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 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, wherein said treating is sufficient to induce the flowering response in the absence of vernalization (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 fluorescent 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 a vernalization-dependent winter annual plant 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 a vernalization-dependent winter annual plant 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 a vernalization-dependent winter annual plant 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 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);
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 06/12/2026 have been fully considered but they are not persuasive.
Regarding the argument on pages 6 and 7 that “none of the cited references teaches or suggests a method for decreasing flowering time in a plant. Cober is an observational study of soybean ‘long juvenile’ genetics that records flowering time differences between soybean lines under short photoperiods; its stated objectives are to ‘compare phenology,’ ‘determine genetic control,’ and ‘compare e6e6 and jj lines,’ not to decrease flowering time. Del Ninno does not teach inducing flowering or decreasing flowering time; its only flowering-related statement, that an optical filter may be used ‘to retain plants of a taxus genus in a flowering stage or target specific light for the production of paclitaxel.’ (Q [0019]). Del Ninno thereby teaches the opposite, namely holding a plant in a stage. Zelenkov does not mention flowering at any point. Dong teaches genetic engineering of the RDR6 gene to control flowering time in rapeseed, a fundamentally different approach, and includes vernalization of Arabidopsis at 4°C for 4 to 6 days as a standard protocol step. Similarly, none of the cited references teaches or suggests vernalization-dependent or vernalization-independent decrease of flowering time. The specification teaches that ‘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 requirement for vernalization, typically 8 weeks at 4 to 6°C, has become ’the biggest hurdle in accelerating crop cycle time for winter annual crops such as winter oilseed rape (WOSR).’ Application, [004]. A continuing need exists in the art for novel methods to decrease flowering time and accelerate plant breeding cycles. The amended claims address precisely this unmet need, and the cited art does not,” the Examiner submits that Cober specifically addresses decreasing flowering time, as the abstract discusses how photoperiod adjustments result in earlier flowering for certain plants. Furthermore, Cober discloses a flowering response in the absence of vernalization, as page 141, Col. 2, lines 1-10, details that the plants are grown at a temperature of 25°C, which is above the low temperatures required to mimic the necessary vernalization conditions.
Regarding the argument on page 8 that “the Action's sole stated motivation is that adopting del Ninno's ratio ‘would increase biomass in the plant, which would improve the growth characteristics of the plant.’ This rationale does not relate to the claimed invention, decreasing flowering time, and instead invokes a biomass objective from del Ninno's algae context. Del Ninno's only statement about flowering is that ‘an optical filter is used to retain plants of a taxus genus in a flowering stage or target specific light for the production of paclitaxel,’ which teaches retaining a plant in a stage, the opposite of decreasing flowering time,” 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 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. Increasing biomass in the plant is a clear benefit and provides sufficient motivation to provide the method of Cober with the treatment of del Ninno.
Regarding the argument on pages 8 and 9 that “the Action relies on Zelenkov solely for the species, stating that ‘treatment of additional plants would expand the use case of the method,’ and expressly does not rely on Zelenkov for intensity. But seed germination and flowering induction involve different developmental pathways and genetic mechanisms. The Action's conclusory assertion that ‘expanding the use case’ does not address the fundamental question: Why would a skilled artisan have expected that combining soybean photoperiod observations, algae filter transmittance ratios, and wheat germination protocols would yield a method for decreasing flowering time in vernalization-dependent winter annuals? No articulated reasoning has been provided,” the Examiner maintains 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. Expanding the use case of the method is a clear benefit that is taught by the treatment of additional plants of Zelenkov. The Examiner also notes that Zelenkov is not relied upon to teach intensity. Therefore, there is adequate motivation to provide the method of Cober with the teachings of Zelenkov.
Regarding the argument on page 9 that “Regarding Dong (for claim 50), the Action asserts that modifying the method to include winter oilseed rape ‘would expand the use case of the method.’ Dong achieves earlier flowering exclusively through genetic engineering, not light treatment; a person of ordinary skill would not look to a transgenic approach for motivation to modify a light-based method,” 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, Dong is in the field of the inventor’s endeavor, as both the inventor’s endeavor and Dong are in the same field of the field of plant treatment including far-red plant treatment. A person of ordinary skill in the art of plant treatment using far-red would have reasonably have looked to Dong, as Dong is concerned with plant treatment using far-red light. Therefore, Dong is analogous art.
Regarding the argument on page 10 that “For instance, Example 3 demonstrates a paradigm-shifting result: ‘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 was 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 result directly contradicts decades of scientific literature in which ‘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 invention ‘break[s] the current paradigm that FLC silencing is required for subsequent FT activation.’ Application, [028]. None of the cited references teaches or suggests that far-red light treatment can bypass vernalization requirements in winter annual crops. In addition, Example 2 demonstrated that 30 individual winter oilseed rape pedigrees representing diverse germplasm pools all achieved accelerated flowering under far-red treatment, showing that the result is not limited to a single cultivar but a robust, broadly applicable phenomenon with clear nexus to the claimed method. Application, [061]; FIG. 4. The specification further teaches that the claimed methods ‘can lead to a 2-3 fold reduction in flowering time across 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.
Regarding the argument on page 11 that “The Action asserts 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.’ This conclusory statement does not engage with the evidence. Del Ninno discloses a filter transmittance ratio for algae biomass and paclitaxel production; it contains no data or suggestion that any ratio within its range would produce flowering acceleration in crop plants. The mere fact that a numerical range was disclosed in an unrelated context does not establish that results within that range, in a different field, for a different purpose, and on different organisms, are expected. The unexpected results described in the claimed invention have clear nexus to the claimed limitations and are not predicted by the cited art,” and on pages 11 and 12 that “Del Ninno also fails both prongs to define the scope of analogous prior art: (1) whether the art is from the same field of endeavor, regardless of the problem addressed, and (2) if the reference is not within the field of the inventor's endeavor, whether the reference is still reasonably pertinent to the particular problem with which the inventor is involved. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Del Ninno fails both tests. The present invention is directed to decreasing flowering time in vernalization-dependent winter annuals. Application, 1 [002] to [005]. Del Ninno is directed to ‘scalable, optical filter technology usable to increase the efficiency of photoautotrophic microalgae cultivation and other light-activated biological pathways.’ Del Ninno, [0002]. Every example, claim, and experimental result in del Ninno relates to algae biomass, filter design, or chemical production. Algae cultivation for biomass production is a fundamentally different field from plant breeding and crop science. The problem addressed by the present invention is the requirement for prolonged vernalization to induce flowering in winter annuals, ‘the biggest hurdle in accelerating crop cycle time for winter annual crops such as winter oilseed rape (WOSR).’ Application, [004]. Del Ninno does not address this problem; it is concerned with algae biomass productivity. Its sole flowering mention, retaining Taxus plants in a flowering stage for paclitaxel, concerns holding a plant in a stage, not accelerating transition to flowering. A person of ordinary skill seeking to accelerate flowering in vernalization-dependent crops would not have looked to an algae filter reference. Because del Ninno is neither from the same field of endeavor nor reasonably pertinent to the problem of decreasing flowering time, 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure.
Heard et al., US 20140196162 A1, discusses plant transcriptional regulators.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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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/S.T.C./Examiner, Art Unit 3642
/JOSHUA D HUSON/Supervisory Patent Examiner, Art Unit 3642
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