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 .
Election for Restriction Requirement
Claims 21-40 are pending and examined on the merits.
Applicant’s election with traverse of the invention Group I, claims 21-29 and 36-39 as well as SEQ ID NO:3 as species election in the reply filed 7/20/2026 is acknowledged.
Applicants argue that wheat flour produced by milling wheat grain includes the genomic DNA of the grain including the altered Lpx1 gene (response, page 1).
The Office contends that Applicants argue a limitation that is not found in the claim.
As a result, claims 30-35 and 40 are withdrawn from consideration for being drawn to non-elected invention.
Claims 21-29 and 36-39 as well as SEQ ID NO:3 are examined on the merits.
The restriction requirement is still deemed proper and thus made FINAL.
Information Disclosure Statement
2. The information disclosure statements (IDS) submitted on 12/19/2024 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) 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).
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6. Claims 21-29 and 36-39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Patent No. 10,087,455.
Claims 21-29 and 36-39 are drawn to a wheat grain made comprising a Lpx 1 gene in one or both of the B and D genomes, wherein wheat flour made from the grain has increased shelf-life as compared to flour from a wild type wheat grain or has at least a 5% reduction in hexanal production reduction of lipoxygenase activity (claims 21, 31-34, 40-42), wherein the Lpx 1 gene is Lpx-D1(claim 22); or wherein the human-induced alteration in the Lpx-D1 gene is homozygous (claim 23); or wherein the alteration in the Lpx-D1 gene results in a premature stop codon at position such as position 81 (claims 25-26); or wherein the flour is a whole grain flour (claims 27, 30); or wherein theLpx-B1 mutation is premature stop codon at position 510 (claims 27-29); or wherein the alteration in the Lpx-D1 gene is in a promoter (claim 24); or wherein the Lpx1 gene of B genome is Lpx-B1.2 (claims 27-28).
US Patent No. 10/087,455
Claims 4,7,9,16 and 21 of US Patent No. 10/087,455 are drawn to:
1. A wheat plant comprising at least one mutation in an Lpx1 gene in at least one of a B or D genome, wherein the Lpx1 gene of the B genome is Lpx-B1.2, and the at least one mutation in the Lpx-B1.2 gene comprises a tryptophan substitution to a stop codon at amino acid position 510 (W510*) of SEQ ID No. 6, or a tryptophan substation to a stop codon at amino acid position 494 (W494*) of SEQ ID No. 6, or a guanine substitution to an adenine at nucleotide position 2691 of SEQ ID No. 4, and further wherein the Lpx1 gene of the D genome is Lpx-D1, and at least one mutation in the Lpx-D1 gene comprises a tryptophan substitution to a stop codon at amino acid position 494 (W494*) of SEQ ID No. 3, or a tryptophan substitution to a stop codon at amino acid position 81 (W81*) of SEQ ID No. 3, or a tryptophan substitution to a stop codon at amino acid position 101 (W101*) of SEQ ID No. 3, or a tryptophan substitution to a stop codon at amino acid position 517 (W517*) of SEQ ID No. 3, or a guanine substitution to an adenine at nucleotide position 1538 of SEQ ID No. 15.
2. The wheat plant of claim 1 comprising at least one mutation in the B genome of the Lpx-B1.2 gene, wherein the at least one mutation in the Lpx-B1.2 gene comprises a tryptophan substitution to a stop codon at amino acid position 510 (W510*) of SEQ ID No. 6.
3. Wheat grain from the wheat plant of claim 2.
4. Flour comprising wheat grain of claim 3.
5. The wheat plant of claim 1 comprising at least one mutation in the D genome of the Lpx-D1 gene, wherein the at least one mutation in the Lpx-D1 gene comprises a tryptophan to a stop codon at amino acid position 494 (W494*) of SEQ ID No. 3.
6. Wheat grain from the wheat plant of claim 5.
7. Flour comprising wheat grain of claim 6.
8. Wheat grain from the wheat plant of claim 1.
9. Flour comprising wheat grain of claim 8.
10. A wheat seed, plant part or progeny thereof from a wheat plant of claim 1, wherein said progeny comprises the Lpx1 mutation or mutations.
11. The wheat plant of claim 1, wherein milled grain from said wheat plant has a property selected from the group consisting of: (a) increased shelf-life; (b) increased oxidative stability; (c) decreased production of Lpx1 protein; (d) decreased activity of the Lpx1 protein; (e) decreased hexanal production; (f) decreased pinellic acid production; (g) decreased decomposition products from fatty acids; or (h) improved sensory characteristics as compared to milled grain from a wild type wheat plant.
12. A wheat plant comprising at least one mutation in an Lpx1 gene in each of a B and a D genome, wherein the Lpx1 gene of the B genome is Lpx-B1.2, and the at least one mutation in the Lpx-B1.2 gene comprises a tryptophan substitution to a stop codon at amino acid position 510 (W510*) of SEQ ID No. 6, or a tryptophan substitution to a stop codon at amino acid position 494 (W494*) of SEQ ID No. 6, or a guanine substitution to an adenine at nucleotide position 2691 of SEQ ID No. 4, and further wherein the Lpx1 gene of the D genome is Lpx-D1, and the at least one mutation in the Lpx-D1 gene comprises a tryptophan substitution to a stop codon at amino acid position 494 (W494*) of SEQ ID No. 3, or a tryptophan substitution to a stop codon at amino acid position 81 (W81*) of SEQ ID No. 3, or a tryptophan substitution to a stop codon at amino acid position 101 (W101*) of SEQ ID No. 3, or a tryptophan substitution to a stop codon at amino acid position 517 (W517*) of SEQ ID No. 3, or a guanine substitution to an adenine at nucleotide position 1538 of SEQ ID No. 15.
13. The wheat plant of claim 12, wherein the at least one mutation in the B genome of the Lpx-B1.2 gene comprises a tryptophan substitution to a stop codon at amino acid position 510 (W510*) of SEQ ID No. 6.
14. The wheat plant of claim 12, wherein the at least one mutation in the D genome of the Lpx-D1 gene comprises a tryptophan substitution to a stop codon at amino acid position 494 (W494*) of SEQ ID No. 3.
15. Wheat grain from the wheat plant of claim 12.
16. Flour comprising wheat grain of claim 15.
17. A wheat seed, plant part or progeny thereof from a wheat plant of claim 12, wherein said progeny comprises the Lpx1 mutations.
18. The wheat plant of claim 12, wherein the at least one mutation in the B genome of the Lpx-B1.2 gene comprises a tryptophan substitution to a stop codon at amino acid position 510 (W510*) of SEQ ID No. 6 and the at least one mutation in the D genome of the Lpx-D1 gene comprises a tryptophan substitution to a stop codon at amino acid position 494 (W494*) of SEQ ID No. 3.
19. The wheat plant of claim 18, wherein milled grain from said wheat plant has a property selected from the group consisting of: (a) increased shelf-life; (b) increased oxidative stability; (c) decreased production of Lpx1 protein; (d) decreased activity of the Lpx1 protein; (e) decreased hexanal production; (f) decreased pinellic acid production; (g) decreased decomposition products from fatty acids; or (h) improved sensory characteristics as compared to milled grain from a wild type wheat plant.
20. Wheat grain from the wheat plant of claim 18.
21. Flour comprising wheat grain of claim 20.
22. A wheat seed, plant part or progeny thereof from a wheat plant of claim 18, wherein said progeny comprises the Lpx1 mutations.
23. The wheat plant of claim 12, wherein milled grain from said wheat plant has a property selected from the group consisting of: (a) increased shelf-life; (b) increased oxidative stability; (c) decreased production of Lpx1 protein; (d) decreased activity of the Lpx1 protein; (e) decreased hexanal production; (f) decreased pinellic acid production; (g) decreased decomposition products from fatty acids; or (h) improved sensory characteristics as compared to milled grain from a wild type wheat plant.
Therefore, instant claims are anticipated by claims 1-23 of US Patent No. 10/087,455.
7. Claims 21-25, 27-28, 36-37 and 39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,457,951.
Instant claims are discussed as above.
Claims 1-20 of US Patent No. 10,457,951 are drawn to:
1. A wheat plant comprising a human induced alteration in an Lpx1 gene in a D genome, wherein milled grain from said wheat plant has a property selected from the group consisting of: (a) increased shelf-life; (b) increased oxidative stability; (c) decreased production of Lpx1 protein; (d) decreased lipoxygenase activity; (e) decreased hexanal production; (f) decreased pinellic acid production; (g) decreased decomposition products from fatty acids; and (h) improved sensory characteristics as compared to milled grain from a wild type wheat plant.
2. The wheat plant of claim 1, wherein the Lpx1 gene is Lpx-D1.
3. The wheat plant of claim 1, further comprising a human induced alteration in a Lpx1 gene of a B genome.
4. The wheat plant of claim 3, wherein the Lpx1 gene of the B genome is Lpx-B1.2.
5. The wheat plant of claim 1, wherein the human induced alteration in the Lpx1 gene of the D genome is in a promoter.
6. Wheat grain from the wheat plant of claim 1.
7. Flour comprising wheat grain of claim 6.
8. A wheat seed, plant part or progeny thereof from a wheat plant of claim 1, wherein said progeny comprises the alteration in the Lpx1 gene.
9. A wheat plant comprising a human induced alteration in an Lpx1 gene in each of a B and a D genome, wherein milled grain from said wheat plant has a property selected from the group consisting of: (a) increased shelf-life; (b) increased oxidative stability; (c) decreased production of Lpx1 protein; (d) decreased lipoxygenase activity; (e) decreased hexanal production; (f) decreased pinellic acid production; (g) decreased decomposition products from fatty acids; and (h) improved sensory characteristics as compared to milled grain from a wild type wheat plant.
10. The wheat plant of claim 9, wherein the Lpx1 gene in the D genome is Lpx-D1.
11. The wheat plant of claim 9, wherein the Lpx1 gene in the B genome is Lpx-B1.2.
12. Wheat grain from the wheat plant of claim 9.
13. Flour comprising wheat grain of claim 12.
14. A wheat seed, plant part or progeny thereof from a wheat plant of claim 9, wherein said progeny comprises the alteration in the Lpx1 gene.
15. Wheat grain comprising an embryo and a reduced activity of lipoxygenase, wherein the embryo comprises a human induced alteration in an Lpx1 gene in a D genome, and further wherein the lipoxygenase activity is reduced by at least 9% relative to the lipoxygenase activity in a wild type parental wheat grain.
16. The wheat grain of claim 15, wherein the human induced alteration in the Lpx1 gene of the D genome is in a promoter.
17. The wheat grain of claim 15, wherein the embryo further comprises a human induced alteration in an Lpx1 gene in a B genome.
18. The wheat grain of claim 15, wherein the lipoxygenase activity is reduced by at least 20% relative to the lipoxygenase activity in the wild type parental wheat grain.
19. The wheat grain of claim 15, wherein the lipoxygenase activity is reduced by at least 60% relative to the lipoxygenase activity in the wild type parental wheat grain.
20. Flour comprising wheat grain of claim 15.
The instant application is a continuation of US Patent No. 10,457,951, which claims the wheat grain and flour comprising alterations in the Lpx1 gene in the D and B genomes. does not teach wheat flour has increased shelf-life of at least 1 month as compared to flour from a wild type wheat grain or has at least a 5% reduction in hexanal production or at least 9% reduction of lipoxygenase activity, such feature would have been inherently exhibited by the flour of claims 7, 13 and 20 of US Patent No. 10,457,951.
Therefore, instant claims anticipated by claims 7, 13 and 20 of US Patent No. 10,457,951 and are obvious in view of claims 1-20 of US Patent No. 10,457,951.
Therefore, the claims differ in scope and are prima facie obvious over the patent.
8. Claims 21-24, 27-28, 36-37 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,689,659.
Instant claims are discussed as above.
The instant application is a continuation of US Patent No. 10,689,659, which claims a food product comprising wheat grain comprising a human induced alteration in an Lpx1 gene in a D genome, and wherein the wheat grain or wheat flour have increased shelf life or at least 9% reduction of lipoxygenase activity or reduced hexanal level (claims 1-12); or wherein the Lpx 1 gene is Lpx-D1(claim 22); or wherein the human-induced alteration in the Lpx-D1 gene is homozygous (claim 23); or wherein theLpx-B1 mutation is premature stop codon at position 510 (claims 27-29); or wherein the alteration in the Lpx-D1 gene is in a promoter (claim 24); or wherein human-induced alteration is in the Lpx1 gene of B genome (claim 4).
Although claims 1-20 of US Patent No. 10,689,659 does not teach wheat flour has increased shelf-life of at least 1 month as compared to flour from a wild type wheat grain or has at least a 5% reduction in hexanal production, such feature would be obviously exhibited by the wheat flour of claims 1-20 of US Patent No. 10,689,659.
Therefore, instant claims anticipated by claims 1-12 of US Patent No. 10,689,659 and are obvious in view of claims 1-20 of US Patent No. 10,689,659.
Therefore, the claims differ in scope and are prima facie obvious over the patent.
9. Claims 21-24, 27-28, 36-37 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 11,560,572.
Instant claims are discussed as above.
Claims 1-16 of U.S. Patent No. 11,560,572 are drawn to a method for producing whole grain wheat flour having increased shelf life, the method comprising: (a) providing wheat grain comprising a Lpx1 gene, wherein the wheat grain comprises a human induced alterations in an Lpxl gene in a D genome, said mutation causing decreased lipoxygenase activity as compared to grain from a wild type wheat plant, and (b) milling the wheat grain into whole grain flour, wherein the whole grain flour has increased shelf life; or wherein the whole grain flour comprises ultrafine-milled whole grain flour; or wherein the milling is carried out with a hammermill; or wherein said mutation in D-genome is homogenous; or wherein the mutation is carried out by genome editing/chemical mutagenesis; or therein the grain further comprises a human-induced mutation in Lpx1 gene in B genome; or wherein wherein said mutation in B-genome is homogenous; or wherein the mutation is carried out by genome editing/chemical mutagenesis.
Although claims 1-16 of U.S. Patent No. 11,560,572 are not drawn to wheat grain per se, the wheat grain would have been obvious made by the method of claims 1-16 of U.S. Patent No. 11,560,572. Although claims 1-16 of U.S. Patent No. 11,560,572 does not teach wheat flour has increased shelf-life of at least 1 month as compared to flour from a wild type wheat grain or has at least a 5% reduction in hexanal production, such feature would be obviously exhibited by the wheat flour made by the method of claims 1-16 of U.S. Patent No. 11,560,572.
Therefore, the claims differ in scope and are prima facie obvious over the patent.
10. Claims 21-29 and 36-39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-22 of U.S. Patent No. 12,215,330.
Claims 21-29 and 36-39 are drawn to a wheat grain made comprising a Lpx 1 gene in one or both of the B and D genomes, wherein wheat flour made from the grain has increased shelf-life as compared to flour from a wild type wheat grain or has at least a 5% reduction in hexanal production reduction of lipoxygenase activity (claims 21, 31-34, 40-42), wherein the Lpx 1 gene is Lpx-D1(claim 22); or wherein the human-induced alteration in the Lpx-D1 gene is homozygous (claim 23); or wherein the alteration in the Lpx-D1 gene results in a premature stop codon at position such as position 81 (claims 25-26); or wherein the flour is a whole grain flour (claims 27, 30); or wherein theLpx-B1 mutation is premature stop codon at position 510 (claims 27-29); or wherein the alteration in the Lpx-D1 gene is in a promoter (claim 24); or wherein the Lpx1 gene of B genome is Lpx-B1.2 (claims 27-28).
Claims 1-22 of U.S. Patent No. 12,215,330 are drawn to a wheat flour made from wheat grain comprising a Lpx 1 gene in one or both of the B and D genomes, wherein wheat flour has increased shelf-life of at least 1 month as compared to flour from a wild type wheat grain or has at least a 5% reduction in hexanal production or at least 9% reduction of lipoxygenase activity (claims 21, 31-34, 40-42), wherein the Lpx 1 gene is Lpx-D1(claim 22); or wherein the human-induced alteration in the Lpx-D1 gene is homozygous (claim 23); or wherein the alteration in the Lpx-D1 gene results in a premature stop codon at position such as position 81 (claims 25-26); or wherein the flour is a whole grain flour (claims 27, 30); or wherein theLpx-B1 mutation is premature stop codon at position 510 (claims 27-29).
Although claims 1-22 of U.S. Patent No. 12,215,330 do not teach the wheat grain per se, such grain would have been obviously obtained first in order to produce the flour of U.S. Patent No. 12,215,330.
Conclusion
Claims 21-29 and 36-39 are rejected.
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/LI ZHENG/Primary Examiner, Art Unit 1662
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