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 .
Election/Restrictions
Applicant’s amendment of claims in the amendment submitted on 04/03/2026 is acknowledged. Applicant has canceled the original claim presentations 1-11. Applicant has added the new claims 12-14 which are entered here, since subject matter are related for culturing of the plant cell.
Applicant argues they have carefully reviewed the arguments presented in the Office Action and respectfully request entry of the Amendment and reconsideration of the claims in view of the remarks presented (Response to restriction election, page 3).
The request was found persuasive, therefore newly added claims 12-14 are examined in this office action as elected claims. Because Applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Therefore claims 12-14 are pending and are examined in this office action.
Title of the invention is not descriptive
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed because the Title is about agave plant cultures which is a succulent plant wherein the examining claims are about cultivating grain cells.
Objection to Abstract
The abstract of the disclosure is objected to because the abstract is about agave plant tissue and cell culture which is a succulent plant wherein the examining claims are about cultivating grain cells. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 13-14 are objected to because of the following informalities:
In claims 13-14 line 1, claims recite the term “Claim” with capital letter “C” in middle of the sentence, applicant is suggested to change to recite “claim” with small letter “c”.
In claim 13, the claim recite the term “Barely” which is incorrect spelling, applicants are advised to correctly spell it as “Barley”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112 - Indefiniteness
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 12-14 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. All dependent claims are included in these rejections unless they include a limitation that overcomes the deficiencies of the parent claim.
Regarding claim 12, Applicants state “mixture” in part (e). However, it is not understood whether Applicants intend the mixture stated in part (c) or part (d). Applicants should specify in part (e) which mixture, either (c) or (d), is intended. For instance, the mixture of (d).
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.
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.
Obvious over Patent ‘244 and further in view of Balcerek et al. and Luhrs et al.
Claims 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Whitton et al. (US patent No.: US 9,562,244 B2, Pub. Date: Feb. 7 , 2019) (Hereafter referenced as Patent ‘244), and further in view of Balcerek et al. (Published: 2016, Journal: Molecules 21, 1320; doi:10.3390/molecules21101320), and further in view of Luhrs et al. (Published: 1988, Journal: Planta 175:71 81).
Claims are drawn to a method for cultivating Barley grain cells, comprising preparing callus induction media including sugar, naphthalene acetic acid and water, establishing mixture, heating mixture, cultivating subculture of the culture and adding carbon dioxide, yeast, wherein the grain cell reproduce and are cultivated.
Regarding claim 12, Patent ‘244 teaches method of producing a photosynthetic product, the method preparing callus induction media by mixing 3% sucrose (sugar), 1% NAA and water in a plant producing grain as Agrotis tenuis (col. 27, lines 5-12, lines 27-42). Patent ‘244 teaches placing slice of plant piece in callus induction media and place it in 27oC (col.27, lines 35-41). The thumbnail size friable callus from the plant tissue and breakup into finely dispersed cells in a flask (col. 28, lines 5-10). Place the flask in a light room to 27oC until thick dispersed cell suspension culture observed (col. 28, lines 10-14).
Patent ‘244 teaches subculturing cells by adding to the fresh media (col. 28, lines 15-17).
Patent ‘244 teaches adding compressed CO2 in suspension culture (col. 28, lines 32-33).
Patent ‘244 teaches taking suspension culture in exponential phase of growth and thoroughly agitate and place it in light conditions pass through CO2 at concentration of 10% CO2 and allowing it to grow for 14 weeks before increasing concentration of CO2 to 40% (col. 28, lines 47-62).
Patent ‘244 claim 1 teaches method of non-algal plant cell suspension culture using water, light and carbonic acid to maintain non-algal plant cell for sugar comprising photosynthetic product. Patent ‘244 claim 9 teaches the sugar are mono-saccharide, a di-saccharide, glucose, sucrose, fructose or combination thereof.
Patent ‘244 claims 14, 18-19 and 35-36 teaches the method further comprise production of an alcohol (i.e. ethanol, claim 46) of a second culture of yeast cells which is maintained in the presence of the photosynthetic product (i.e. sugar, glucose, sucrose, fructose or combination thereof) generated by the first cell suspension culture to allow growth of the second culture and production of alcohol by the second culture.
Patent ‘244 teaches gaseous carbon dioxide dissolved in photosynthetic cell suspension culture and assists in the production of an enriched level of carbonic acid that can be used in the photosynthetic process (col. 8, lines 4-9).
Patent ‘244 claim 30 teaches the culture medium is maintained at pH of 4.5. Patent ‘244 teaches pH of the photosynthetic plant is maintained by a citric acid buffer (col. 13, lines 38-45, col.22, 1-15). Therefore, someone skilled in the art would supplement with citric acid.
Patent ‘244 teaches in second cell culture yeast convert sugar to ethanol (col. 16, lines 19-27).
Patent ‘244 teaches Glycerol was harvested from the culture fed with 40% CO2 (Col. 28 and 29, lines 47 and lines 1-3).
Patent ‘244 specifically does not teach the cultivated cell is from grain of the plant (i.e. Barley grain cells).
Furthermore, Balcerek et al. teaches Barley grain fermentable sugars present in sweet mashes including maltose, glucose or maltotriose (page 1, Abstract, Table 3). Therefore, the cell would have some components of fermentable sugars for fermentation. Balcerek et al. teaches during fermentation process yeast produces ethanol to promote alcohols, esters etc. (page 12, second paragraph), wherein the content of higher alcohols are strongly associated with yeast used for fermentation (page 13, second to last paragraph). Balcerek et al. teaches yeast was added to fermentation mashes prior fermentation of Barley and rye (page 14, paragraphs 1-3). Balcerek et al. teaches whisky has two major and distinct forms, malt whisky and grain whisky (page 2, paragraph 3).
Furthermore, Luhrs et al. teaches developing a cell suspension culture of Barley plant from embryo (page 72, left paragraph 1) which would be found in Barley grains and establishing cell suspension culture (page 72, left paragraph 3-4). Luhrs et al. teaches their method to produce more friable callus grew faster (page 78, left last paragraph) and the cell reproduced and formed aggregates which can be selected for by specific subculture regimes (page79, left paragraph 2).
Therefore it would have been obvious to a skilled in the art before the effective date of filling of the invention from teaching, suggestion and motivation from Patent ‘244 to utilize their method of ethanol production by cultivating the cell of a plant and cultivate the cell (i.e. embryo cells) of Barley grain so that it would produce ethanol or alcohol or Whiskey from the sugar as taught by Balcerek et al. and someone skilled in the art would use the method of Barley grain cell culture as taught by Luhrs et al. that would lead to method of cultivating barley grain cells.
Obvious over Patent ‘244 and further in view of Balcerek et al. and Ward et al.
Claims 12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Whitton et al. (US patent No.: US 9,562,244 B2, Pub. Date: Feb. 7 , 2019) (Hereafter referenced as Patent ‘244), and further in view of Balcerek et al. (Published: 2016, Journal: Molecules 21, 1320; doi:10.3390/molecules21101320), and further in view of Ward et al. (Published: 2001, Journal: In Vitro Cell. Dev. Biol. --Plant 37:361-368).
Claims are drawn to a method for cultivating Rye grain cells, comprising preparing callus induction media including sugar, naphthalene acetic acid and water, establishing mixture, heating mixture, cultivating subculture of the culture and adding carbon dioxide, yeast, wherein the grain cell reproduce and are cultivated.
Regarding claim 12, Patent ‘244 teaches method of producing a photosynthetic product, the method preparing callus induction media by mixing 3% sucrose (sugar), 1% NAA and water in a plant producing grain as Agrotis tenuis (col. 27, lines 5-12, lines 27-42). Patent ‘244 teaches placing slice of plant piece in callus induction media and place it in 27oC (col.27, lines 35-41). The thumbnail size friable callus from the plant tissue and breakup into finely dispersed cells in a flask (col. 28, lines 5-10). Place the flask in a light room to 27oC until thick dispersed cell suspension culture observed (col. 28, lines 10-14).
Patent ‘244 teaches subculturing cells by adding to the fresh media (col. 28, lines 15-17).
Patent ‘244 teaches adding compressed CO2 in suspension culture (col. 28, lines 32-33).
Patent ‘244 teaches taking suspension culture in exponential phase of growth and thoroughly agitate and place it in light conditions pass through CO2 at concentration of 10% CO2 and allowing it to grow for 14 weeks before increasing concentration of CO2 to 40% (col. 28, lines 47-62).
Patent ‘244 claim 1 teaches method of non-algal plant cell suspension culture using water, light and carbonic acid to maintain non-algal plant cell for sugar comprising photosynthetic product. Patent ‘244 claim 9 teaches the sugar are mono-saccharide, a di-saccharide, glucose, sucrose, fructose or combination thereof.
Patent ‘244 claims 14, 18-19 and 35-36 teaches the method further comprise production of an alcohol (i.e. ethanol, claim 46) of a second culture of yeast cells which is maintained in the presence of the photosynthetic product (i.e. sugar, glucose, sucrose, fructose or combination thereof) generated by the first cell suspension culture to allow growth of the second culture and production of alcohol by the second culture.
Patent ‘244 teaches gaseous carbon dioxide dissolved in photosynthetic cell suspension culture and assists in the production of an enriched level of carbonic acid that can be used in the photosynthetic process (col. 8, lines 4-9).
Patent ‘244 claim 30 teaches the culture medium is maintained at pH of 4.5. Patent ‘244 teaches pH of the photosynthetic plant is maintained by a citric acid buffer (col. 13, lines 38-45, col.22, 1-15). Therefore, someone skilled in the art would supplement with citric acid.
Patent ‘244 teaches in second cell culture yeast convert sugar to ethanol (col. 16, lines 19-27).
Patent ‘244 teaches Glycerol was harvested from the culture fed with 40% CO2 (Col. 28 and 29, lines 47 and lines 1-3).
Patent ‘244 specifically does not teach the cultivated cell is from grain of the plant (i.e. Rye grain cells).
Furthermore, Balcerek et al. teaches rye grain fermentable sugars present in sweet mashes including maltose, glucose or maltotriose (page 1, Abstract, Table 3). Therefore, the cell would have some components of fermentable sugars for fermentation. Balcerek et al. teaches during fermentation process yeast produces ethanol to promote alcohols, esters etc. (page 12, second paragraph), wherein the content of higher alcohols are strongly associated with yeast used for fermentation (page 13, second to last paragraph). Balcerek et al. teaches yeast was added to fermentation mashes prior fermentation of Barley and rye (page 14, paragraphs 1-3). Balcerek et al. teaches whisky has two major and distinct forms, malt whisky and grain whisky (page 2, paragraph 3) and α-amylase and the exoenzyme β-amylase would assist in whisky production also found in rye malt (page 2, Table 1).
Furthermore, Ward et al. teaches culture of immature and mature embryos cells of rye grains for further reproduction that produced callus efficiently (page 361, Abstract, left paragraph 1).
Therefore it would have been obvious to a skilled in the art before the effective date of filling of the invention from teaching, suggestion and motivation from Patent ‘244 to utilize their method of ethanol production by cultivating the cell of a plant and cultivate the cell (i.e. embryo cells) of Rye grain so that it would produce ethanol or alcohol or Whiskey from the sugar as taught by Balcerek et al. and someone skilled in the art would use the method of Rye grain cell (i.e. embryo cells from grains) culture as taught by Ward et al. that would lead to method of cultivating Rye grain cells.
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 § 2146 et seq. 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).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 12-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 9, 14, 18-19, 30, 35-36 and 46 of US patent No.: US 9,562,244 B2, (Hereafter referenced as Patent‘244), and further in view of Balcerek et al., and further in view of Ward et al. and further in view of Luhrs et al.
Claims are drawn to a method for cultivating Barley or Rye grain cells, comprising preparing callus induction media including sugar, naphthalene acetic acid and water, establishing mixture, heating mixture, cultivating subculture of the culture and adding carbon dioxide, yeast, wherein the grain cell reproduce and are cultivated.
Regarding claims 12-14, Patent ‘244 claim 1 recites a method of non-algal plant cell suspension culture using water, light and carbonic acid to maintain non-algal plant cell for sugar comprising photosynthetic product. Patent ‘244 claim 9 recites the sugar are mono-saccharide, a di-saccharide, glucose, sucrose, fructose or combination thereof.
Patent ‘244 claims 14, 18-19 and 35-36 recites the method further comprise production of an alcohol (i.e. ethanol, claim 46) of a second culture of yeast cells which is maintained in the presence of the photosynthetic product (i.e. sugar, glucose, sucrose, fructose or combination thereof) generated by the first cell suspension culture to allow growth of the second culture and production of alcohol by the second culture.
Patent ‘244 teaches gaseous carbon dioxide dissolved in photosynthetic cell suspension culture and assists in the production of an enriched level of carbonic acid that can be used in the photosynthetic process (col. 8, lines 4-9).
Patent ‘244 claim 30 teaches the culture medium is maintained at pH of 4.5. Patent ‘244 teaches pH of the photosynthetic plant is maintained by a citric acid buffer (col. 13, lines 38-45, col.22, 1-15). Therefore, someone skilled in the art would supplement with citric acid.
Patent ‘244 teaches in second cell culture yeast convert sugar to ethanol (col. 16, lines 19-27).
Patent ‘244 teaches Glycerol was harvested from the culture fed with 40% CO2 (Col. 28 and 29, lines 47 and lines 1-3).
Patent ‘244 specifically does not teach the cultivated cell is from grain of the plant (i.e. Barley (Claim 13) or Rye grain (claim 14) cells).
Furthermore, Balcerek et al. teaches rye grain fermentable sugars present in sweet mashes including maltose, glucose or maltotriose (page 1, Abstract, Table 3). Therefore, the cell would have some components of fermentable sugars for fermentation. Balcerek et al. teaches during fermentation process yeast produces ethanol to promote alcohols, esters etc. (page 12, second paragraph), wherein the content of higher alcohols are strongly associated with yeast used for fermentation (page 13, second to last paragraph). Balcerek et al. teaches yeast was added to fermentation mashes prior fermentation of Barley and rye (page 14, paragraphs 1-3). Balcerek et al. teaches whisky has two major and distinct forms, malt whisky and grain whisky (page 2, paragraph 3) and α-amylase and the exoenzyme β-amylase would assist in whisky production also found in rye malt (page 2, Table 1).
Furthermore, Luhrs et al. teaches developing a cell suspension culture of Barley plant from embryo (page 72, left paragraph 1) which would be found in Barley grains and establishing cell suspension culture (page 72, left paragraph 3-4). Luhrs et al. teaches their method to produce more friable callus grew faster (page 78, left last paragraph) and the cell reproduced and formed aggregates which can be selected for by specific subculture regimes (page79, left paragraph 2).
Furthermore, Ward et al. teaches culture of immature and mature embryos cells of rye grains for further reproduction that produced callus efficiently (page 361, Abstract, left paragraph 1).
Therefore it would have been obvious to a skilled in the art before the effective date of filling of the invention from teaching, suggestion and motivation from Patent ‘244 to utilize their method of ethanol production by cultivating the cell of a plant and cultivate the cell (i.e. embryo cells) of Rye or Barley grain so that it would produce ethanol or alcohol or Whiskey from the sugar as taught by Balcerek et al. and someone skilled in the art would use the method of Rye and Barley grain cell (i.e. embryo cells from grains) culture as taught by Ward et al. and Luhrs et al. that would lead to method of cultivating Rye or Barley grain cells.
Claims 12-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11895962 (Hereafter referenced as Patent ‘962), and further in view of Balcerek et al., and further in view of Ward et al. and further in view of Luhrs et al.
Regarding claims 12-14, Patent‘962 claim 1 recites a method for cultivating agave cells for the production of tequila, that includes preparing a callus introduction media including sugar, NAA and water, vitamin stock solution, place agave cells into the introduction media to incubate a callus formation, establish a mixture by placing the callus formation into an accelerator media, heating the mixture and use the culture to subculture and supplement with citric acid and add CO2 and yeast.
Patent ‘962 specifically does not teach the cultivated cell is from grain of the plant (i.e. Barley (Claim 13) or Rye grain (claim 14) cells).
Furthermore, Balcerek et al. teaches rye grain fermentable sugars present in sweet mashes including maltose, glucose or maltotriose (page 1, Abstract, Table 3). Therefore, the cell would have some components of fermentable sugars for fermentation. Balcerek et al. teaches during fermentation process yeast produces ethanol to promote alcohols, esters etc. (page 12, second paragraph), wherein the content of higher alcohols are strongly associated with yeast used for fermentation (page 13, second to last paragraph). Balcerek et al. teaches yeast was added to fermentation mashes prior fermentation of Barley and rye (page 14, paragraphs 1-3). Balcerek et al. teaches whisky has two major and distinct forms, malt whisky and grain whisky (page 2, paragraph 3) and α-amylase and the exoenzyme β-amylase would assist in whisky production also found in rye malt (page 2, Table 1).
Furthermore, Luhrs et al. teaches developing a cell suspension culture of Barley plant from embryo (page 72, left paragraph 1) which would be found in Barley grains and establishing cell suspension culture (page 72, left paragraph 3-4). Luhrs et al. teaches their method to produce more friable callus grew faster (page 78, left last paragraph) and the cell reproduced and formed aggregates which can be selected for by specific subculture regimes (page79, left paragraph 2).
Furthermore, Ward et al. teaches culture of immature and mature embryos cells of rye grains for further reproduction that produced callus efficiently (page 361, Abstract, left paragraph 1).
Therefore it would have been obvious to a skilled in the art before the effective date of filling of the invention from teaching, suggestion and motivation from Patent ‘962 to utilize their method of tequila production by cultivating the cell of a plant and cultivate the cell (i.e. embryo cells) of Rye or Barley grain so that it would produce Whiskey (a form of alcoholic drink as tequila) from the sugar as taught by Balcerek et al. and someone skilled in the art would use the method of Rye and Barley grain cell (i.e. embryo cells from grains) culture as taught by Ward et al. and Luhrs et al. that would lead to method of cultivating Rye or Barley grain cells.
Claims 12-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. US 12618029 B2 (Hereafter referenced as Patent ‘029), and further in view of Balcerek et al., and further in view of Ward et al. and further in view of Luhrs et al.
Regarding claims 12-14, Patent‘029 claims 1 recites a method for cultivating sugar cells that includes preparing a callus introduction media including sugar, NAA and water, placing the sugarcane leaf cells into the callus induction media to incubate a callus formation, establishing a mixture by placing the callus formation, heating the mixture, using mixture to cultivate subcultures supplemented by an acid and adding carbon dioxide and yeast, wherein the sugar cells reproduce.
Patent ‘029 specifically does not teach the plant is Agave plant.
Patent ‘029 specifically does not teach the cultivated cell is from grain of the plant (i.e. Barley (Claim 13) or Rye grain (claim 14) cells).
Furthermore, Balcerek et al. teaches rye grain fermentable sugars present in sweet mashes including maltose, glucose or maltotriose (page 1, Abstract, Table 3). Therefore, the cell would have some components of fermentable sugars for fermentation. Balcerek et al. teaches during fermentation process yeast produces ethanol to promote alcohols, esters etc. (page 12, second paragraph), wherein the content of higher alcohols are strongly associated with yeast used for fermentation (page 13, second to last paragraph). Balcerek et al. teaches yeast was added to fermentation mashes prior fermentation of Barley and rye (page 14, paragraphs 1-3). Balcerek et al. teaches whisky has two major and distinct forms, malt whisky and grain whisky (page 2, paragraph 3) and α-amylase and the exoenzyme β-amylase would assist in whisky production also found in rye malt (page 2, Table 1).
Furthermore, Luhrs et al. teaches developing a cell suspension culture of Barley plant from embryo (page 72, left paragraph 1) which would be found in Barley grains and establishing cell suspension culture (page 72, left paragraph 3-4). Luhrs et al. teaches their method to produce more friable callus grew faster (page 78, left last paragraph) and the cell reproduced and formed aggregates which can be selected for by specific subculture regimes (page79, left paragraph 2).
Furthermore, Ward et al. teaches culture of immature and mature embryos cells of rye grains for further reproduction that produced callus efficiently (page 361, Abstract, left paragraph 1).
Therefore it would have been obvious to a skilled in the art before the effective date of filling of the invention from teaching, suggestion and motivation from Patent ‘029 to utilize their method of cultivating sugar cells by cultivating the cell of a plant and cultivate the cell (i.e. embryo cells) of Rye or Barley grain so that it would produce Whiskey (a form of alcoholic drink as tequila) from the sugar as taught by Balcerek et al. and someone skilled in the art would use the method of Rye and Barley grain cell (i.e. embryo cells from grains) culture as taught by Ward et al. and Luhrs et al. that would lead to method of cultivating Rye or Barley grain cells.
Claims 12-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 17982444 (Hereafter referenced as Application ‘444), ), and further in view of Balcerek et al., and further in view of Ward et al. and further in view of Luhrs et al.
Regarding claims 12-14, Application ‘444 claims 1 recites a method for cultivating agave cells that includes preparing a callus introduction media including sugar, NAA and water, placing agave cells into the introduction media to incubate a callus formation and establish a mixture by placing the callus then heating the mixture, using mixture to cultivate subcultures supplemented by a citric acid and adding carbon dioxide and yeast.
Application ‘444 specifically does not teach the cultivated cell is from grain of the plant (i.e. Barley (Claim 13) or Rye grain (claim 14) cells).
Furthermore, Balcerek et al. teaches rye grain fermentable sugars present in sweet mashes including maltose, glucose or maltotriose (page 1, Abstract, Table 3). Therefore, the cell would have some components of fermentable sugars for fermentation. Balcerek et al. teaches during fermentation process yeast produces ethanol to promote alcohols, esters etc. (page 12, second paragraph), wherein the content of higher alcohols are strongly associated with yeast used for fermentation (page 13, second to last paragraph). Balcerek et al. teaches yeast was added to fermentation mashes prior fermentation of Barley and rye (page 14, paragraphs 1-3). Balcerek et al. teaches whisky has two major and distinct forms, malt whisky and grain whisky (page 2, paragraph 3) and α-amylase and the exoenzyme β-amylase would assist in whisky production also found in rye malt (page 2, Table 1).
Furthermore, Luhrs et al. teaches developing a cell suspension culture of Barley plant from embryo (page 72, left paragraph 1) which would be found in Barley grains and establishing cell suspension culture (page 72, left paragraph 3-4). Luhrs et al. teaches their method to produce more friable callus grew faster (page 78, left last paragraph) and the cell reproduced and formed aggregates which can be selected for by specific subculture regimes (page79, left paragraph 2).
Furthermore, Ward et al. teaches culture of immature and mature embryos cells of rye grains for further reproduction that produced callus efficiently (page 361, Abstract, left paragraph 1).
Therefore it would have been obvious to a skilled in the art before the effective date of filling of the invention from teaching, suggestion and motivation from Application ‘444 to utilize their method of cultivating sugar cells by cultivating the cell of a plant and cultivate the cell (i.e. embryo cells) of Rye or Barley grain so that it would produce Whiskey (a form of alcoholic drink as tequila) from the sugar as taught by Balcerek et al. and someone skilled in the art would use the method of Rye and Barley grain cell (i.e. embryo cells from grains) culture as taught by Ward et al. and Luhrs et al. that would lead to method of cultivating Rye or Barley grain cells.
Claims 12-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 19182557 (Hereafter referenced as Application ‘557), ), and further in view of Balcerek et al., and further in view of Ward et al. and further in view of Luhrs et al.
Regarding claims 12-14, Application ‘557 claims 1 recites a method for cultivating agave cells that includes preparing a callus introduction media including sugar, NAA and water, placing agave cells into the introduction media to incubate a callus formation and establish a mixture by placing the callus then heating the mixture, using mixture to cultivate subcultures supplemented by a citric acid and adding carbon dioxide and yeast, wherein agave cells reproduce.
Application ‘557 specifically does not teach the cultivated cell is from grain of the plant (i.e. Barley (Claim 13) or Rye grain (claim 14) cells).
Furthermore, Balcerek et al. teaches rye grain fermentable sugars present in sweet mashes including maltose, glucose or maltotriose (page 1, Abstract, Table 3). Therefore, the cell would have some components of fermentable sugars for fermentation. Balcerek et al. teaches during fermentation process yeast produces ethanol to promote alcohols, esters etc. (page 12, second paragraph), wherein the content of higher alcohols are strongly associated with yeast used for fermentation (page 13, second to last paragraph). Balcerek et al. teaches yeast was added to fermentation mashes prior fermentation of Barley and rye (page 14, paragraphs 1-3). Balcerek et al. teaches whisky has two major and distinct forms, malt whisky and grain whisky (page 2, paragraph 3) and α-amylase and the exoenzyme β-amylase would assist in whisky production also found in rye malt (page 2, Table 1).
Furthermore, Luhrs et al. teaches developing a cell suspension culture of Barley plant from embryo (page 72, left paragraph 1) which would be found in Barley grains and establishing cell suspension culture (page 72, left paragraph 3-4). Luhrs et al. teaches their method to produce more friable callus grew faster (page 78, left last paragraph) and the cell reproduced and formed aggregates which can be selected for by specific subculture regimes (page79, left paragraph 2).
Furthermore, Ward et al. teaches culture of immature and mature embryos cells of rye grains for further reproduction that produced callus efficiently (page 361, Abstract, left paragraph 1).
Therefore it would have been obvious to a skilled in the art before the effective date of filling of the invention from teaching, suggestion and motivation from Application ‘557 to utilize their method of cultivating sugar cells by cultivating the cell of a plant and cultivate the cell (i.e. embryo cells) of Rye or Barley grain so that it would produce Whiskey (a form of alcoholic drink as tequila) from the sugar as taught by Balcerek et al. and someone skilled in the art would use the method of Rye and Barley grain cell (i.e. embryo cells from grains) culture as taught by Ward et al. and Luhrs et al. that would lead to method of cultivating Rye or Barley grain cells.
This is a provisional nonstatutory double patenting rejection.
Summary
No claim is allowed.
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/SANTOSH SHARMA/ Examiner, Art Unit 1663
/DAVID H KRUSE/ Primary Examiner, Art Unit 1663
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