-5 recites the additional element of controlling Spodoptera frugiperda resistant to various Cry proteins or Vip3a. These insects, are naturally occurring in the wild. As part of its natural lifecycle, as explained above, P. luminescens would come into contact with these insects and, upon entering the body, release Txp40 and kill the insect. Thus, the claims are not directed to significantly more than a natural phenomenon. Claim 11 does not recite any additional elements. Thus the claim is directed to a natural phenomenon. This judicial exception is not integrated into a practical application because the claimed method, in its entirety, reads on the natural phenomenon described above. Claim Rejections - 35 USC § 112 07-30-02 AIA 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. 07-34-01 Claim 25 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 25 recites the limitation "The codon-optimized polynucleotide according to claim 22" in the first line. There is insufficient antecedent basis for this limitation in the claim. Claim 22 does not recite a codon-optimized polynucleotide. Neither does claim 19, the claim from which claim 22 depends. 07-30-01 AIA 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. Written Description 07-31-01 Claims 1-10, 12-13, 15-19, 22-23, and 26-28 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. Claims 1-10, 19, 22-23, 27 and 28 require pesticidal proteins with activity against Spodoptera pests with 95% identity to SEQ ID NO: 1, wherein the amino acid sequence is not SEQ ID NO: 94, 114-115, or SEQ ID NO: 120-122. Claims 12, 15, 16, 17, 18 require nucleic acid molecules encoding pesticidal proteins with activity against Spodoptera pests wherein the nucleotide sequence has as at least 95% identity to any of SEQ ID NOs: 3-5 or 11-30, 32-50, 53-55, or 59-73, encodes an amino acid sequence with 95% identity to SEQ ID NO: 1, wherein the amino acid sequence is not SEQ ID NO: 94, 114-115, or SEQ ID NO: 120-122, encodes a protein that comprises the amino acid sequence of any of SEQ ID NOs: 1, 74-93, 95-113, 116-119, or 123-136, or is a nucleotide sequence that is complementary to any of the above sequences. Claim 13 requires a nucleic acid molecule encoding an insecticidal protein comprising the nucleotide sequence of SEQ ID NOs: 4, 5, or 11-73. Applicant describes SEQ ID NO: 1, which is the amino acid sequence of the Txp40 protein isolated from Photorhabdus luminescens , a naturally occurring bacteria and which has activity against Spodoptera (page 4, sequence listing beginning after ¶0013; page 51, ¶0183-0184, and Table 1, row 3). SEQ ID NO: 1 is encoded by SEQ ID NO: 3; SEQ ID NO: 4 is the E. coli codon-optimized sequence of SEQ ID NO: 3 (specification, page 4, list of sequences beginning after ¶0013). Applicant describes SEQ ID NOs: 74-93 and 95-113 which are single amino acid substitution variants (K/A or R/A substitutions) of SEQ ID NO: 1 and which have activity against Spodoptera (specification, pages 6-7, list of sequences; Table 3 on pages 53-54). These sequences have 99.7% sequence identity to SEQ ID NO: 1 (alignments not included, but please see ABSS Sequence Search Results dated 1 April 2024, SEQ ID NO: 1, Published Applications AA main database, filename: 20260401_154121_us-18-894-773-1.align250.rapbm, results 2-42). These variants are encoded by the nucleotide sequences of SEQ ID NOs: 11-30 and 32-50, respectively (specification, pages 4-5, listing of sequences). Applicant describes SEQ ID NOs: 116-119, 123-125, and 127-129, which are dual amino acid substitution variants (K/A and/or R/A substitutions) of SEQ ID NO: 1 and which have activity against Spodoptera (specification, page 7, list of sequences; Table 4 on page 54). These sequences have 99.3% sequence identity to SEQ ID NO: 1 (alignments not included, but please see ABSS Sequence Search Results dated 1 April 2024, SEQ ID NO: 1, Published Applications AA main database, filename: 20260401_154121_us-18-894-773-1.align250.rapbm, results 43-54). These variants are encoded by the nucleotide sequences of SEQ ID NOs: 53-56, 60-62, and 64-66 (specification, pages 4-5, listing of sequences). Applicant describes SEQ ID NOs: 126 and 130-136 which have between 3 and 6 amino acid substitutions relative to SEQ ID NO: 1 and which have activity against Spodoptera (specification, page 7, list of sequences; Table 4 on page 54). SEQ ID NOs: 126, 131 and 136 have 99% sequence identity to SEQ ID NO: 1; SEQ ID NOs: 130,132, 133 and 134 have between 98.5% and 98.9% identity to SEQ ID NO: 1; and SEQ ID NO: 135 has 97.5% identity to SEQ ID NO: 1 (alignments not included, but please see ABSS Sequence Search Results dated 1 April 2024, SEQ ID NO: 1, Published Applications AA main database, filename: 20260401_154121_us-18-894-773-1.align250.rapbm, results 55-64). These variants are encoded by the nucleotide sequences of SEQ ID NOs: 63 and 67-73 (specification, pages 4-5, listing of sequences). The specification discloses that SEQ ID NOs: 94, 114-115, and 120-122 are not active against Spodoptera frugiperda ( pages 53-54, Tables 3-4). These sequences have 96.7%, 96.7%, 96.4%, 96.4%, 96.1%, and 95.7% identity, respectively to SEQ ID NO: 1. These amino acid sequences are encoded by the nucleotide sequences of SEQ ID NOs: 31, 51-52, and 57-59 . None of the substitution variants claimed by Applicant, i.e. SEQ ID NOs: 74-93, 95-113, 116-119, or 123-136 have less than 97.5% sequence identity to Txp40 protein of SEQ ID NO: 1 (alignments not included, but please see ABSS Sequence Search Results dated 1 April 2024, SEQ ID NO: 1, Published Applications AA main database, filename: 20260401_154121_us-18-894-773-1.align250.rapbm, results 1-64; see also Tables 3-5). Examiner notes that SEQ ID NO: 135 has the greatest number of amino acid substitutions (six), relative to SEQ ID NO: 1 of any of the claimed Txp40 proteins. None of the nucleic acids encoding the substitution variants claimed by Applicant have less than 97.3% sequence identity to a nucleic acid encoding a Txp40 protein with insecticidal activity (see ABSS Sequence Search Results dated 2 April 2024, SEQ ID NO: 72, Published Applications NA main database, filename: 20260402_161928_us-18-894-773-72.align250.rapbm, results 1-62; see also Tables 3-5). Examiner notes that SEQ ID NO: 72 encodes the amino acid sequence of SEQ ID NO: 135, which has the greatest number of amino acid substitutions (six), relative to SEQ ID NO: 1 of any of the claimed Txp40 proteins. Applicant has not described any amino acid sequences with 95-97.4% identity to SEQ ID NOs: 1, and which have insecticidal activity against a Spodoptera insect pest. Applicant has not described any nucleic acids with 95-97.3% identity to 3-5 or 11-30, 32-50, 53-55, or 59-73 and which encode an amino acid which has insecticidal activity against a Spodoptera insect pest. Applicant has not described any polynucleotides of any length (see Claim Interpretation) which are complementary to a nucleotide sequence has as at least 95% identity to any of SEQ ID NOs: 3-5 or 11-30, 32-50, 53-55, or 59-73, are complementary to nucleotide that encodes an amino acid sequence with 95% identity to SEQ ID NO: 1, wherein the amino acid sequence is not SEQ ID NO: 94, 114-115, or SEQ ID NO: 120-122, or are complementary to a nucleotide which encodes an amino acid sequence comprising SEQ ID NOs: 1, 74-93, 95-113, 116-119, or 123-136, wherein said complementary nucleotide sequence has insecticidal activity against a Spodoptera pest. Applicant has not described any domains or motifs that are both necessary and sufficient for an Txp40 protein or variant thereof to have the function of insecticidal activity or which would distinguish a Txp40 protein or variant thereof with as little as 95% sequence identity to SEQ ID NO: 1 with the function of insecticidal activity from polypeptides without said function Amino acid sequences with 95% identity to the 335 amino acid long SEQ ID NO: 1 encompass polypeptides with 16 nucleotide substitutions relative to SEQ ID NO: 1. Polypeptides with 17 amino acid substitutions relative to SEQ ID NO: 1 encompass more than 20 16 (6.55 X 10 20 ) unique polypeptides. Nucleotide sequences with 95% identity to the 1008 nucleotide long SEQ ID NO: 3 encompass nucleotide sequences with 50 nucleotide substitutions relative to SEQ ID NO: 3. Polynucleotides with 50 nucleotide substitutions relative to SEQ ID NO: 3 encompass more than 4 50 (1.26 X 10 30 ) unique polynucleotides. Further, these nucleotide sequences encompass those in which every substitution is in a different codon and in which every substitution results in a codon that encodes a different amino acid relative to the polypeptide encoded by SEQ ID NO:3, i.e. SEQ ID NO: 1. Such nucleotide sequences encompass those that encode polypeptides that have 50 amino acid substitutions relative to the 335 amino acid long polypeptide encoded by SEQ ID NO:3 (SEQ ID NO: 1). Polypeptides with 50 amino acid substitutions encompass more than 20 50 (1.12 X 10 65 ) unique polypeptides. Moreover, such polypeptides would encompass those with 85% identity to SEQ ID NO: 1. The genus of polynucleotides with 95% identity to anyone of SEQ ID NOs: NOs: 4-5 or 11- 30, 32-50, 53-55, or 59-73, would likewise encompass the same vast number of polynucleotides. Furthermore, the genus encompassed by any sequence that is complementary to any one of the claimed polynucleotides set forth above and is at least 2 nucleotides long (see Claim Interpretation), would be even larger still. Thus, the genus of claimed polypeptides, polynucleotides and complements thereof, is exceedingly vast. While Applicant has disclosed a number of species of this genus, it is not sufficiently representative of the breadth of the genus. The decision in AbbVie Deutschland GmbH & Co. v. Janssen Biotech, Inc. 111 USPQ2d 1780 (Fed. Cir. 2014) seems to be germane to the instant case. In Abbvie, an analogy is drawn between a claimed genus and a plot of land (see pages 1789-1791). Using this analogy, the Court offered that “[I]f the disclosed species only abide in a corner of the genus, one has not described the genus sufficiently to show that the inventor invented, or had possession of, the genus. He only described a portion of it.” In addition, while Applicant has specifically excluded the proteins encoded by 94, 114-115, and 120-122 which do not have insecticidal functional against a Spodoptera insect pest, these sequences all have greater than 95% identity to SEQ ID NO: 1. Therefore, there is at least some variability among the genus of proteins encompassed by 95% sequence identity to SEQ ID NO: 1 (and by extension, the polynucleotides which encode them) regarding their insecticidal activity. Regarding claim 13, specifically, the limitations require an insecticidal protein encoded by any one of SEQ ID NOs: SEQ ID NOs: 4, 5, or 11-73. However, as discussed above, SEQ ID NOs: 31, 51-52, and 57-59 encode proteins that do not appear to have insecticidal activity. Furthermore, Applicant has not described the structures (e.g. domains or motifs) that are sufficient and necessary for an Txp40 protein to confer insecticidal activity such that one would not be able to envision which members of the claimed genus of polypeptides, polynucleotides and complementary sequences thereof have the required function and which do not. The prior art does not remedy this deficiency. Kinkar et al (2024, Insect Biochemistry and Molecular Biology 164: 1040545, pp 1-14) discloses that Txp40 comprises two domains, each of which are individually toxic, but that the presence of both results in higher toxicity against larva of the Greater wax moth ( Galleria mellonella ). Kinkar et al further discloses that the structure of Txp40 was not known at the time of filing or prior to the publication of their study (page 1, Abstract; page 2, column 1, paragraph 2-3; page 5, column 1, paragraph 2; page 1, column 1, paragraph 1). Thus, one of skill in the art would not recognize that Applicant was in possession of the necessary common attributes or features of the extremely broad genus claimed in the instant application in view of the disclosed species. Since the disclosure fails to describe the common attributes that identify members of the genus, and because the genus is highly diverse, the described species are insufficient to describe the claimed genus. Therefore, given the lack of written description in the specification with regard to the structural and functional characteristics of the claimed compositions, Applicant does not appear to have been in possession of the claimed genus at the time this application was filed. Enablement 07-31-03 AIA Claim s 1-10, 12-13, 15-19, 22-24, and 26-28 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA), first paragraph, because the specification, while being enabling for a) insect resistant plants and compositions comprising a protein with the sequence of SEQ ID NO: 1, 74-93, 95-113, 116-119, or 123-136, methods for making said plants and compositions, and methods of controlling Spodoptera pests using said protein; and b) insect resistant plants, chimeric genes, nucleic acids, and vectors encoding an insecticidal Txp40 protein which comprise a nucleotide sequence of SEQ ID NOs: 3-5 or 11- 30, 32-50, 53-55, or 59-73 or which comprise a nucleotide sequence that encodes a protein with the sequence of SEQ ID NO: 1, 74-93, 95-113, 116-119, or 123-136 , does not reasonably provide enablement for insect resistant plants and compositions comprising a protein with 95% identity to SEQ ID NO: 1, 74-93, 95-113, 116-119, or 123-136 methods for making said plants and compositions, and methods of controlling Spodoptera pests using said proteins nor does it reasonably provide enablement for insect resistant plants, chimeric genes, nucleic acids and vectors encoding an insecticidal Txp40 protein which comprise a nucleotide sequence that has at least 95% identity to any of SEQ ID NOs: 3-5 or 11- 30, 32-50, 53-55, or 59-73, which comprise a nucleotide sequence that encodes a protein with at least 95% identity to the sequence of SEQ ID NO: 1, 74-93, 95-113, 116-119, or 123-136, which comprise a nucleotide sequence that is complementary to a nucleotide sequence that has at least 95% identity to any of SEQ ID NOs: 3-5 or 11- 30, 32-50, 53-55, or 59-73 or is a nucleic acid molecule comprising SEQ ID NOs: 31, 51-52, 57-59 . The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the invention commensurate in scope with these claims. Claims 1-10, 19, 22-23, 27 and 28 require pesticidal proteins with activity against Spodoptera pests with 95% identity to SEQ ID NO: 1, wherein the amino acid sequence is not SEQ ID NO: 94, 114-115, or SEQ ID NO: 120-122. Claims 12, 15, 16, 17, 18 require nucleic acid molecules encoding pesticidal proteins with activity against Spodoptera pests wherein the nucleotide sequence has as at least 95% identity to any of SEQ ID NOs: 3-5 or 11- 30, 32-50, 53-55, or 59-73, encodes an amino acid sequence with 95% identity to SEQ ID NO: 1, wherein the amino acid sequence is not SEQ ID NO: 94, 114-115, or SEQ ID NO: 120-122, or is a nucleotide sequence that is complementary to any of the above sequences. Claim 13 requires a nucleic acid molecule encoding an insecticidal protein comprising the nucleotide sequence of SEQ ID NOs: 4, 5, or 11-73. Claim 24 requires a nucleic acid molecule encoding a Txp40 protein or variant thereof comprising an amino acid sequence with at least 95% identity to the sequence of SEQ ID NO: 74-93, 95-113, 116-119, or 123-136. Applicant teaches SEQ ID NO: 1, which is the amino acid sequence of the Txp40 protein isolated from Photorhabdus luminescens , a naturally occurring bacteria and which has activity against Spodoptera (page 4, sequence listing beginning after ¶0013; page 51, ¶0183-0184, and Table 1, row 3). SEQ ID NO: 1 is encoded by SEQ ID NO: 3; SEQ ID NO: 4 is the E. coli codon-optimized sequence of SEQ ID NO: 3 (specification, page 4, list of sequences beginning after ¶0013). Applicant teaches SEQ ID NOs: 74-93 and 95-113 which are single amino acid substitution variants (K/A or R/A substitutions) of SEQ ID NO: 1 and which have activity against Spodoptera (specification, pages 6-7, list of sequences; Table 3 on pages 53-54). These sequences have 99.7% sequence identity to SEQ ID NO: 1 (alignments not included, but please see ABSS Sequence Search Results dated 1 April 2024, SEQ ID NO: 1, Published Applications AA main database, filename: 20260401_154121_us-18-894-773-1.align250.rapbm, results 2-42). These variants are encoded by the nucleotide sequences of SEQ ID NOs: 11-30 and 32-50, respectively (specification, pages 4-5, listing of sequences). Applicant teaches SEQ ID NOs: 116-119, 123-125, and 127-129, which are dual amino acid substitution variants (K/A and/or R/A substitutions) of SEQ ID NO: 1 and which have activity against Spodoptera (specification, page 7, list of sequences; Table 4 on page 54). These sequences have 99.3% sequence identity to SEQ ID NO: 1 (alignments not included, but please see ABSS Sequence Search Results dated 1 April 2024, SEQ ID NO: 1, Published Applications AA main database, filename: 20260401_154121_us-18-894-773-1.align250.rapbm, results 43-54). These variants are encoded by the nucleotide sequences of SEQ ID NOs: 53-56, 60-62, and 64-66 (specification, pages 4-5, listing of sequences). Applicant teaches SEQ ID NOs: 126 and 130-136 which have between 3 and 6 amino acid substitutions relative to SEQ ID NO: 1 and which have activity against Spodoptera (specification, page 7, list of sequences; Table 4 on page 54). SEQ ID NOs: 126, 131 and 136 have 99% sequence identity to SEQ ID NO: 1; SEQ ID NOs: 130,132, 133 and 134 have between 98.5% and 98.9% identity to SEQ ID NO: 1; and SEQ ID NO: 135 has 97.5% identity to SEQ ID NO: 1 (alignments not included, but please see ABSS Sequence Search Results dated 1 April 2024, SEQ ID NO: 1, Published Applications AA main database, filename: 20260401_154121_us-18-894-773-1.align250.rapbm, results 55-64). These variants are encoded by the nucleotide sequences of SEQ ID NOs: 63 and 67-73 (specification, pages 4-5, listing of sequences). Applicant teaches that SEQ ID NOs: 94, 114-115, and 120-122 are not active against Spodoptera frugiperda ( pages 53-54, Tables 3-4). These sequences have 96.7%, 96.7%, 96.4%, 96.4%, 96.1%, and 95.7% identity, respectively to SEQ ID NO: 1. These amino acid sequences are encoded by the nucleotide sequences of SEQ ID NOs: 31, 51-52, and 57-59 . None of the substitution Txp40 variants taught by Applicant, i.e. SEQ ID NOs: 74-93, 95-113, 116-119, or 123-136 have less than 97.5% sequence identity to Txp40 protein of SEQ ID NO: 1 (alignments not included, but please see ABSS Sequence Search Results dated 1 April 2024, SEQ ID NO: 1, Published Applications AA main database, filename: 20260401_154121_us-18-894-773-1.align250.rapbm, results 1-64; see also Tables 3-5). Examiner notes that SEQ ID NO: 135 has the greatest number of amino acid substitutions (six), relative to SEQ ID NO: 1 of any of the claimed Txp40 proteins. Furthermore, none of the substitution variants taught and claimed by Applicant, i.e. SEQ ID NOs: 74-93, 95-113, 116-119, or 123-136, have less than 97.1% sequence identity to any Txp40 protein with insecticidal activity (see ABSS Sequence Search Results dated 2 April 2024, SEQ ID NO: 135, Published Applications AA main database, filename: 20260402_161900_us-18-894-773-135.align250.rapbm, results 1-65; see also Tables 3-5). None of the nucleic acids encoding the substitution variants claimed and taught by Applicant have less than 97.3% sequence identity to a nucleic acid encoding a Txp40 protein with insecticidal activity (see ABSS Sequence Search Results dated 2 April 2024, SEQ ID NO: 72, Published Applications NA main database, filename: 20260402_161928_us-18-894-773-72.align250.rapbm, results 1-62; see also Tables 3-5). Examiner notes that SEQ ID NO: 72 encodes the amino acid sequence of SEQ ID NO: 135, which has the greatest number of amino acid substitutions (six), relative to SEQ ID NO: 1 of any of the claimed Txp40 proteins. Applicant has not taught any amino acid sequences with 95-97.4% identity to SEQ ID NOs: 1, and which have insecticidal activity against a Spodoptera insect pest. Applicant has taught any amino acid sequences with 95-97.1% identity to SEQ ID NOs: 74-93, 95-113, 116-119, or 123-136 and which have insecticidal activity against a Spodoptera insect pest. Applicant has not taught any nucleic acids with 95-97.3% identity to 3-5 or 11-30, 32-50, 53-55, or 59-73 and which encode an amino acid which has insecticidal activity against a Spodoptera insect pest. Applicant has not taught any polynucleotides of any length (see Claim Interpretation) which are complementary to a nucleotide sequence has as at least 95% identity to any of SEQ ID NOs: 3-5 or 11-30, 32-50, 53-55, or 59-73, are complementary to nucleotide that encodes an amino acid sequence with 95% identity to SEQ ID NO: 1, wherein the amino acid sequence is not SEQ ID NO: 94, 114-115, or SEQ ID NO: 120-122, or are complementary to a nucleotide which encodes an amino acid sequence comprising SEQ ID NOs: 1, 74-93, 95-113, 116-119, or 123-136, wherein said complementary nucleotide sequence has insecticidal activity against a Spodoptera pest. Applicant has not taught any domains or motifs that are both necessary and sufficient for an Txp40 protein or variant thereof to have the function of insecticidal activity or which would distinguish a Txp40 protein or variant thereof with as little as 95% sequence identity to SEQ ID NO: 1, 74-93, 95-113, 116-119, or 123-136 with the function of insecticidal activity from polypeptides without said function. Applicant has not taught how to use any Txp40 protein or variant thereof with as little as 95% sequence identity to SEQ ID NO: 1, 74-93, 95-113, 116-119, or 123-136 and which do not have the function of insecticidal activity. Amino acid sequences with 95% identity to the 335 amino acid long SEQ ID NO: 1 encompass polypeptides with 16 nucleotide substitutions relative to SEQ ID NO: 1. Polypeptides with 17 amino acid substitutions relative to SEQ ID NO: 1 encompass more than 20 16 (6.55 X 10 20 ) unique polypeptides. The other claimed proteins are of the same length and the genus of polypeptides with 95% identity to anyone of SEQ ID NOs: 74-93, 95-113, 116-119, or 123-136 would likewise encompass the same vast number of polypeptides. Nucleotide sequences with 95% identity to the 1008 nucleotide long SEQ ID NO: 3 encompass nucleotide sequences with 50 nucleotide substitutions relative to SEQ ID NO: 3. Polynucleotides with 50 nucleotide substitutions relative to SEQ ID NO: 3 encompass more than 4 50 (1.26 X 10 30 ) unique polynucleotides. Further, these nucleotide sequences encompass those in which every substitution is in a different codon and in which every substitution results in a codon that encodes a different amino acid relative to the polypeptide encoded by SEQ ID NO:3, i.e. SEQ ID NO: 1. Such nucleotide sequences encompass those that encode polypeptides that have 50 amino acid substitutions relative to the 335 amino acid long polypeptide encoded by SEQ ID NO:3 (SEQ ID NO: 1). Polypeptides with 50 amino acid substitutions encompass more than 20 50 (1.12 X 10 65 ) unique polypeptides. Moreover, such polypeptides would encompass those with 85% identity to SEQ ID NO: 1. The genus of polynucleotides with 95% identity to anyone of SEQ ID NOs: NOs: 4-5 or 11- 30, 32-50, 53-55, or 59-73, would likewise encompass the same vast number of polynucleotides. Furthermore, the genus encompassed by any sequence that is complementary to any one of the claimed polynucleotides set forth above and is at least 2 nucleotides long (see Claim Interpretation), would be even larger still. Thus, the genus of claimed polypeptides, polynucleotides and complements thereof, is exceedingly vast. In addition, while Applicant has specifically excluded the proteins encoded by 94, 114-115, and 120-122, which do not have insecticidal functional against a Spodoptera insect pest, these sequences all have greater than 95% identity to SEQ ID NO: 1. Therefore, there is at least some unpredictability among the genus of proteins encompassed by 95% sequence identity to SEQ ID NO: 1, 74-93, 95-113, 116-119, or 123-136 (and by extension, the polynucleotides which encode them) regarding their insecticidal activity. The specification fails to provide adequate guidance for making polypeptides with as little as 95% sequence identity to SEQ ID NOs: 1, 74-93, 95-113, 116-119, or 123-136. The specification fails to provide adequate guidance for making polynucleotides which encode said polypeptides, polynucleotides with at least 95% identity to SEQ ID NOs: 4-5 or 11- 30, 32-50, 53-55, or 59-73 and which encode an insecticidal protein, or complements thereof. The specification fails to provide adequate guidance as to which nucleotides or amino acids can be altered and which must not be changed to maintain function. The specification fails to provide adequate guidance for which nucleotides or amino acids can be deleted and which regions of the sequences can tolerate insertions cand still produce a functional insecticidal protein. Applicant has taught a series of single, double and triple amino acid variants of SEQ ID NO: 1, but these are limited to alanine substitutions. Applicant teaches only six variants that have non-alanine substitutions. However, at most these variants comprise 4 non-alanine substitutions (out of 335 amino acids residues; 2% of residues; SEQ ID NO:135). Applicant teaches that three amino acid positions are important in determining the insecticidal efficacy of the Txp40 protein; positions 11, 119 and 213 (¶00194). However, while this implies that these positions are necessary for insecticidal activity, it does not demonstrate that these positions are sufficient for insecticidal activity. Applicant teaches that SEQ ID NO: 1 is a Txp40 insecticidal protein. However, applicant does not teach any motifs or domains that are necessary and sufficient to confer the claimed function. The prior art does not remedy this deficiency. Kinkar et al (2024, Insect Biochemistry and Molecular Biology 164: 1040545, pp 1-14) teaches that Txp40 comprises two domains, each of which are individually toxic, but that the presence of both results in higher toxicity against larva of the Greater wax moth ( Galleria mellonella ). Kinkar et al further teaches that the structure of Txp40 was not known at the time of filing or prior to the publication of their study (page 1, Abstract; page 2, column 1, paragraph 2-3; page 5, column 1, paragraph 2; page 1, column 1, paragraph 1). Thus, from the guidance in the specification, it would appear that one of skill in the art would need to make the claimed polypeptides and polynucleotides by making random nucleotide and amino acid substitutions, which would be unpredictable. While proteins are fairly tolerant to mutations resulting in single amino acid changes, increasing the number of substitutions additively increases the probability that the protein will be inactivated (Guo et al, 2004, Proc. Natl. Acad. Sci. USA 101: 9205-9210; pg 9209, right column, paragraph 2). Given the vast number of polynucleotides and polypeptides encompassed by the claims, making and assaying even a representative sample to find any that have insecticidal activity against a Spodoptera insect pest. The specification does not provide any guidance for controlling Spodoptera, making Spodoptera resistant genes, vectors or plants using nucleotide sequences that encode proteins that do not have pesticidal activity against Spodoptera frugiperda. The specification does not provide any working examples for controlling Spodoptera, making Spodoptera resistant genes, vectors or plants using nucleotide sequences that encode proteins that do not have pesticidal activity against Spodoptera frugiperda Thus extensive teachings are required for making and using polynucleotides and polypeptides as broadly claimed by Applicant. These teachings are not provided for by specification or the prior art. Undue trial and error experimentation would have been required by one skilled in the art to develop and evaluate the myriad of encompassed proteins and polynucleotides to identify insect resistant plants and compositions comprising a protein with 95% identity to SEQ ID NO: 1, 74-93, 95-113, 116-119, or 123-136 methods for making said plants and compositions, and methods of controlling Spodoptera pests using said proteins or insect resistant plants, chimeric genes, nucleic acids and vectors encoding an insecticidal Txp40 protein which comprise a nucleotide sequence that has at least 95% identity to any of SEQ ID NOs: 3-5 or 11- 30, 32-50, 53-55, or 59-73, which comprise a nucleotide sequence that encodes a protein with at least 95% identity to the sequence of SEQ ID NO: 1, 74-93, 95-113, 116-119, or 123-136, which comprise a nucleotide sequence that is complementary to a nucleotide sequence that has at least 95% identity to any of SEQ ID NOs: 3-5 or 11- 30, 32-50, 53-55, or 59-73 or is a nucleic acid molecule comprising SEQ ID NOs: 31, 51-52, 57-59. Given the claim breath, unpredictability in the art, undue experimentation, and lack of guidance in the specification as discussed above, the instant invention is not enabled throughout the full scope of the claims . Claim Rejections - 35 USC § 103 07-20-aia AIA 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. 07-21-aia AIA Claim s 1-13 and 15-28 are rejected under 35 U.S.C. 103 as being unpatentable over Bowen et al (US 20170058294 A1) in view of Zhan et al (2018, Microbiology China 20: 1262-1272) and Brown et al (2006, Applied and Environmental Microbiology 72: 1653-1662) The claims are broadly drawn to the insecticidal protein Txp40, insect resistant plants comprising said protein and methods of making the plants, and methods of using the protein to control Spodoptera insect pests in plants. Bowen et al teach a method of controlling a Lepidotperan pest, comprising contacting the pest with a first pesticidal protein (TIC6575/Bowen et al’s SEQ ID NO: 2) (claim 24; page 11, 0079). They teach that the protein is effective against Cry1F1a1 resistant Spodoptera frugiperda (page 2, paragraph 0011; page 4, paragraph 0044; page 13, paragraphs 0091-0092, Table 4). Bowen et al teach contacting the Spodoptera insect pest with a culture of E. coli strains comprising the first pesticidal protein (page 13, 0092). Bowen et al further teaches contacting the Spodoptera insect host with a piece of leaf from a corn plant comprising the first pesticidal protein (page 14, paragraph 0096-0097, table 6). Bowen et al teaches combining the first pesticidal protein with a second pesticidal protein that has activity against a Lepidopteran pest, such as Cry1A, Cry1B, Cry1C, Cry1D, Cry1F, Cry2A, or Vip3A (Claims 14-18; page 11, paragraph 0080-0081). Bowen et al teaches a recombinant nucleic acid comprising the first pesticidal protein operably linked to heterologous promoter (claim 1; page 2, paragraph 0016; page 9, 0065). Bowen et al teach a vector comprising the recombinant nucleic acid (claim 2) and a transgenic bacterial and plant host cell comprising the recombinant nucleic acid. The teach a corn plant comprising said nucleic acid, wherein the nucleic acid encodes a protein (pesticidal protein TIC6757) with activity against Cry1Fa1 resistant Spodoptera frugiperda (claims 7-12; page 13, paragraphs 0091-0092, Table 4; page 14, paragraph 0096-0097, table 6). Bowen et al teach a method to reduce the likelihood of development of resistance to a pesticidal protein, comprising transgenic crops expressing two distinct inhibitory proteins, such as TIC6757, and a Cry1F or Vip3A protein (page 11, paragraph 0081; page 12, paragraph 0084). Bowen et al teaches a method for producing corn protected against Spodoptera frugiperda , comprising introducing into the plant a polynucleotide comprising a pesticidal protein (TIC6757), growing said plants, allowing them to self-pollinate, and assaying the progeny for resistance to Spodoptera frugiperda and other insect pests (page 14, paragraphs 0094-0098, Table 6; page 15, Tables 7-8). Bowen et al teaches further that plants expressing TIC6757, can be crossed by breeding with other plants (page 10, paragraph 0072). Bowen et al do not teach a Txp40 pesticidal protein comprising the amino acid sequence of SEQ ID NO: 1 that is active against Spodoptera frugiperda . Bowen et al do not teach SEQ ID NO: 3. Brown et al teach a Txp40 pesticidal protein (NCBI accession DQ242625), isolated from Photorhabdus luminescens strain V16, which is toxic to cultured cell lines of Spodoptera frugiperda (page 1655, column 1, paragraph 1; column 2, paragraph 2; Table 1; page 1656, Fig. 2). Brown et al also teaches that Txp40 is broadly conserved in 17 Xenorhabdus strains and 4 Photorhabdus (page 1660, column 1, paragraph 2; Supplemental figure 1). Brown further teaches that the Txp40 proteins of these bacteria are broadly active against lepidopteran pests (1661, column 2, paragraph 1). Zhan et al teaches a Txp40 pesticidal protein (NCBI accession KY814642), isolated form Photorhabdus luminescens strain NLK-1, with 100% identity to SEQ ID NO: 1 (AA translation of KY814642; page 1264, column 2, section 1.2.1; page 1266, column 1, section 2.1, final paragraph). Alignment result Title: US-17-616-276-1 AASEQ2_07142023_053142 Query Match 100.0%; Score 1734; DB 1; Length 335; Best Local Similarity 100.0%; Matches 335; Conservative 0; Mismatches 0; Indels 0; Gaps 0; Qy 1 MVIQLTPDNRSGYPPVETQIAGDIVRLLNFKQTDEGYTASHGIEYRAKKIILAYALAVSG 60 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 1 MVIQLTPDNRSGYPPVETQIAGDIVRLLNFKQTDEGYTASHGIEYRAKKIILAYALAVSG 60 Qy 61 IHDVSHLPGDYYKNKETAEVIYQEYMSNLSSALLGENGDQISKDMADGFYKNELDFEGKY 120 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 61 IHDVSHLPGDYYKNKETAEVIYQEYMSNLSSALLGENGDQISKDMADGFYKNELDFEGKY 120 Qy 121 PQNIWNIPDLENKPLSAYSDDDKLLALYFFAAQEIPLEENQQSNTARFFKLIDFLFILSA 180 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 121 PQNIWNIPDLENKPLSAYSDDDKLLALYFFAAQEIPLEENQQSNTARFFKLIDFLFILSA 180 Qy 181 VTSLGRRIFSKNFYNGLESKSLENYIERKKLSKPFFRPPQKLPDGRIGYLASPTEPPKWR 240 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 181 VTSLGRRIFSKNFYNGLESKSLENYIERKKLSKPFFRPPQKLPDGRIGYLASPTEPPKWR 240 Qy 241 VSLQELKNNKSRNGFTNMESAAKQKYSSFIKEVQKGNDPLTAAKSIGTASGSNLEKLPNN 300 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 241 VSLQELKNNKSRNGFTNMESAAKQKYSSFIKEVQKGNDPLTAAKSIGTASGSNLEKLPNN 300 Qy 301 LYSVRLSQKDRVTFNLNNTDSTMTIHSVGTHYKNI 335 ||||||||||||||||||||||||||||||||||| Db 301 LYSVRLSQKDRVTFNLNNTDSTMTIHSVGTHYKNI 335 Zhan et al also teaches a sequence, KY814642, with 100% identity to SEQ ID NO: 3. Title: US-17-616-276-3 Query Match 100.0%; Score 1008; DB 1; Length 1008; Best Local Similarity 100.0%; Matches 1008; Conservative 0; Mismatches 0; Indels 0; Gaps 0; Qy 1 ATGGTTATACAATTAACACCTGATAATAGAAGTGGATATCCACCCGTTGAAACGCAAATA 60 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 1 ATGGTTATACAATTAACACCTGATAATAGAAGTGGATATCCACCCGTTGAAACGCAAATA 60 Qy 61 GCAGGAGATATAGTACGTTTACTAAACTTTAAGCAAACAGATGAGGGTTATACTGCATCA 120 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 61 GCAGGAGATATAGTACGTTTACTAAACTTTAAGCAAACAGATGAGGGTTATACTGCATCA 120 Qy 121 CATGGAATTGAATATCGAGCTAAGAAAATAATATTAGCGTACGCTTTAGCTGTAAGTGGT 180 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 121 CATGGAATTGAATATCGAGCTAAGAAAATAATATTAGCGTACGCTTTAGCTGTAAGTGGT 180 Qy 181 ATTCATGATGTATCTCATCTTCCTGGTGACTATTATAAGAATAAAGAGACTGCTGAGGTA 240 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 181 ATTCATGATGTATCTCATCTTCCTGGTGACTATTATAAGAATAAAGAGACTGCTGAGGTA 240 Qy 241 ATTTATCAAGAATATATGTCTAATCTTTCATCTGCACTATTAGGTGAAAATGGTGATCAA 300 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 241 ATTTATCAAGAATATATGTCTAATCTTTCATCTGCACTATTAGGTGAAAATGGTGATCAA 300 Qy 301 ATTTCTAAAGATATGGCAGATGGTTTTTACAAGAATGAGCTGGATTTTGAAGGTAAATAT 360 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 301 ATTTCTAAAGATATGGCAGATGGTTTTTACAAGAATGAGCTGGATTTTGAAGGTAAATAT 360 Qy 361 CCTCAAAACATTTGGAATATTCCTGATCTTGAAAATAAACCATTGAGTGCTTATTCAGAT 420 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 361 CCTCAAAACATTTGGAATATTCCTGATCTTGAAAATAAACCATTGAGTGCTTATTCAGAT 420 Qy 421 GACGATAAATTATTAGCACTATATTTTTTTGCTGCACAGGAAATTCCACTGGAGGAAAAT 480 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 421 GACGATAAATTATTAGCACTATATTTTTTTGCTGCACAGGAAATTCCACTGGAGGAAAAT 480 Qy 481 CAACAATCAAATACCGCAAGATTTTTTAAATTAATTGATTTCTTATTTATCTTATCTGCT 540 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 481 CAACAATCAAATACCGCAAGATTTTTTAAATTAATTGATTTCTTATTTATCTTATCTGCT 540 Qy 541 GTAACTTCACTAGGAAGGAGAATTTTTTCAAAAAACTTTTACAATGGGTTAGAGTCTAAA 600 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 541 GTAACTTCACTAGGAAGGAGAATTTTTTCAAAAAACTTTTACAATGGGTTAGAGTCTAAA 600 Qy 601 TCATTAGAGAATTATATTGAGAGAAAAAAGCTCTCTAAACCTTTCTTTCGACCACCGCAG 660 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 601 TCATTAGAGAATTATATTGAGAGAAAAAAGCTCTCTAAACCTTTCTTTCGACCACCGCAG 660 Qy 661 AAATTACCTGATGGCAGAATAGGTTACTTGGCCAGCCCAACAGAACCGCCTAAATGGAGA 720 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 661 AAATTACCTGATGGCAGAATAGGTTACTTGGCCAGCCCAACAGAACCGCCTAAATGGAGA 720 Qy 721 GTTAGTTTGCAAGAACTTAAAAATAACAAATCCAGGAATGGATTTACTAATATGGAAAGT 780 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 721 GTTAGTTTGCAAGAACTTAAAAATAACAAATCCAGGAATGGATTTACTAATATGGAAAGT 780 Qy 781 GCTGCAAAACAAAAGTATAGCTCATTTATAAAAGAGGTGCAAAAGGGGAACGATCCACTG 840 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 781 GCTGCAAAACAAAAGTATAGCTCATTTATAAAAGAGGTGCAAAAGGGGAACGATCCACTG 840 Qy 841 ACAGCAGCAAAAAGTATTGGTACAGCAAGCGGCAGTAACTTGGAAAAACTGCCGAATAAT 900 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 841 ACAGCAGCAAAAAGTATTGGTACAGCAAGCGGCAGTAACTTGGAAAAACTGCCGAATAAT 900 Qy 901 TTATATAGTGTGAGGCTAAGCCAAAAAGACAGGGTAACCTTCAATCTAAATAATACTGAC 960 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Db 901 TTATATAGTGTGAGGCTAAGCCAAAAAGACAGGGTAACCTTCAATCTAAATAATACTGAC 960 Qy 961 AGTACAATGACGATTCATAGTGTTGGAACTCATTATAAAAATATATGA 1008 |||||||||||||||||||||||||||||||||||||||||||||||| Db 961 AGTACAATGACGATTCATAGTGTTGGAACTCATTATAAAAATATATGA 1008 Lastly, Zhan et al teach KY814642 (KY814642 is the query sequence in the alignment below) has 91.2% identity to DQ242625, the Txp40 sequence of Brown et al. Query Match 91.2%; Score 1578; DB 1; Length 335; Best Local Similarity 90.4%; Matches 302; Conservative 17; Mismatches 15; Indels 0; Gaps 0; Qy 1 MVIQLTPDNRSGYPPVETQIAGDIVRLLNFKQTDEGYTASHGIEYRAKKIILAYALAVSG 60 ||||||||:|||||||| ||||||||:|||||||||:|||:||||||||||||||||||| Db 1 MVIQLTPDDRSGYPPVEKQIAGDIVRILNFKQTDEGHTASYGIEYRAKKIILAYALAVSG 60 Qy 61 IHDVSHLPGDYYKNKETAEVIYQEYMSNLSSALLGENGDQISKDMADGFYKNELDFEGKY 120 ||:|| || |||||||||| ||||||||||||||||||||||||||:|||||||||||:| Db 61 IHNVSKLPDDYYKNKETAERIYQEYMSNLSSALLGENGDQISKDMANGFYKNELDFEGQY 120 Qy 121 PQNIWNIPDLENKPLSAYSDDDKLLALYFFAAQEIPLEENQQSNTARFFKLIDFLFILSA 180 ||||||:|:|||||||||||||||||||||: |||||||||||| ||||||||||| ||| Db 121 PQNIWNVPELENKPLSAYSDDDKLLALYFFSVQEIPLEENQQSNAARFFKLIDFLFTLSA 180 Qy 181 VTSLGRRIFSKNFYNGLESKSLENYIERKKLSKPFFRPPQKLPDGRIGYLASPTEPPKWR 240 ||||||||||||||||||:|||||||||||||||||||||:|||||||||| ||| |||| Db 181 VTSLGRRIFSKNFYNGLEAKSLENYIERKKLSKPFFRPPQRLPDGRIGYLAGPTEAPKWR 240 Qy 241 VSLQELKNNKSRNGFTNMESAAKQKYSSFIKEVQKGNDPLTAAKSIGTASGSNLEKLPNN 300 || :|||||||||||:||| ||||||||||||||||| | |||||||||||||||||||| Db 241 VSFKELKNNKSRNGFSNMEGAAKQKYSSFIKEVQKGNAPQTAAKSIGTASGSNLEKLPNN 300 Qy 301 LYSVRLSQKDRVTFNLNNTDSTMTIHSVGTHYKN 334 |||||||||||||| |:||:|||:||||||||| Db 301 LYSVRLSQKDRVTFTQNDTDNTMTVHSVGTHYKN 334 Zhan et al does not explicitly teach that Txp40 has activity against Spodoptera frugiperda, however, a person having ordinary skill in the art would have expected Txp40 to be effective against Spodoptera frugiperda. Brown et al teach a Txp40 pesticidal protein (NCBI accession DQ242625), isolated from Photorhabdus luminescens strain V16, which is toxic to cultured cell lines of Spodoptera frugiperda (page 1655, column 1, paragraph 1; column 2, paragraph 2; Table 1; page 1656, Fig. 2). Brown et al also teaches that Txp40 is broadly conserved in Photorhabdus (page 1660, column 1, paragraph 2) and that isolated Txp40 from several strains show toxicity to Lepidoptera (1661, column 2, paragraph 1). Thus, given that Zhan et al and Brown et al teach the same type of protein, and because the two proteins have over 90% sequence identity, one of ordinary skill in the art would expect the protein of Zhan et al to be interchangeable with the protein of Brown et al for controlling Spodoptera pests. Regarding claims 1-12, 15-23, and 26-27 it would have been obvious to one skilled in the art at the time of filing to modify the methods and products of Bowen et al to comprise the pesticidal protein of Zhan et al. One would have been motivated to do substitute the pesticidal protein of Bowen et al with the protein of Zhan et al given its toxicity against Spodoptera . One would have done so with a reasonable expectation of success given the equivalent pesticidal activity of the two proteins. Regarding claims 13, 24 and 25, Zhan et al teaches a sequence with 100% identity to SEQ ID NO: 1, which is encoded by SEQ ID NO:4. Codon optimization is well known and commonly practiced by those of ordinary skill in the art. One would be motivated to do so because codon optimization can increase expression of heterologous proteins in hosts. Moreover, a polypeptide makes obvious all the polynucleotides that encode it. Further regarding claim 24, Zhan et al teaches a sequence with 100% identity to SEQ ID NO: 1. SEQ ID NO: 1 has at least 95% identity to SEQ ID NOs: 74-93, 95-113, 116-119, and 123-136 (see claim rejections under U.S.C. 112(a) above). Examiner notes that claim 14 is not included in this rejection because it requires an insecticidal protein with 100% sequence identity to SEQ ID NOs: 74-93, 95-113, 116-119 or 123-136. The prior art does anticipate or make obvious the substituted residue positions required by these Txp40 variants . Double Patenting 08-30 AIA A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co. , 151 U.S. 186 (1894); In re Vogel , 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert , 245 F.2d 467, 114 USPQ 330 (CCPA 1957). A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101. Claim 14 is rejected under 35 U.S.C. 101 as claiming the same invention as that of claim 7 of prior U.S. Patent No. 12,122,808 B2. This is a statutory double patenting rejection. Examiner notes that the instant application is a continuation application of the application from which U.S. Patent No. 12,122,808 B2 was issued. The instant claim and patented claim recite identical limitations, word-for-word, and identical sequences. 08-33 AIA 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 1-5, 9-10, 13, and 19-28 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 and 8-16 of U.S. Patent No. 12,122,808 B2. Although the claims at issue are not identical, they are not patentably distinct from each other. Examiner notes that the instant application is a continuation application of the application from which U.S. Patent No. 12,122,808 B2 was issued. The instant claims are drawn to the insecticidal protein Txp40 (or variants thereof) and nucleotides encoding said protein, insect resistant plants comprising said protein and methods of making the plants, and methods of using the protein to control Spodoptera insect pests in plants, wherein the Spodoptera pest is resistant to a Cry protein and/or a Vip3 protein. The reference claims are drawn to the insecticidal protein Txp40 (or variants thereof) and nucleotides encoding said protein, insect resistant plants comprising said protein and methods of making the plants, and methods of using the protein to control Spodoptera insect pests in plants, wherein the Spodoptera pest is resistant to a Cry protein and/or a Vip3 protein. Instant claims differ 1-5, 9-10, 13, and 19-28 from patented claims 1-6 and 8-16 as follows: the instant claims, require proteins 95% identity to SEQ ID NO: 1, wherein the amino acid sequence is not SEQ ID NO: 94, 114-115, or SEQ ID NO: 120-122; a nucleic acid molecule encoding an insecticidal protein comprising the nucleotide sequence of SEQ ID NOs: 4, 5, or 11-73 (which are codon optimized; see ¶0013, listing of sequences and descriptions therein); and/or an amino acid sequence with at least 95% identity to the sequence of SEQ ID NO: 74-93, 95-113, 116-119, or 123-136. While the patented claims require an amino acid sequence with at least 97% sequence identity to SEQ ID NOs: 81, 89, or 127 and/or a codon optimized nucleotide which comprises SEQ ID NOs: 18, 26, or 64. Therefore, the patented claims are a species which anticipates the genus of the instant claims. Conclusion No claims are allowed. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEKSANDAR RADOSAVLJEVIC whose telephone number is (571)272-8330. The examiner can normally be reached Monday--Friday 8-5:30. 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, Bratislav Stankovic can be reached at 571-270-0305. 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. 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If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /ALEKSANDAR RADOSAVLJEVIC/Examiner, Art Unit 1662 /BRENT T PAGE/Primary Examiner, Art Unit 1663 Application/Control Number: 18/894,773 Page 2 Art Unit: 1662 Application/Control Number: 18/894,773 Page 3 Art Unit: 1662 Application/Control Number: 18/894,773 Page 4 Art Unit: 1662 Application/Control Number: 18/894,773 Page 5 Art Unit: 1662 Application/Control Number: 18/894,773 Page 6 Art Unit: 1662 Application/Control Number: 18/894,773 Page 7 Art Unit: 1662 Application/Control Number: 18/894,773 Page 8 Art Unit: 1662 Application/Control Number: 18/894,773 Page 9 Art Unit: 1662 Application/Control Number: 18/894,773 Page 10 Art Unit: 1662 Application/Control Number: 18/894,773 Page 11 Art Unit: 1662 Application/Control Number: 18/894,773 Page 12 Art Unit: 1662 Application/Control Number: 18/894,773 Page 13 Art Unit: 1662 Application/Control Number: 18/894,773 Page 14 Art Unit: 1662 Application/Control Number: 18/894,773 Page 15 Art Unit: 1662 Application/Control Number: 18/894,773 Page 16 Art Unit: 1662 Application/Control Number: 18/894,773 Page 17 Art Unit: 1662 Application/Control Number: 18/894,773 Page 18 Art Unit: 1662 Application/Control Number: 18/894,773 Page 19 Art Unit: 1662 Application/Control Number: 18/894,773 Page 20 Art Unit: 1662 Application/Control Number: 18/894,773 Page 21 Art Unit: 1662 Application/Control Number: 18/894,773 Page 22 Art Unit: 1662 Application/Control Number: 18/894,773 Page 23 Art Unit: 1662 Application/Control Number: 18/894,773 Page 24 Art Unit: 1662 Application/Control Number: 18/894,773 Page 25 Art Unit: 1662
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