DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Status
1. Claims 1, 31-32, 46-47, 49, and 89-91 are pending and under examination to the extent of the elected species of the phyB receptor amino acid sequence of SEQ ID NO:26, the nucleic acid sequence encoding said phyB receptor of SEQ ID NO:25, Thlaspi arvense, and the elf3 loss-of-function mutation of SEQ ID NO:22.
Claims 16-17, 33, 35-36, 42, 48, and 81-84 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on August 18, 2026.
Claims 2-15, 18-30, 34, 37-41, 43-45, and 50-80 are cancelled.
Restrictions/Elections
2. The Office acknowledges receipt of Applicant’s restriction election filed August 18, 2026. Applicant elects Group I, claims 1, 16-17, 31-33, 35-36, 42, 46-49, and 89-91, drawn to a genetically modified plant or part thereof, plant cell, or seed exhibiting reduced developmental plasticity, without traverse. Applicant also elects the species of the phyB receptor amino acid sequence of SEQ ID NO:26, the nucleic acid sequence encoding said phyB receptor of SEQ ID NO:25, Thlaspi arvense, and the elf3 loss-of-function mutation of SEQ ID NO:22, without traverse.
Accordingly, claims 16-17, 33, 35-36, 42, 48, and 81-84 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
The requirement is deemed proper and is made FINAL.
Priority
3. This application is a 371 of International Application No. PCT/US2023/070851 filed July 24, 2023. The Office acknowledges receipt of Applicant’s domestic priority documents Provisional Application No. 63/391,651 filed on July 22, 2022.
Information Disclosure Statement
4. The information disclosure statement (IDS) submitted on July 16, 2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered to the extent of the English translations provided. A signed copy is attached.
Claim Objections
5. Claims 1, 31-32, 46-47, 49, and 89-91 are objected to because of the following:
Claim 1 contains a typographical error; “loss-of-function-mutation” should be amended to “loss-of-function mutation” without a hyphen between “function” and “mutation”.
Regarding claim 49, if Applicant intends for the recited ELF3 protein to be compared to the entirety of SEQ ID NO:22, the Examiner recommends the recitation of “a nucleic acid sequence” be deleted from ln. 7. “A” nucleic acid sequence of SEQ ID NO:22 encompasses sequences comprising as few as two sequential nucleic acids from SEQ ID NO:22.
Dependent claims are included.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
6. 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.
7. Claims 47 and 49 are 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.
The metes and bounds of claim 47 are undefined because the claim contains a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation. See MPEP § 2173.05(c). In the present instance, claim 47 recites the broad recitation of a plant comprising at few as two of the recited traits, and the claim also recites the narrow recitation of a plant comprising all three recited traits. The recitation of “and” any combination thereof makes the broad recitation of “any combination thereof” a claim requirement instead of an alternative. It is unclear how a plant could comprise all three of the recited traits and also only two of the recited traits. The claim is considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 49 recites the limitation "the AGCGCTA nucleic acid sequence" in ln. 8. There is insufficient antecedent basis for this limitation in the claim as claim 1 recites no such sequence.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(a)
8. 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.
Written Description
9. Claims 1, 31-32, 46-47, and 89-91 are 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.
Claim 1 requires a genetically modified plant exhibiting reduced developmental plasticity and comprising a loss-of-function mutation in an endogenous elf3 gene and a polynucleotide sequence encoding a constitutively active phyB receptor. The claim encompasses all plants, all elf3 loss-of-function sequences, and all constitutively active PhyB receptor sequences. The recitations encompassing all plants, all plants, all elf3 loss-of-function sequences, and all constitutively active PhyB receptor sequences lack adequate written description for the following reasons. Applicant has not provided a definition for “developmental plasticity”. For clarity of the record, the Examiner understands and interprets “developmental plasticity” to be defined as the ability of an organism with a specific set of genes to develop different physical or behavioral traits depending on its early environmental conditions. If this differs from Applicant’s intended recitation, Applicant is respectfully requested to clarify the intended recitation.
The specification describes the generation of Arabidopsis plants comprising elf3 loss-of-function mutations and expressing a constitutively active PhyB having a Y276H allele (YHB)[00239-00241]. The specification discloses that YHB(elf3) seedlings do not respond developmentally to light[00242],[00254-00256]. Applicant also indicates that while YHB(elf3) plants flower earlier than wildtype plants under any light conditions[00257-00258], plants expressing YHB display different responses to short- or long-day lengths with regard to time to flowering in plants[00244]. Applicant discloses the generation of a pennycress YHB(elf3) double mutant that displays reduced responses to daylength and temperature[00247].
The state of the art is well-developed with regard to the structure and function of ELF3 in various crop and research plants. For example, Choi et al. (Journal of Plant Biology (2026) 69:9–19 (U)) discloses the function of ELF3 in regulating developmental responses to both light and temperature (p. 12, right column, first and second full paragraphs). Choi further discloses that “consistently, elf3 mutants display early flowering regardless of temperature” (p. 13, left column, first partial paragraph). Accordingly, it is clear from the state of the art that disruption of ELF3 gene and/or protein function results in reduced developmental responses to light and temperature; therefore, it is well-established that elf3 loss-of-function mutants demonstrate reduced developmental plasticity in response to changes in environmental conditions during growth. However, the art also teaches that there is some variability in the developmental changes induced by distinct elf3 loss-of-function mutations. For example, Reed et al. (Plant Physiology, April 2000, Vol. 122, pp. 1149–1160 (previously cited)) teaches that Arabidopsis elf3-1 and elf3-7 loss-of-function mutants both develop longer hypocotyls and petioles, narrower leaves, fewer flowers, and flower more quickly than wildtype plants when grown under short-day conditions (p. 1152, “Isolation and Morphology of elf3 Mutants”; p. 1153, Table 1). However, Reed’s plants comprising either the elf3-1 or the elf3-7 mutation also have distinct developmental phenotypes with regard to each other; the elf3-7 plants have shorter hypocotyls, flower more slowly, and produce more flowers than the elf3-1 plants when grown under short-day conditions (p. 1153, Table 1). Accordingly, even if it is well-established that elf3 loss-of-function alleles result in reduced developmental plasticity in plants comprising said alleles, the severity of the impact that distinct alleles have on various impacts of said plasticity (e.g., hypocotyl length, time to flowering, number of flowers, and/or other traits) is not predictable. Neither Reed, Applicant’s specification, nor the state of the art disclose any features unique to either the elf3-1 or elf3-7 mutations that are sufficient to explain the distinct phenotypes in plants comprising either mutation.
The state of the art is well-developed with regard to the structure and function of PhyB polypeptides and teaches several mutations resulting in the constitutive activation of said polypeptides. However, Jeong et al. (Plant Physiol. 2016 Jun 20;171(4):2826–2840 (V)) discloses the Y276H and Y303V mutations resulting in constitutively active versions of PhyB polypeptides, that constitutively active PhyB alleles confer a strong resistance to circadian responses to light, and that Arabidopsis plants constitutively expressing constitutively active PhyB polypeptides under the control of a 35S promoter lack circadian responses to light (Abstract; p. 2827, second and third full paragraphs; p. 2828, right column, first full paragraph; p. 2830, Figure 3). However, the state of the art does not indicate any structure by which constitutively active PhyB polypeptides can be recognized. The specification does not disclose any structural feature by which constitutively active PhyB proteins may be identified.
MPEP § 2163 states that the written description requirement for a claimed genus may be satisfied through sufficient description of a representative number of species by actual reduction to practice, or by disclosure of relevant, identifying characteristics, i.e., structure or other physical and/or chemical properties, by functional characteristics coupled with a known or disclosed correlation between function and structure, or by a combination of such identifying characteristics, sufficient to show the applicant was in possession of the claimed genus. A “representative number of species” means that the species which are adequately described are representative of the entire genus. See, e.g., AbbVie Deutschland GMBH v. Janssen Biotech, 759 F.3d 1285, 111 USPQ2d 1780 (Fed. Cir. 2014). When there is substantial variation within a genus, as here in which the genus comprises hundreds of thousands of plant species, ELF3 gene sequences, and loss-of-function variants thereof, and PhyB polypeptide sequences, and constitutively active variants thereof, one must describe a sufficient variety of species to reflect the variation within the genus. The severity of the effect of undescribed elf3 alleles on specific aspects of the development and/or developmental plasticity of undisclosed plants is unpredictable. The effect of undescribed PhyB alleles on specific aspects of the development and/or developmental plasticity of undisclosed plants is unpredictable. Accordingly, the combination of undescribed elf3 alleles and undescribed PhyB alleles in undisclosed plants is even more unpredictable than the effect of either allele alone. Therefore, a single Arabidopsis mutant comprising a single combination of the recited elf3 and PhyB alleles and a single T. arvense mutant comprising a single combination of the recited elf3 and PhyB alleles are not sufficiently representative of the species as broadly encompassed by claim 1. Accordingly, claim 1 lacks adequate written description.
Claims 31-32, 46-47, and 89-91 do not sufficiently limit the recitations encompassing all plants, all elf3 loss-of-function mutations, and/or all constitutively active PhyB polypeptide sequences to overcome the deficiencies of claim 1. Accordingly, claims 31-32, 46-47, and 89-91 also lack adequate written description.
Claim Rejections - 35 USC § 103
10. 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.
11. Claims 1, 31-32, 46-47, 89, and 91 are rejected under 35 U.S.C. 103 as being unpatentable over Reed et al. (Plant Physiology, April 2000, Vol. 122, pp. 1149–1160 (previously cited)), as evidenced by Hirschfeld et al. (Genetics. 1998; 149(2):523–535 (V)), Sharrock and Quail. (Genes & Development. 1989; 3:1745-1757 (W)), and (Box et al., Current Biology. 2015; 25:194–199 (X)), in view of Jeong et al. (Plant Physiol. 2016 Jun 20;171(4):2826–2840 (U)).
For clarity of the record, the Examiner understands and interprets “developmental plasticity” to be defined as the ability of an organism with a specific set of genes to develop different physical or behavioral traits depending on its early environmental conditions. If this differs from Applicant’s intended recitation, Applicant is respectfully requested to clarify the intended recitation.
Regarding claims 1 and 32, Reed teaches a genetically modified plant or part thereof, plant cell, or seed exhibiting reduced developmental plasticity, comprising: a loss-of-function mutation in an endogenous polynucleotide encoding an EARLY FLOWERING 3 (ELF3) protein, wherein the loss-of-function mutation disrupts expression of the ELF3 protein; and a polynucleotide sequence encoding a constitutively expressed phytochrome B (phyB) photoreceptor; wherein the genetically modified plant exhibits reduced developmental plasticity in response to changes in environmental conditions during growth and modified circadian function (Abstract; p. 1150, “Mutant Alleles and Double Mutants”; p. 1151, “Construction of Transgenic Plants”; p. 1152, “Isolation and Morphology of elf3 Mutants”; p. 1152-1153, “Effects of elf3-7 on Circadian Rhythms”; pp. 1155-1156, “An elf3 Null Mutation Does Not Eliminate phyB-Mediated Hypocotyl Elongation Control”; p. 1155-1156, paragraph beginning “To test the effect of elf3…”).
Though Reed teaches a constitutively expressed PhyB polypeptide, Reed is silent with regard to a constitutively active PhyB polypeptide.
However, Jeong suggests that constitutively active alleles of a gene are useful (p. 2827, left column, second full paragraph); and discloses constitutively active versions of PhyB polypeptides, that constitutively active PhyB alleles confer a strong resistance to circadian responses to light, and that Arabidopsis plants constitutively expressing constitutively active PhyB polypeptides under the control of a 35S promoter lack circadian responses to light (Abstract; p. 2827, second and third full paragraphs; p. 2828, right column, first full paragraph; p. 2830, Figure 3).
The combination of Reed and Jeong renders obvious a genetically modified plant or part thereof, plant cell, or seed exhibiting reduced developmental plasticity, comprising: a loss-of-function mutation in an endogenous polynucleotide encoding an EARLY FLOWERING 3 (ELF3) protein, wherein the loss-of-function mutation disrupts expression of the ELF3 protein; and a polynucleotide sequence encoding a constitutively active phytochrome B (phyB) photoreceptor; wherein the genetically modified plant exhibits reduced developmental plasticity in response to changes in environmental conditions during growth and modified circadian function.
The level of ordinary skill in the plant biotechnology art is high as evidenced by both Reed and Jeong. It would have been prima facie obvious for one of ordinary skill in the art to modify the PhyB polypeptide sequence constitutively expressed in the plant disclosed by Reed with the constitutively active PhyB polypeptide sequence disclosed by Jeong. One of ordinary skill in the art would have been motivated to do so because Reed teaches that Arabidopsis elf3 loss-of-function mutants that overexpress PhyB are less sensitive to external developmental stimuli such as light and temperature. Therefore, a person growing said plants would be able to grow plants and/or crops comprising said mutations more uniformly than those lacking said mutations, which would allow more predictable and consistent harvesting. Similarly, Jeong teaches that constitutively active PhyB alleles also confer a light-independent phenotype to Arabidopsis (p. 2827, left column, second full paragraph). Thus, one of ordinary skill in the art would have been motivated to modify the PhyB polypeptide disclosed by Reed to comprise the useful modifications disclosed by the Jeong. Accordingly, one of ordinary skill in the art would have been motivated to produce the claimed invention with a reasonable expectation of success and without any surprising or unexpected results.
Regarding claim 31, in addition to the teachings discussed above, Reed teaches a constitutively expressed Arabidopsis thaliana phyB polypeptide (Abstract; p. 1150, “Mutant Alleles and Double Mutants”). Reed discloses that the gene expression construct encoding the constitutively expressed phyB polypeptide was obtained from R. Sharrock as described by Hirschfeld (p. 1150, “Mutant Alleles and Double Mutants”). Hirschfeld discloses the cDNA of the gene expression construct described and used by Reed was originally described by Sharrock and Quail (p. 524, “Plant materials and growth conditions”, second paragraph). As evidenced by the phyB polypeptide sequence disclosed by Sharrock and Quail (Figure 2; see sequence alignment attached to the end of Sharrock and Quail reference), the A. thaliana phyB polypeptide comprises a sequence having at least 96% sequence identity to SEQ ID NO:26. Accordingly, the A. thaliana phyB polypeptide disclosed by Reed anticipates a phyB polypeptide having as little as 75% sequence identity to SEQ ID NO:26.
Regarding claim 32, in addition to the teachings discussed above, Reed teaches an Arabidopsis thaliana phyB nucleotide sequence (Abstract; p. 1150, “Mutant Alleles and Double Mutants”). Reed discloses that the gene expression construct encoding the constitutively expressed phyB polypeptide was obtained from R. Sharrock as described by Hirschfeld. Hirschfeld discloses the cDNA of the gene expression construct described and used by Reed was originally described by Sharrock and Quail (p. 524, “Plant materials and growth conditions”, second paragraph). As evidenced by the phyB cDNA sequence disclosed by Sharrock and Quail (Figure 2; see sequence alignment attached to the end of Sharrock and Quail reference), the A. thaliana phyB nucleotide sequence comprises a sequence having at least 86% sequence identity to SEQ ID NO:25. Furthermore, Jeong discloses mutations that confer constitutive activation to Arabidopsis PhyB polypeptides (Abstract; p. 2827, second and third full paragraphs; p. 2828, right column, first full paragraph). Accordingly, the A. thaliana nucleotide sequence encoding a phyB polypeptide as disclosed by Reed in view of Jeong renders obvious a phyB nucleotide sequence having as little as 75% sequence identity to SEQ ID NO:25.
Regarding claim 46, in addition to the teachings discussed above, the modified plant disclosed by Reed comprises a constitutively inactivated temperature input to the circadian clock and a constitutively activated light input to the circardian clock (p. 1152, Figure 1). Though Reed is silent regarding the response of the circadian response of the modified plant to temperature, it is well-established in the art (see: Box et al., Current Biology. 2015; 25:194–199 (U)) that Arabidopsis ELF3 controls growth responses to temperature and that elf3 loss-of-function mutants have constitutively inactivated circadian responses to temperature (p. 196, Figure 2; p. 195, first and second full paragraph; p. 197, right column, first full paragraph). Accordingly, the elf3 loss-of-function allele taught by Reed anticipates this claim limitation.
Regarding claim 47, in addition to the teachings discussed above, the modified plant disclosed by Reed is not etiolated (p. 1152, Figure 1), flowers earlier (p. 1152, right column, first full paragraph; p. 1153, Table 1), and has a reduced cellular elongation response to increasing temperature thereby reducing listing in the field. As stated above in the rejection of claim 46, the mutants taught by Reed have constitutively inactivated circadian responses to temperature. Therefore, said plant has a reduced cellular elongation response to increasing temperature. The Office also notes that the claim does not require the modified plant to comprise each of the recited traits, only some combination of said traits. Furthermore, the PhyB mutations taught by Jeong reduce etiolation (Abstract; p. 2827, second and third full paragraphs; p. 2828, right column, first full paragraph; p. 2830, Figure 3).
Regarding claims 89 and 91, in addition to the teachings discussed above, the constitutively active phyB photoreceptor disclosed by Reed is encoded by an exogenous expression construct comprising a promoter operably linked to a polynucleotide encoding the constitutively active phyB photoreceptor (Hirschfeld, p. 524, “Plant materials and growth conditions”, second full paragraph), wherein the phyB polypeptide is encoded by a nucleic acid sequence having at least 86% sequence identity to SEQ ID NO:25. As discussed above in the rejection of claim 32, the A. thaliana phyB nucleotide sequence disclosed by Reed comprises a sequence having at least 86% sequence identity to SEQ ID NO:25.
Accordingly, the claimed invention is anticipated by the prior art.
12. Claim 49 is rejected under 35 U.S.C. 103 as being unpatentable over Reed et al. (Plant Physiology, April 2000, Vol. 122, pp. 1149–1160 (previously cited)), as evidenced by Hirschfeld et al. (Genetics. 1998; 149(2):523–535 (V)), Sharrock and Quail. (Genes & Development. 1989; 3:1745-1757 (W)), (Box et al., Current Biology. 2015; 25:194–199 (X)), and NCBI Reference Sequence: NM_128153.3 (NCBI. NCBI Reference Sequence: NM_128153.3, published 02/14/2019 (Y)), in view of Jeong et al. (Plant Physiol. 2016 Jun 20;171(4):2826–2840 (U)), and further in view of Chopra (The Plant Journal. 2018; 96:1093–1105 (Z)).
Regarding claim 49, the teachings of Reed and Jeong are as discussed above. In addition to the teachings discussed above, Reed teaches a modified A. thaliana plant comprising a polynucleotide encoding an ELF3 protein wherein the polynucleotide encoding the ELF3 protein comprises a loss-of-function mutation; and a polynucleotide encoding a constitutively active PhyB photoreceptor, wherein the polynucleotide comprises a nucleic acid sequence comprising at least 86% sequence identity to SEQ ID NO:25, as evidenced by the phyB cDNA sequence disclosed by Sharrock and Quail (Figure 2; see sequence alignment attached to the end of Sharrock and Quail reference; see also rejection of claim 32 under 35 U.S.C. 102). As evidenced by NCBI Reference Sequence: NM_128153.3, the A. thaliana ELF3 polynucleotide sequence comprises a nucleic acid sequence comprising at least 90% sequence identity with SEQ ID NO:22 (see alignment below).
Reed does not teach Thlaspi arvensis.
However, A. thaliana is a well-known and well-established model plant species employed in translation genomics. For example, Chopra discloses that T. arvense is desirable as an oilseed crop, Arabidopsis and T. arvense share key features that facilitate the use of research on Arabidopsis to guide the efforts towards pennycress improvement, for many Arabidopsis genes there exists a single, highly similar candidate orthologous gene in T. arvense, forward genetic screens in Arabidopsis are useful for identifying similar mutants in T. arvense (Abstract; pp. 1093-1094, “Introduction”, second and third paragraphs in particular).
The combined teachings of Reed, Jeong, and Chopra render obvious a modified T. arvense plant comprising a polynucleotide encoding an ELF3 protein wherein the polynucleotide encoding the ELF3 protein comprises a loss-of-function mutation, wherein the ELF3 polynucleotide sequence comprises a nucleic acid sequence comprising at least 90% sequence identity with SEQ ID NO:22; and a polynucleotide encoding a constitutively active PhyB photoreceptor, wherein the polynucleotide comprises a nucleic acid sequence comprising at least 86% sequence identity to SEQ ID NO:25.
The level of ordinary skill in the plant biotechnology art is high as evidenced by both Reed, Jeong, and Chopra. The motivation for combining the teachings of Reed and Jeong are as discussed above. It would have been prima facie obvious for one of ordinary skill in the art to modify a T. arvensis plant to comprise a constitutively expressed and constitutively active PhyB photoreceptor and a loss-of-function mutation in an endogenous ELF3 gene. One of ordinary skill in the art would have been motivated to do so because Reed teaches that Arabidopsis elf3 loss-of-function mutants that overexpress PhyB are less sensitive to external developmental stimuli such as light and temperature. Therefore, a person growing said plants would be able to grow the plants more uniformly, which would allow more predictable and consistent harvesting. One of ordinary skill in the art would be motivated to apply the teachings of Reed and Jeong to a T. arvense plant to generate an elf3 mutant plant that overexpresses PhyB because of the agricultural and economic potential of T. arvense as an oilseed crop as discussed by Chopra (Abstract; pp. 1093-1094, “Introduction). Accordingly, one of ordinary skill in the art would have been motivated to produce the claimed invention with a reasonable expectation of success and without any surprising or unexpected results.
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13. Claim 90 is rejected under 35 U.S.C. 103 as being unpatentable over Reed et al. (Plant Physiology, April 2000, Vol. 122, pp. 1149–1160 (previously cited)), as evidenced by Hirschfeld et al. (Genetics. 1998; 149(2):523–535 (V)), Sharrock and Quail. (Genes & Development. 1989; 3:1745-1757 (W)), and (Box et al., Current Biology. 2015; 25:194–199 (X)), in view of Jeong et al. (Plant Physiol. 2016 Jun 20;171(4):2826–2840 (U)), and further in view of Töpfer et al. (Nucleic acids research. 1987; 15(14):5890 (Z)).
Regarding claim 90, the teachings of Reed and Jeong are as discussed above. Reed is silent with regard to a sequence having at least 75% sequence identity to SEQ ID NO:24. However, Applicant indicates that an expression construct encoding a constitutively active phyB construct comprises a nucleic acid sequence having at least 75% sequence identity to SEQ ID NO:24[0024]. In the same paragraph, Applicant indicates that said expression construct may also comprise a 35S promoter. In fact, comparison of SEQ ID NO:24 with the CaMV 35S promoter sequence disclosed by Töpfer indicates that SEQ ID NO:24 comprises a sequence having at least 97% sequence identity to the CaMV 35S promoter sequence disclosed by Töpfer (see sequence alignment included below). Further analysis indicates that SEQ ID NO:24 also comprises a sequence having at least 99% sequence identity to the phyB nucleic acid sequence disclosed by Reed as evidenced by Sharrock and Quail. Therefore, the Office interprets SEQ ID NO:24 to comprise a nucleic acid sequence encoding a CaMV 35S promoter sequence for the constitutive expression of a phyB polypeptide encoded by a nucleic acid sequence having at least 99% sequence identity to an A. thaliana nucleic acid sequence encoding a phyB polypeptide. The phyB overexpressing plants disclosed by Reed comprise an exogenous expression construct comprising a CaMV 35S promoter and a nucleic acid sequence encoding a phyB polypeptide for the constitutive expression of the phyB polypeptide (p. 1151, “Construction of Transgenic Plants”, first paragraph; p. 1152, Figure 1). Applicant’s SEQ ID NO.24 does not appear to comprise any features that would provide any surprising or unexpected effects in a plant comprising said construct in comparison to a plant comprising the phyB overexpression construct disclosed by Reed. The design and use of expression constructs to drive the expression of a particular gene is a simple design parameter that is routine and ordinary for a person of skill in the art. Therefore, a plant comprising an expression construct comprising a nucleic acid sequence encoding a phyB polypeptide constitutively expressed under the control of a 35S promoter (i.e., SEQ ID NO:24) is obvious and would produce no surprising and or unexpected results in view of the phyB overexpressing plants and constructs disclosed by Reed.
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Conclusion
14. No claim is allowed.
Examiner’s Contact Information
15. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEQUANTARIUS J SPEED whose telephone number is (703)756-4779. The examiner can normally be reached M-F; 9AM-5PM ET.
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/DEQUANTARIUS JAVON SPEED/Junior Examiner, Art Unit 1663
/Amjad Abraham/SPE, Art Unit 1663
