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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 03/11/2026 has been entered.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 2, 4, 9, 10, 15, 26 and 51 are rejected under 35 U.S.C. 103 as being unpatentable over Cober ("Long Juvenile Soybean Flowering Responses under Very Short Photoperiods." Crop Sci., Vol. 51, pages 140-145, (2011).) in view of del Ninno et al. (US 20140154769 A1), hereinafter del Ninno, and Zelenkov et al. (RU 2734081 C1), hereinafter Zelenkov.
Regarding claim 1, Cober discloses a method for decreasing flowering time in a plant (Abstract), the method comprising:
obtaining a juvenile plant (Abstract); and
treating the juvenile plant with far-red light to induce a flowering response in said plant (page 141, Col. 2, lines 1-10, “The third experiment, with Paraná, Paranagoiana, PI 159925, and X5063-39 [the late flowering selection from the initial cross and used as the donor parent in backcross one] was conducted in growth cabinets with 3, 4, 5, 6, 8, and 12 h photoperiods. Plants were grown at a constant temperature of 25°C to avoid differing thermal accumulation as the photoperiods varied. The various photoperiods were provided by a mixture of cool white fl uorescent lamps and incandescent lamps [red:far-red light quality of 2.7 and photosynthetic photon flux of 200 to 230 μmol m−2 s−1]”), and wherein the far-red light comprises an intensity of 50 µmoles/m*s to 800 µmoles/m*s (page 141, Col. 2, lines 1-10).
Cober, however, fails to specifically disclose wherein said treating is carried out at a red light to far-red light ratio between 0.01 to 0.8, wherein the plant is selected from the group consisting of oil seed rape and wheat.
Del Ninno is in the field of plant treatment (¶ 0003, ¶ 0017, ¶ 0019, ¶ 0067), and teaches wherein said treating is carried out at a red light to far-red light ratio between 0.01 to 0.8 (¶ 0022, lines 24-26, “In some embodiments, a ratio of far-red light to red light in the second portion of visible radiation ranges from about 1:10 to about 10:1”).
Therefore, it would have been obvious to one of ordinary skill in the art of plant treatment before the effective filing date of the claimed invention to modify the method of Cober such that said treating is carried out at a red light to far-red light ratio between 0.01 to 0.8, as taught by the treatment of del Ninno. The treatment would increase biomass in the plant, which would improve the growth characteristics of the plant. The modification would have a reasonable expectation of success.
Zelenkov is in the field of far-red plant treatment and teaches wherein the plant is selected from the group consisting of oil seed rape and wheat (¶ 0015, “For the experimental testing of the method, winter wheat of the Nemchinovskaya 24 variety [the variety originator is the Federal Research Center “Nemchinovka”] was used as a grain crop”).
Therefore, it would have been obvious to one of ordinary skill in the art of plant treatment before the effective filing date of the claimed invention to modify the method of Cober in view of del Ninno such that the plant is selected from the group consisting of oil seed rape and wheat, as taught by the treatment of the winter wheat plant of Zelenkov. The treatment of additional plants would expand the use case of the method. The modification would have a reasonable expectation of success.
Regarding claim 2, Cober in view of del Ninno and Zelenkov discloses the method of claim 1.
Cober discloses wherein said treating:
is carried out when the plant is from 1 day to 7 weeks from germination (page 142, Col. 1, lines 5-9, “Flowering time of Paranagoiana was minimized [33 d] in both 4 and 6 h photoperiods. In the field in Londrina, Brazil, Parangoiana flowered 24 d later than Paraná [Bonato and Vello, 1999]”);
is carried out at a temperature of from 4°C to 30°C (page 141, Col. 2, lines 1-10);
is carried out for 1 to 7 weeks (page 142, Col. 1, lines 5-9);
is carried out in the presence of visible light C (page 141, Col. 2, lines 1-10);
comprises growing the plant under a photoperiod from 16 hr to 24 hr (page 141, Col. 1, line 52 – page 141, Col. 2, line 1, “The first experiment, with Paraná and Paranagoiana, was conducted in growth cabinets with photoperiods ranging from 2 to 16 h in 2 h increments”); or
comprises applying far-red light to the plant for from 1 hr to 24 hr per day prior to flowering (page 141, Col. 2, lines 1-10).
The modified reference, however, fails to specifically disclose the treatment is carried out at a temperature of 10°C for 1 to 5 weeks. It would have been obvious to one having ordinary skill in the art at the earliest effective filing date of the invention to modify the method of Cober in view of del Ninno such that treatment is carried out at a temperature of 10°C for 1 to 5 weeks in order to apply the treatment in lower temperature conditions. Additionally, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Regarding claim 4, Cober in view of del Ninno and Zelenkov discloses the method of claim 2.
Cober discloses wherein said treating is carried out at a temperature: from 6°C to 15°C; or from 15°C to 30°C (page 141, Col. 2, lines 1-10).
Regarding claim 9, Cober in view of del Ninno and Zelenkov discloses the method of claim 1.
Cober discloses wherein:
the method further comprises growing the plant under far-red light (page 141, Col. 2, lines 1-10);
the far-red light comprises an intensity of 50 µmoles/m*s to 800 µmoles/m*s (page 141, Col. 2, lines 1-10);
the far-red light is applied continuously, or the far-red light is applied non-continuously (page 141, Col. 2, lines 1-10);
the plant is treated with far-red light for 7 to 60 days prior to flowering (page 142, Col. 1, lines 5-9);
said plant is a vernalization dependent plant, or said plant is a vernalization independent plant (Abstract; soybeans);
the flowering response is induced without vernalization (page 141, Col. 2, lines 1-10);
the flowering response is initiated in less than 45 days from germination;
or the method further comprises harvesting a seed from the plant (page 141, Col. 2, lines 21-27, “The date of the first open flower was recorded for each plant. In some cases, in short photoperiods, flowers were cleistogamous. In these cases, flowering opening date was estimated to be either 3 or 4 d previous to the emergence of the pod from the sepals. The flowering date was estimated using a comparison of pod development in plants where flowers had opened normally and pod development in cleistagamous plants in the same growth cabinet”).
Regarding claim 10, Cober in view of del Ninno and Zelenkov discloses the method of claim 9, and furthermore, the modified reference teaches wherein growing: the plant under far-red light accelerates plant development as compared to a control plant lacking said treatment (Cober; Abstract); the plant under far-red light accelerates seed maturation as compared to a control plant lacking said treatment (Zelenkov; ¶ 0012, The technical result is an expansion of the possibilities of using LED lighting in the form of a monochromatic spectrum of the far region of red light in combination with treatment before germination of seeds with silica nanoparticles of hydrothermal origin to increase the germination energy and germination of wheat seeds and to improve the quality of sprouts, namely their height and productivity”); is carried out at a temperature of from 10°C to 34°C; or the plant under far-red light is carried out at a temperature of 10°C to 25°C (Cober; page 141, Col. 2, lines 1-10).
Regarding claim 15, Cober in view of del Ninno and Zelenkov discloses the method of claim 2, however the modified reference fails to specifically disclose wherein the photoperiod is at least 20 hr. It would have been obvious to one having ordinary skill in the art at the earliest effective filing date of the invention to modify the method of Cober in view of Zelenkov such that the photoperiod is at least 20 hr in order to increase far-red exposure to the plant, which would allow the user to further control flowering rate. Additionally, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Regarding claim 26, Cober in view of del Ninno and Zelenkov discloses the method of claim 9.
Cober discloses wherein the flowering response is initiated in less than 7 days from germination (page 144, Col. 1, line 28 – page 144, Col. 2, line 2, “It appears that the photoperiod effect on long juvenile lines was minimized under very short days [<6 h] [Fig. 1 and 3]. If there is a juvenile period, it appears to be a maximum of 5 d in length, the minimum difference between flowering times of long juvenile Paranagoiana and conventional Paraná”).
Regarding claim 51, Cober in view of del Ninno and Zelenkov discloses the method of claim 1, and furthermore, the modified reference teaches wherein said plant is a winter wheat plant (Zelenkov; ¶ 0015).
Claim 50 is rejected under 35 U.S.C. 103 as being unpatentable over Cober ("Long Juvenile Soybean Flowering Responses under Very Short Photoperiods." Crop Sci., Vol. 51, pages 140-145, (2011).) in view of del Ninno (US 20140154769 A1), and Zelenkov (RU 2734081 C1), as applied to claim 1, and further in view of Dong (CN 105695502 A).
Regarding claim 50, Cober in view of del Ninno and Zelenkov discloses the method of claim 1, however, the modified reference fails to specifically disclose wherein said plant is a winter oilseed rape plant.
Dong is in the field of plant treatment including far-red plant treatment and teaches wherein said plant is a winter oilseed rape plant (¶ 0004, lines 8-15, “Rapeseed is a major winter oilseed crop in southern my country, and it is mainly rotated and replanted with crops such as rice and cotton. However, due to its long growing season, it conflicts with the three harvests a year in double-cropping rice areas. Because there is a lack of rapeseed varieties that can be sown late [in mid-to-late October] and harvested early [in mid-to-late April] after the double-cropping rice harvest, many double-cropping rice fields are fallow in winter. Therefore, it is necessary to select early-maturing rapeseed varieties with appropriate maturity periods;” ¶ 0007, lines 3-6, “The photoperiodic pathway begins with the plant's photoreceptors sensing light signals. Plants are known to have three types of photoreceptors: phytochromes, blue light receptors, and ultraviolet light receptors. Phytochrome [PHY] absorbs red and far-red light in the wavelength range of 600-750 nm”).
Therefore, it would have been obvious to one of ordinary skill in the art of plant treatment before the effective filing date of the claimed invention to modify the method of Cober in view of del Ninno and Zelenkov such that said plant is a winter oilseed rape plant, as taught by the treatment of the winter oilseed rape plant of Dong. The treatment of additional plants would expand the use case of the method. The modification would have a reasonable expectation of success.
Response to Arguments
Applicant's arguments filed 02/25/2026 have been fully considered but they are not persuasive.
Regarding the argument on page 7 that “Ninno, by contrast, is directed to optical filter technology, and in particular to scalable, optical filter technology usable to increase the efficiency of photoautotrophic microalgae cultivation and other light-activated biological pathways. Ninno, [0002]. Ninno's disclosed system is specifically designed for large scale production facilities of algae to produce high-value compounds, products, and fuels. Ninno, 1[0003], [0019]. The title of Ninno (‘Optical Filter, Production System Using the Optical Filter, and Method of Using the Optical Filter’) confirms that the reference is directed to optical filter systems for algae production, not plant flowering induction methods. The cited passage relied upon by the Examiner (Ninno, [0022]) describes optical filter configurations for transmitting visible radiation to selected algae species (Ninno, 1[0020], [0023]) to increase biomass or produce specialty products. Ninno, [0023]. At no point does Ninno discuss flowering induction, flowering time reduction, vernalization bypass, or treatment of juvenile plants to induce flowering responses. The field of algae cultivation for biomass production is fundamentally different from the field of plant breeding and crop science for accelerating flowering in vernalization-dependent crops,” and on page 8 that “A person of ordinary skill in the art seeking to solve the problem of accelerating flowering in vernalization-dependent crops would not reasonably have looked to a reference about algae cultivation and optical filter systems for guidance. See In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (holding that references must be reasonably pertinent to the particular problem the inventor was trying to solve). Because Ninno is neither from the same field of endeavor nor reasonably pertinent to the problem of decreasing flowering time in plants, it is not analogous art and cannot properly be combined with Cober;” the Examiner recognizes that it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, del Ninno is in the field of the inventor’s endeavor, as both the inventor’s endeavor and del Ninno are in the same field of plant treatment using far-red light. Del Ninno is not solely concerned with algae, but instead is concerned with the broader focus of algae, plants, and other light-activated biological pathways, including plants in their flowering stages as described in ¶ 0017. Similarly, a person of ordinary skill in the art of plant treatment using far-red would have reasonably have looked to del Ninno, as del Ninno is concerned with plant treatment using far-red light. Therefore, del Ninno is analogous art.
Regarding the argument on page 8 that “Even if Ninno were analogous art, which is not the case, the cited references do not provide any incentive or motivation to practice the claimed invention. To establish obviousness, there must be ‘some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’ KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). The cited documents or combination thereof do not provide such rational underpinning,” on pages 8 and 9 that “Cober teaches away from the recited R/FR ratio. Cober discloses the use of ‘a mixture of cool white fluorescent lamps and incandescent lamps [red:far-red light quality of 2.7].’ Cober, p. 141. This R/FR ratio of 2.7 is dramatically different from the recited ratio of 0.01 to 0.8. It is in fact, the opposite because Cober's ratio is red-light dominant (more than 2.5x more red light than far-red light), whereas the claimed ratio is far-red dominant (at most 0.8x red light relative to far-red light, and potentially as little as 0.0lx red light relative to far-red light). The cited references provide no teaching, suggestion, or motivation to reverse Cober's red-dominant ratio to a far-red dominant ratio. Cober does not suggest that modifying the R/FR ratio would improve flowering results, and Ninno's disclosure of a ‘ratio of far-red light to red light in the second portion of visible radiation rang[ing] from about 1:10 to about 10:1’ (Ninno, [0022]) is made solely in the context of algae biomass production, not plant flowering. A skilled artisan would have no reason to believe that parameters optimized for algae biomass would translate to flowering induction in crop plants,” and on page 10 that “Modifying Cober's R/FR ratio of 2.7 to the claimed range of 0.01 to 0.8 represents a fundamental change in light treatment conditions. This is far beyond a mere optimization of a known parameter. At Cober's ratio of 2.7, red light predominates over far-red light by nearly 3:1. At the claimed ratio of 0.01, far-red light predominates over red light by 100:1. This is not routine optimization; it is a complete reversal of the light quality conditions. Moreover, Ninno provides no guidance that its disclosed ratio range (1:10 to 10:1 far-red to red) would produce any flowering effect whatsoever;” the Examiner submits that there is no evidence that Cober teaches away from the present application, as Cober discloses treatment using red and far-red light. The disclosure of a R/FR ratio by Cober that differs from the claimed range is not evidence that Cober teaches away from the present application, in fact, Cober is not relied upon to disclose the R/FR ratio, but instead, del Ninno is relied upon to teach the specific range, which encompasses the R/FR ratio described by Cober. Furthermore, the Examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, it has been demonstrated above that del Ninno is analogous art, and furthermore, it would have been obvious to one of ordinary skill in the art of plant treatment using far-red light to modify the method of Cober with the treatment of del Ninno. The motivation for this combination exists in del Ninno, as del Ninno teaches that the treatment would increase biomass in the plant, which would improve the growth characteristics of the plant.
Regarding the argument on page 9 that “Zelenkov is not concerned with flowering time, flowering induction, or vernalization bypass at all. A person of ordinary skill in the art would not look to a reference about improving seed germination rates to find motivation to modify a flowering induction method. The biological processes of seed germination and flowering induction involve different plant developmental pathways and are controlled by different genetic mechanisms. See Application, 1[028], [062]- [064] (describing FT activation and FLC silencing mechanisms specific to flowering). The Action's assertion that Zelenkov would ‘expand the use case of the red-light treatment method of Cober’ (Office Action, p. 8) fails to provide a rational basis for combining references directed to fundamentally different biological processes,” and on page 10 that “There is no evidence on record that Zelenkov's low intensity would achieve the purpose of the claimed invention. Zelenkov discloses far-red light treatment at an intensity of only 2 pmol m-2 s1. Zelenkov, [0019]. In contrast, the claims recite a far-red light intensity of ‘50 pmoles/m- s to 800 pmoles/m-s.’ The claimed intensity is far greater than Zelenkov's disclosed intensity. A person of ordinary skill would have no reasonable expectation that results achieved at Zelenkov's low intensity (for germination enhancement) would translate to the claimed high-intensity treatment (for flowering induction);” the Examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, motivation to provide the method of Cober with the treatment of the winter wheat plant of Zelenkov, is found in Zelenkov, as Zelenkov teaches far-red treatment of additional plants such as winter wheat plants, which would expand the use case of the red-light treatment method of Cober. The Examiner also notes that Zelenkov is not relied upon to teach intensity. Additionally, the conclusory statement that expanding the use case of the red-light treatment method of Cober fails to provide a rational basis for combining references directed to fundamentally different biological processes is not persuasive, as incorporating additional plants to the existing treatment method would expand the use case of the method to additional plants. Therefore, there is adequate motivation to provide the method of Cober with the teachings of Zelenkov.
Regarding the argument on page 11 and 12 that “The results demonstrated that increasing R/FR ratio from 0.3 to 0.6 significantly delayed floral bud visible time by 17 days in the absence of vernalization. Application, [072]; FIG. 14. Both 0.3 and 0.6 fall within the claimed range of 0.01 to 0.8, yet even this modest increase in R/FR ratio (doubling from 0.3 to 0.6) produced a dramatic 17-day delay in flowering. This demonstrates the criticality of maintaining a low R/FR ratio within the claimed range for achieving rapid flowering acceleration. This result is unexpected in view of the prior art. Cober used an R/FR ratio of 2.7, which is more than 4x higher than the upper limit of the claimed range, and achieved flowering at 33 days. Cober, p. 142. The present invention achieves floral bud visibility in as few as 22-25 days after planting at R/FR ratios of 0.3. Application, [072]; FIG. 14. This represents a substantial and unexpected improvement over Cober. The Application also demonstrates that far-red light treatment at the claimed R/FR ratio can completely bypass vernalization requirements in winter annual crops. This is a result that was unexpected in view of decades of scientific literature. Before the present invention, ‘all published literature attempting to shorten winter annual crop cycle time has been based on the assumption that vernalization is a requirement for flowering, even under CE [controlled environment].’ Application, [003]. The present invention ‘break[s] the current paradigm that FLC silencing is required for subsequent FT activation.’ Application, {028]. Specifically, Example 3 demonstrates that ‘FR-treated plants produced floral buds about 20-45 days after planting; and FLC transcription reduction and epigenetic silencing is not required for WOSR to flower following FR treatment.’ Application, [063]. This is confirmed by chromatin immunoprecipitation experiments showing that ‘epigenetic silencing at WOSR FLC loci is not required for WOSR to flower with FR.’ Application, [064]. This paradigm-shifting result was wholly unexpected. The Application further demonstrates that the claimed methods ‘can lead to a 2-3 fold reduction in flowering time across diverse germplasms.’ Application, [[028]. Example 2 showed that 30 individual WOSR pedigrees representing diverse germplasm pools achieved accelerated flowering under FR treatment. Application, [061]; FIG. 4. Example 7 demonstrated "almost two-fold acceleration in winter wheat cycle time’ when FR treatment was applied. Application, [070]; FIG. 11. These results demonstrate substantial and unexpected improvements across multiple plant species and diverse germplasms;” the Examiner submits that the claimed unexpected results do not refute the teachings of the prior art, as the claimed R/FR ratio that is taught by del Ninno as demonstrated above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure.
Wargent, US 12180496 B2, discusses a method to improve crop yield and/or quality.
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/S.T.C./Examiner, Art Unit 3642
/JOSHUA D HUSON/Supervisory Patent Examiner, Art Unit 3642