Ex Parte Gupta et al

Patent Trial and Appeal Board

Aug 29, 2016

11548951 (P.T.A.B. Aug. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111548,951 10/12/2006
28624 7590 08/31/2016
WEYERHAEUSER COMPANY
INTELLECTUAL PROPERTY DEPT., CH 1127
P.O. BOX 9777
FEDERAL WAY, WA 98063
FIRST NAMED INVENTOR
Pramod K. Gupta
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
25935A 6181
EXAMINER
HWU,JUNE
ART UNIT PAPER NUMBER
1661
NOTIFICATION DATE DELIVERY MODE
08/31/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patents@weyerhaeuser.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PRAMOD K. GUPTA, DIANE G. HOLMSTROM,
BONNIE LARSON, SUSAN D. RAYFIELD,
andANTHONYP. SWANDA1
Appeal2014-002513
Application 11/548,951
Technology Center 1600
Before FRANCISCO C. PRATS, MELANIE L. McCOLLUM, and
JOHN G. NEW, Administrative Patent Judges.
McCOLLUM, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an
embryo development system. The Examiner has rejected the claims as
obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Claims 1-3, 5, and 6 are pending and on appeal (App. Br. 3). Claim 1
is representative and reads as follows (emphasis added):
1 Appellants identify the real party in interest as Weyerhaeuser NR Company
(App. Br. 1 ).
Appeal2014-002513
Application 11/548,951
1. A system for developing plant somatic embryos comprising:
(a) a medium reservoir containing a liquid development medium;
(b) a culture chamber comprising a body defining a development
medium inlet and a development medium outlet, wherein the development
medium inlet is connected to the medium reservoir;
( c) a porous membrane having an upper surface and a lower
surface disposed on a membrane support within the culture chamber,
wherein the porous membrane is adapted to support plant somatic embryos
on the upper surface of the porous membrane, and wherein the porous
membrane does not absorb the liquid development medium; and
( d) a pump that is connected to the medium reservoir and to the
development medium inlet of the culture chamber, wherein, in operation, the
pump intermittently moves the liquid development medium from the
reservoir to the culture chamber through the development medium inlet such
that the level of the liquid development medium in the culture chamber is
sufficiently high so that liquid development medium intermittently contacts
the lower swface of the porous membrane, and, when plant somatic
embryos are disposed on the upper surface of the porous membrane, the
liquid development medium intermittently wets a portion of each plant
somatic embryo disposed on the upper swface of the porous membrane, but
does not completely wet each plant somatic embryo in the liquid
development medium.
Claims 1-3, 5, and 6 stand rejected under 35 U.S.C. § 103(a) as
obvious over Etienne2 in view of Levin3 and Gupta4 (Ans. 3).
The Examiner relies on Etienne for teaching "a system for somatic
embryogenesis in Hevea brasiliensis using a temporary immersion" having
2 H. Etienne et al., Improvement of Somatic Embryogenesis in Hevea
Brasiliensis (Mull. Arg.) Using the Temporary Immersion Technique, 33 In
Vitro Cell. Dev. Biol.-Plant 81-87 (1997).
3 Levin, US 5,141,866, issued Aug. 25, 1992.
4 Pramod K. Gupta & Roger Timmis, Conifer Somatic Embryo Production
From Liquid Culture, Plant Biotechnology & In Vitro Biology in the 21st
Century 49-52 (1999).
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Application 11/548,951
many of the features of the claimed system (id. at 4--5). In particular, the
Examiner finds that Etienne teaches that the "plant explant is placed on a
screen disc ... [that] has a mesh size of 250 µm and ... does not appear to
absorb the liquid medium" (id. at 4). The Examiner also finds that Etienne
does "not teach that the plant somatic embryos disposed on the upper surface
of the porous membrane wets a portion of each somatic embryo disposed on
the upper surface of the porous membrane and does not completely immerse
the plant somatic embryo in liquid development medium" (id. at 5).
The Examiner relies on Levin for teaching "a system for semi-
automated plant tissue culture" having a "screening element 26 which is a
fine 600 micron mesh nylon screen (porous membrane that does not absorb
the development medium)" (id.). The Examiner also finds that Levin
teaches:
The level of the medium in the vessel is sufficiently high so that
the medium is in contact of the lo\~1er surface of the screening
element so that the liquid medium passes through the screening
element and wets a portion of each plant tissue disposed on the
upper surface of the screening element but does not completely
immerse the plant tissue in liquid medium.
(Id. at 5-6.)
The Examiner relies on Gupta for teaching "a method of producing
conifer somatic embryo[ s] in liquid culture[,] ... that Douglas fir embryo[ s]
were grown in a semi-continuous (intermittent[]) bioreactor," and that the
"development medium wets the lower surface of the pads to the developing
embryos on top" (id. at 6). The Examiner concludes:
[O]ne of ordinary skill in the art would be motivated to use the
intermittent immersion system as taught by Etienne et al with the
liquid medium that is level to the screening element so that it
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Appeal2014-002513
Application 11/548,951
wets a portion of each plant tissue as taught by Levin because ...
Gupta et al taught culturing the conifer somatic embryos in an
intermittent bioreactor system which produced high quality
embryos.
(Id. at 9.)
FINDINGS OF FACT
1. Etienne discloses a "culture procedure using temporary
immersion in a liquid medium ... for somatic embryogenesis of Hevea
brasiliensis" (Etienne 81: Abstract).
2. In particular, Etienne discloses:
The apparatus used was a I-liter autoclavable filtration unit ...
with two compartments (Fig. 1 ). We modified the container by
connecting the upper and lower compartments via a glass tube
and placing a screen disc (mesh size 250 µm) in the bottom of
the upper compartment. The plant material was placed on the
screen disc in the upper section with liquid medium in the lower
section. When the lower compartment was pressurized with an
air pump, the medium vvas pushed into the upper compartment.
We controlled immersion frequency and duration by connecting
the pump to a timer switch. When the pressure was released, the
liquid flowed back down again. One minute of immersion every
12 h was sufficient except for conversion (15 min every 6 h).
(Id. at 82.)
3. Etienne also discloses: "Temporary immersion during somatic
embryo development substantially increased embryo production and had a
positive effect on the frequency of germination (Table 2). Embryo
formation was improved and somatic embryo morphology was modified,
i.e., formation of embryos with cotyledonary shape was favored with clear
polarization ... and two distinct cotyledons." (Id. at 83.)
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Appeal2014-002513
Application 11/548,951
4. In addition, Etienne discloses:
The positive effects seem to be linked to the way the liquid
medium is used. Culture by temporary immersion combines the
advantages of constant immersion with those of partial
immersion with an inert support . . . and avoids the main
drawbacks such as vitrification and anoxia for constant
immersion, and inefficient absorption and increased labor for
partial immersion. The entire surface of the plant material comes
into uniform, direct contact with the nutrients in the medium,
even when no longer immersed, because a film of medium is
retained on the plant tissue by capillarity. This film is too thin to
hinder gas exchange, and its chemical composition is renewed
each time the material is reimmersed. . . . [T]his contact can
easily be adjusted by programming immersion frequency and
duration in line with plant cell requirements. The risk of
vitrification, which is common with constant and even partial
immersion ... is therefore significantly reduced.
(Id. at 85-86.)
5. Levin "relates to a process for plant tissue culture propagation"
(Levin, col. 1, 11. 11-12).
6. Levin discloses:
a plant tissue culture vessel provided with a substantially flat fine
screening element elevated above the inner bottom surface of the
vessel, said vessel being sterilizable, substantially sealable and
adapted for growing plant tissue cultures supported on the
surface of said screening element in optimal contact with culture
medium filling said vessel to the level of said screening element,
said screening element being sized to permit the passage of said
culture medium therethrough while retaining said tissue culture
on the surface thereof.
(Id. at col. 17, 11. 31--42.)
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Application 11/548,951
7. Levin also discloses:
When a mixture of plant tissue and medium is dispensed
to the presently proposed vessel the medium passes through the
screen while the plant tissue is held by the screen. When the
mixture is added until the level of the medium reaches the level
of the screen, the plant material lies on an even layer on top of a
medium base.
(Id. at col. 18, 11. 26-31.)
8. In particular, Levin discloses "an autoclavable polycarbonate
vessel 25 fitted with a fine 600 micron mesh autoclavable nylon screen 26
one cm above the inner bottom surface 27 of the vessel" (id. at col. 18,
11. 56-58).
9. Levin also discloses:
In operative use, medium/plant tissue mixture is evenly
dispensed on the surface of the screen 26. When the medium
reaches the level of the screen-dispensing is terminated. The
vessel is thus filled in such a manner that an even layer of plant
tissue rests on/and in good contact with a medium base and the
vessel is then sealed with its cover 30.
(Id. at col. 19, 11. 3-9.)
10. Gupta discloses:
[W]e have used a bioreactor for cotyledonary embryo
development of Douglas-fir. In the bioreactor, the medium was
supplied semi-continuously from the lower surface of the pads to
the developing embryos on the top. Development medium was
pumped from the reservoir into the bioreactor until it made
contact with the lower surface of the pads. Medium was
absorbed in the pads by capillary action, and after few hours,
medium was pumped out to the reservoir. This was repeated at
regular intervals until mature cotyledonary embryos developed.
Higher yields of good quality embryos were produced in this
bioreactor.
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Application 11/548,951
(Gupta 51-52.)
ANALYSIS
Etienne discloses a system for developing plant somatic embryos
comprising a medium reservoir, a culture chamber, a porous membrane, and
a pump (Findings of Fact (FF) 1-2). Specifically, Etienne discloses a pump
that intermittently moves liquid development medium from the reservoir to
the culture chamber such that the level of liquid development medium in the
culture chamber is sufficiently high so that the liquid development medium
intermittently contacts the lower surface of the porous membrane and, when
plant somatic embryos are disposed on the upper surface of the porous
membrane, the liquid development medium intermittently wets each plant
somatic embryo disposed on the upper surface of the porous membrane (id.).
Levin and Gupta each disclose that the liquid development medium
wets a portion of the plant material but does not completely wet the plant
material (FF 7 & 9-10). In view of the disclosure in Gupta of a system that
is both semi-continuous (intermittent) and does not immerse the plant
material (FF 10), we agree with the Examiner that it would have been
obvious to modify Etienne's system such that, when plant somatic embryos
are disposed on the upper surface of the porous membrane, the liquid
development medium intermittently wets a portion of each plant somatic
embryo disposed on the upper surface of the porous membrane, but does not
completely wet each plant somatic embryo in the liquid development
medium.
Appellants argue:
[T]he cited references, alone or in combination, fail to teach or
suggest a system for developing plant somatic embryos where
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Application 11/548,951
(1) the liquid development medium intermittently contacts a
lower surface of the porous membrane, and (2) the liquid
development medium intermittently wets a portion of each plant
somatic embryo disposed on the upper surface of the porous
membrane.
(App. Br. 11.) We are not persuaded.
First, we agree with the Examiner that Etienne discloses a system for
developing plant somatic embryos where the liquid development medium
intermittently contacts a lower surface (as well as the upper surface) of the
porous membrane (FF 1-2). As recognized by the Examiner, Etienne's
system does not wet only a portion of (that is, does not completely wet) each
plant somatic embryo (Ans. 5). However, as discussed above, we agree with
the Examiner that Levin and Gupta overcome this deficiency (FF 7 & 9-10).
Appellants also argue that the cited references "provide no
expectation that plant somatic embryos could successfully develop in a
different type of system where the somatic embr1os are only intermittently
contacted with liquid development medium and the embryos are not
completely immersed in liquid development medium" (App. Br. 13). We
are not persuaded.
Gupta specifically discloses that "the medium was supplied semi-
continuously from the lower surface of the pads to the developing embryos
on the top," that the "medium was pumped from the reservoir into the
bioreactor until it made contact with the lower surface of the pads," and that
"good quality embryos were produced" (FF 10 (emphasis added)). Given
this disclosure, we conclude that the evidence supports the Examiner's
position that there would have been a reasonable expectation for success.
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Application 11/548,951
In addition, Appellants argue:
In view of the teaching of Etienne et al. that vitrification is
common with constant and even partial immersion, there would
be no reason to combine the "intermittent" immersion system of
Etienne et al. with the constant and partial immersion systems of
Levin and Gupta et al. because one would expect vitrification to
occur.
(Reply Br. 4.) We are not persuaded.
Etienne discloses that, with its temporary immersion system, the "risk
of vitrification, which is common with constant and even partial immersion
... is ... significantly reduced" (FF 4). Rather than teaching away from the
combination, we conclude that this teaching suggests intermittent contact
with the liquid development medium even in the partial immersion system of
Levin.
CONCLUSION
The evidence supports the Examiner's conclusion that Etienne, Levin,
and Gupta suggest the system of claim 1. We therefore affirm the
obviousness rejection of claim 1. Claims 2, 3, 5, and 6 have not been argued
separately and therefore fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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