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 .
Status of the Claims
The status of the claims dated 7 February 2025, is as follows:
Claims 1-5, 15, 23, 28-29, 38, 45, 53-54, 62-63, 70, 74-75, 79, 104 are currently pending.
Claims 1-5, 15, 23, 28-29, 38, 45, 53-54, 62-63, 70, 74-75, 79, 104 have been hereby examined.
Priority
The present application filed on 7 February 2025, is a continuation of U.S. application number 17/274,369 which is in the national phase of PCT application PCT/US2020/056694 having an international filing date of 21 October 2020, which claims the benefit of U.S. provisional application number 62/924456 filed on 22 October 2019.
Information Disclosure Statement
References listed on the IDS, filed 13 November 2025 have been considered.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-5, 15, 23, 28-29, 38, 45, 53-54, 62-63, 70, 74-75, 79, 104 are rejected under 35 U.S.C. 103 as being unpatentable over Momma (US 2014/0196164 A1; 10 July 2014), Ram et al (1981. Modification of Growth and Sex Expression in Cannabis sativa by Aminoethoxyvinylglycine and Ethephon. Pfanzenphysiol Bd. 105: 165-172) and Soler et al (2016. Use of Embryos Extracted from Individual Cannabis sativa Seeds for Genetic Studies and Forensic Applications. J. Forensic Sci. 61: 494-500).
The claims are broadly drawn to a a method of inducing male flowers on genetically female Cannabis sativa plants and a method of producing a genetically female Cannabis sativa seed, an inbred or hybrid variety of Cannabis sativa comprising producing a genetically female Cannabis sativa plant by inducing one or more male flowers on a genetically female by applying the chemical ethylene inhibitor aminoethoxyvinylglycine (AVG) to the plant by root drench application, wherein the female plant comprises one or more pollen-producing fertile male flowers, producing seed by self- or cross-pollination of pollen from induced-male flowers (same plant or different plant with induced-male flowers) onto female flowers, growing a genetically female Cannabis sativa plant from a seed and repeating the steps for at least two generations. The methods are further drawn to wherein AVG is in a solution containing 0.3 mg to 3.5 mg of AVG per millimeter of stem diameter wherein the AVG solution, wherein all the seeds produced by self- or cross-pollination are genetically female, wherein the seed is produced on a commercial scale; growing a population of Cannabis sativa plans.
Momma et al teach a method for controlling the sexuality of hop, comprising applying a chemical to a hop female plant once or more and forming a fertile male flower capable of forming pollen on the female plant, wherein the chemical reduces a reaction with endogenous ethylene in the female plant and a seed or plant capable of being obtained through the method [abstract]. Momma et at teach a method for controlling the sexuality of hop, comprising applying amino ethoxy vinyl glycine (AVG) to a hop female plant once or more and thereby forming a fertile male flower capable of producing pollen on the female plant (which reads on inducing one or more male flowers on a genetically female plant by applying the chemical ethylene inhibitor aminoethoxyvinylglycine (AVG) to the plant wherein the female plant forms one or more pollen-producing fertile male flowers) [0019, 0020]. Momma et al teach applying the AVG to a plant before flower bud differentiation (which reads on wherein AVG is applied to the plant prior to flowering) [0023]. Momma et al teach the application may be carried out by any method (including foliar or root drench) as long as the reaction with endogenous ethylene in the female hop plant can be reduced including sprayed on or applied to the plant body or surrounding soil in a concentration at which the endogenous ethylene level can be reduced (which reads on wherein AVG is applied by root drench to the plant) [0055]. Momma et al teach the application of a chemical is carried out once or more before flower bud differentiation, however, since flower buds are differentiated sequentially, the application is desirably carried out several times when many male flowers need to be formed [0061]. Momma et al teach that the breeding procedures using the present invention remain unchanged from the conventional methods except that the treatment for forming a male flower is carried out. Specifically, there are no procedures different from the conventional methods in terms of cultivation, crossbreeding, seed production, progeny breeding (including multiple generation of breeding-for at least two generations), propagation or multiplication, evaluation, and selection. The breeding according to the present invention can crossbreed female plants with each other and so it is possible to obtain progenies directly utilizing the parents whose traits are already evaluated. Further, a progeny by the self-fertilization of any female plant can also be obtained (which reads on wherein the seed is produced by self-pollination of pollen from the induced one or more male flowers onto a female flower of the same plant; wherein the seed is produced by cross-pollination of pollen from the induced one or more male flowers onto a female flowers of a separate female plant; wherein the cross-pollination created inbred seed; wherein the cross-pollination creates hybrid seed) [0067, 0068]. Momma et al teach that the progenies between female plants are theoretically all female plants (which reads on wherein all the seeds produced on the self-pollinated plant are genetically female; wherein all the seeds produced on the cross-pollinated plant are genetically female) [0076].
Although Momma et al do not specifically teach wherein AVG is in a solution containing 0.3 mg to 3.5 mg of AVG per millimeter of stem diameter wherein the AVG solution is applied at a volume of at least 25 mL, Momma et al teach application of amino ethoxy vinyl glycine (AVG) solution in concentrations of 0.2 mM, 0.5 mM and 1 mM to the plant. One skilled in the art at the time the invention was made would have been motivated to use such a concentration as a matter of routine optimization and experimentation. The adjustment of particular conventional working parameters such as concentration of AVG is deemed to be merely a matter of selection and routine optimization that is well within the purview of the skilled artisan. Accordingly, this type of modification would have been no more than an effort to optimize results. In the absence of any showing of criticality or unexpected results, the particular percentage of AVG is an obvious variation of what was taught in the prior art and could be arrived at during routine experimentation/optimization.
Furthermore, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical (see MPEP 2144.05).
Momma et al does not teach using the methodology with Cannabis sativa plants, growing a population of genetically female plants, or production of genetically female Cannabis sativa seed on a commercial scale.
Ram et al teach that apical application of aminoethoxyvinylglycine (AVG) to female plants (5, 10, 25, 50 and 75 µg per plant) of Cannabis sativa induced the formation of fertile male flowers on the newly formed primary lateral branches [abstract]. Ram et al found that masculinization was evoked in the female Cannabis plants following AVG application and no intersexual flowers developed in response to 75µg AVG and the lateral branches bore predominantly male flowers [page 171, para. 2].
Soler et al teach that sex reversion using aminoethoxyvinylglycine to obtain functionally male flowers in genetically female plants with 100% X male gametes with which to fertilize X female gametes, resulting in an offspring of 100% female plants. These feminized varieties are currently the most popular in marijuana cultivation [page 494, para. 1; Table 1].
It would have been obvious to one of ordinary skill in the art at the time of the invention to use the methodology as taught by Momma et al with Cannabis sativa plants. Both plants are in the same family, Cannabaceae, and are phylogenetically closely related, sharing a single common ancestor. One would have been motivated to use the methodology as taught by Momma et al with Cannabis sativa plants because feminized varieties are currently the most popular in marijuana cultivation [Soler et al, page 494, para. 1]. Furthermore, the medicinal and recreational marijuana industries are economically important. One would have had a reasonable expectation of success given that Ram et al showed that AVG induced the formation of fertile male flowers in Cannabis sativa plants and use very similar methodologies as Momma using in the closely related genus Humulus (hops). Also, as taught by Soler et al, feminized varieties are currently the most popular in marijuana cultivation.
It would have been obvious to one of ordinary skill in the art at the time of the invention to produce seed by inducing one or more male flowers on a genetically female plant and pollinating a female flower with the pollen from the induced male flower. Momma et al teach inducing male flowers on a genetically female hops plant and crossbreeding the pollen produced by the induced male flowers with flowers of the same or different female plants. One would have been motivated to produce seed using pollen from an induced male flower with a female flower because feminized varieties are currently the most popular in marijuana cultivation [Soler et al, page 494, para. 1]. One would have had a reasonable expectation of success given that Ram et al showed that AVG induced the formation of fertile male flowers in Cannabis sativa plants and use very similar methodologies as Momma using in the closely related genus Humulus (hops). Furthermore, Ram et al showed that AVG induced the formation of fertile male flowers in Cannabis sativa plants.
It would have been obvious to one of ordinary skill in the art at the time of the invention to use the pollen produced by inducing one or more male flowers on a genetically female plant and pollinating a female flower with the pollen from the induced male flower. Common breeding techniques include producing seed from self-pollination (pollination of female flowers on the same plant) and cross pollination (pollination of female flowers on different plants including genetically identical female flowers, as well as pollination of females that are genetically different). It is also common in the industry and practiced by the skilled artesian to continue the breeding studies through successive generations (including backcrossing and out crossings). One would have been motivated to produce seed using pollen from an induced male flower with the same or different female flower and use the progeny in further breeding endevours because feminized varieties are currently the most popular in marijuana cultivation [Soler et al, page 494, para. 1]. One would have had a reasonable expectation of success given breeding practices are well known, commonly practiced and taught by Momma et al is a closely related genus, Humulus.
It would have been obvious to one of ordinary skill in the art at the time of the invention to produce seed, grow Cannabis sativa plants from the genetically female Cannabis sativa seed and to produce a population of genetically female Cannabis sativa plants on a commercial scale. One would have been motivated to grow and produce genetically female Cannabis sativa seeds and plants on a commercial scale because these feminized varieties are currently the most popular in marijuana cultivation [Soler et al, page 494, para. 1] and are medicinally and economically important crop plants. One would have had a reasonable expectation of success given that it is routine and commonly practiced in the marijuana cultivation industry.
Conclusion
No claim is allowed.
Examiner’s Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAREN M REDDEN whose telephone number is (571)270-0298. The examiner can normally be reached 730-6 Monday-Thursday.
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/KAREN M REDDEN/Primary Examiner, Art Unit 1661