Ex Parte Tuinstra et al

Patent Trial and Appeal Board

Oct 29, 2018

12522847 (P.T.A.B. Oct. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/522,847 07/10/2009
26691 7590 10/29/2018
POTTER ANDERSON & CORROON LLP
ATTN: JANETE. REED, PH.D.
P.O. BOX 951
WILMINGTON, DE 19899-0951
FIRST NAMED INVENTOR
Mitchell R. Tuinstra
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.
KSURF-13408/WO- l/US 3677
EXAMINER
KOV ALENKO, MYKOLA V
ART UNIT PAPER NUMBER
1662
MAIL DATE DELIVERY MODE
10/29/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MITCHELL R. TUINSTRA and
KASSIM AL-KHATIB 1
Appeal2017-010157
Application 12/522,847
Technology Center 1600
Before RICHARD M. LEBOVITZ, JEFFREY N. FREDMAN, and
JOHN N. SCHNEIDER, Administrative Patent Judges.
LEBOVITZ, Administrative Patent Judge.
DECISION ON APPEAL
This appeal involves claims directed to methods of controlling weeds
in the vicinity of a cultivated sorghum hybrid with acetyl-CoA carboxylase
herbicides, where the hybrid is resistant to the herbicide. The Examiner
rejected the claims as obvious under 35 U.S.C. § 103. Appellants appeal the
rejection pursuant to 35 U.S.C. § 134. We have jurisdiction under 35 U.S.C.
§ 6(b).
The rejection is AFFIRMED.
1 Appellants identify Kansas State University Research Foundation as the
real party in interest. Appeal Brief, filed Jan. 30, 2017 ("Appeal Br.") 3.
Appeal2017-010157
Application 12/522,847
STATEMENT OF THE CASE
The claims stand finally rejected by the Examiner as unpatentable.
The Examiner rejected claim 10, 11, 34, and 36-38 under pre-AIA 35
U.S.C. § 103(a) as obvious in view of Hawkes et al., GB 2 326 163 A;
published Dec. 16, 1998 ("Hawkes"), Delye, Weed resistance to acetyl
coenzyme A carboxylase inhibitors: an update, BioOne Research, Weed
Science Society of America 53(5), 728-746, (2005) ("Delye-1 "); Delye et
al., 'Universal' primers for PCR-sequencing of grass chloroplastic acetyl-
CoA carboxylase domains involved in resistance to herbicides, European
Weed Research Society, Weed Research 45, 323-330, (2005) ("Delye-2");
Zhu et al., Engineering herbicide-resistant maize using chimeric RNA/DNA
oligonucleotides, Nature Biotechnology, 18, 555-558, (2000) ("Zhu"); and
Gengenbach et al., US 6,069,298; issued May 30, 2000 ("Gengenbach").
Ans. 2.
Claim 10 below is representative of the appealed claims and reads as
follows:
10. A method of controlling weeds in the vicinity of a
cultivated sorghum hybrid comprising:
a) providing a cultivated sorghum hybrid, wherein
germplasm of said cultivated sorghum hybrid comprises a
polynucleotide comprising the nucleotide sequence of SEQ ID
NO: 12, wherein the expression of said polynucleotide encodes
a sorghum acetyl-CoA carboxylase enzyme that confers to said
cultivated sorghum hybrid increased resistance to inhibition by
one or more acetyl-CoA carboxylase herbicides compared to a
cultivated sorghum hybrid not expressing said polynucleotide;
b) applying one or more acetyl-CoA carboxylase
herbicides to a field comprising the cultivated sorghum hybrid
of step a); and
c) controlling weeds in the vicinity of said cultivated
sorghum hybrid such that weed growth is adversely affected by
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the application of said one or more herbicides and growth of
said cultivated sorghum hybrid is not adversely affected.
REJECTION
Claim 10 is directed to a method of controlling weeds in the vicinity
of a cultivated sorghum hybrid using an acetyl-CoA carboxylase ("ACC" or
"ACCase") herbicide. As explained in the Specification, weed grass species
are susceptible to ACC herbicides which target the ACC enzyme. Spec. 1-
2. However, the Specification discloses that sorghum is also "susceptible to
many ACC inhibiting herbicides that target monocot [ weed] species, making
the use of these herbicides to control grassy weeds almost impossible." Id.
at 2:2--4. The Specification discloses that sorghum can be made resistant to
ACC herbicides by introducing into its germplasm a gene encoding a
mutated ACC which is resistant to ACC herbicides. Id. at 2:26-4:3.
Claim 10 relates to sorghum hybrids comprising a specific ACC
mutation that confers resistance to ACC herbicides. This mutation is
encoded by a polynucleotide comprising a sequence of SEQ ID NO: 12,
where the sequence "encodes a sorghum acetyl-CoA carboxylase enzyme
that confers to said cultivated sorghum hybrid increased resistance to
inhibition by one or more acetyl-CoA carboxylase herbicides compared to a
cultivated sorghum hybrid not expressing said polynucleotide." App. Br. 31,
Claims App. SEQ ID NO: 12, is a sequence coding for the ACC mutation
Trp2027Cys. Appeal Br. 16.
The Examiner found that Hawkes describes a method of making a
plant having resistance to an herbicide which inhibits acetyl CoA
carboxylase. Final Act. 3. The Examiner found that Hawkes discloses that
the plant can be sorghum as required by all the rejected claims. Id. The
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Examiner also found that Hawkes teaches selectively controlling weeds in a
field by applying an herbicide to which the plants have been made resistant.
Id.
The Examiner found that Hawkes does not disclose a sorghum hybrid
comprising the Trp2027Cys mutation in the ACC gene, the specific ACCase
mutation which is claimed. Final Act 3. However, the Examiner found that
Delye-1 describes the Trp2027Cys mutation in the blackgrass weed. Id. at 4.
The Examiner found that Delye-1 teaches that ACCases have a high degree
of sequence conservation in the domains involved in herbicide resistance.
Id. The Examiner also found that Delye-2 teaches primers to sequence the
ACCase catalytic domain. Id. The Examiner cited Zhu for its teaching that
Hawkes' method can be used to make herbicide resistant maize. Id. at 3.
The Examiner concluded that it would have been obvious to one of
ordinary skill in the art to have used the primers of Delye-2 to have cloned
the sorghum ACCase given the conserved nature of the enzyme and then to
have introduced the Tryp2027Cys mutation into a sorghum plant to make it
resistant to ACC herbicides as required by all the claims. Final Act. 7. The
Examiner further concluded that it would have been obvious to use the
mutant gene to make a sorghum hybrid resistant to ACCase herbicides for
the purposes of controlling weeds. Id. The Examiner found that Zhu's
teaching of a genetically engineering technique provided a reasonable
expectation that Hawkes' method could be applied successfully to sorghum.
Id.
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Discussion
Hawkes
Appellants contend that Hawkes merely listed sorghum in "a laundry
list of 3 8 different plants species for which the transformation methods
disclosed therein could be useful" and that none of the examples use
sorghum or ACCase. Appeal Br. 19--20. Appellants also state that Zhu
teaches introducing a mutant ALS enzyme into maize, "but provided no
information regarding ACCase-resistant sorghum." Id. at 20. For this
reason, Appellants contend that "there is nothing" in either Hawkes or Zhu
"that even teaches or suggests a sorghum ACCase enzyme with the
Trp2027Cys amino acid substitution." Id.
We disagree. Hawkes, as found by the Examiner, has explicit
teachings of making sorghum resistant to an herbicide. Hawkes 3:13-30.
While sorghum appears in a list of plants to which Hawkes teaches that its
invention could be applied (Hawkes 3: 15), the fact that it appears in a list
does not negate the teaching by Hawkes that sorghum was one of the plants
that Hawkes considered to be applicable to its engineering technology. In
addition to disclosing sorghum, Hawkes also discloses a list of targets which
includes acetyl CoA carboxylase herbicides "to which plants resulting from
the method according to the invention are rendered resistant." Id. at 1 :25-
31. Because both sorghum and ACCase are specifically mentioned in
Hawkes, the skilled worker would have recognized that Hawkes had
disclosed a sorghum plant resistant to an ACCase herbicide. In Wm. Wrigley
Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356, 1361---62 (Fed. Cir.
2012), claims to a product comprising WS-23 (a coolant) and menthol (a
flavoring agent) were found to be anticipated by a prior art disclosure in
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which each of the specific ingredients was recited in a longer list of
alternative agents. Thus, the fact that each of sorghum and ACCase appear
in longer lists does not make Hawkes any less a teaching of sorghum plants
with a mutant ACCase.
With the regard to the reason to have selected the specific Trp2027Cys
mutation as the ACCase mutation in Hawkes, the Examiner found that such
mutation rendered blackgrass resistant to ACC herbicides, making it an
obvious choice. Final Act. 3, 7. As held in KSR Int'! Co. v. Teleflex Inc.,
550 U.S. 398, 417 (2007), it is obvious to us a prior art element for its
established function. The Examiner was not required to find an express
suggestion to use the Trp2027Cys mutation in sorghum. "A person of
ordinary skill in the art is also a person of ordinary creativity, not an
automaton." KSR, 550 U.S. at 421. "[I]n many cases a person of ordinary
skill will be able to fit the teachings of multiple patents together like pieces
of a puzzle." Id. at 420. An obviousness "analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ." Id. at 418. Thus, the disclosure in
Hawkes of a sorghum plant resistant to an ACCase herbicide would have
reasonably suggested that the use of resistance mutations, including the
Trp2027Cys mutation described by Delye-1 would be useful in sorghum for
conferring ACCase herbicide resistance.
Was there a reasonable expectation of success?
To establish obviousness, there must be a reasonable expectation of
success. In re Merck & Co., Inc., 800 F.2d 1091 (Fed. Cir. 1986).
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Appellants contend that the Examiner's rejection is deficient because there
was no reasonable expectation of success that sorghum could be made
resistant to an ACC herbicide by the Trp2027Cys mutation.
A. Sorghum Trp2021Cys Mutation
Appellants contend:
one having ordinary skill in the art would not reasonably expect
that the ACCase Trp2027Cys amino acid substitution would
confer herbicide resistance to sorghum for at least because there
existed in the art perceived fundamental differences between
sorghum and blackgrass pertaining to mechanisms of
metabolism-based herbicide resistance and because, to the best
of Appellants' knowledge, there was a complete absence of
prior art reports of any ACCase mutations contributing to
sorghum ACCase-herbicide resistance at the time of
Appellants' priority date.
Appeal Br. 20-21.
Appellants did not establish that the absence of naturally occurring
ACCase mutations in sorghum ( assuming this to be true) would indicate that
an engineered mutation in ACCase would not confer resistance to an
ACCase herbicide.
The Examiner provided evidence that ACCases share a high degree of
sequence conservation. Final Act 4--5 ( citing Delye-1, 729). In addition to
the disclosure in Delye-1, Gengenbach also identified regions of ACCase
which they characterized as "highly conserved among all MF ACCases."
Gengenbach, col. 33, 11. 61---62. Consistently, Kershner,2 cited by
2 Kellen Kershner, Herbicide Resistance in Grain Sorghum, Ph.D.
dissertation, Kansas St. U (2010).
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Application 12/522,847
Appellants, also provide evidence of sequence conservation among
ACCases:
there is considerable sequence conservation within this vital
metabolic enzyme; both at a broad enzyme level across all
biotin containing enzymes (Samols et al., 1988) and at all
ACCase active sites. The most extensive study on the CT
active site was done by Delye et al. (2004) where 18 Alepecurus
myosuroides populations contributing a total of 86 individuals
were sequenced. Nonsynonymous substitutions [a nucleotide
substitution that modifies the amino acid] were very few
compared to synonymous substitution [ a nucleotide substitution
that does not modify the amino acid] indicating the purifying
selection placed on this enzyme. The conserved sequence
allows comparison of resistance inducing mutations across
multiple species.
Kershner 8.
Delye-1 summarized amino acid substitutions at five different
locations in ACCase associated with altered sensitivity to ACCase
herbicides. Delye-1, 735 ( col. 1 ), 737 (Table 4). Delye-1 teaches that
Trp2027Cys was observed in blackgrass, while the Ilel 781 mutation was
observed in blackgrass, wild oat, and green foxtail. Id. at 737 (Table 4).
Appellants acknowledge that the Trp2027Cys mutation is also found in wild
oats. Appeal Br. 17, 25. Delye-1 stated that: "[a]ll five variable amino acid
residues associated with resistance to ACC-inhibiting herbicides are located
within the active site cavity of the ACC CT domain." Delye-1, 735 (col. 2).
In view of the conserved sequence of ACCase, including at the CT
domain, and that all mutations that conferred resistance to ACC herbicides
were clustered around the active site of the CT domain, the Examiner had
reasonable basis to find that introducing the Trp2027Cys into sorghum would
confer herbicide resistance. Because the enzyme sequence is conserved
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Application 12/522,847
among species, it would be reasonably expected that introducing the same
mutation into the conserved active site of the sorghum gene would disrupt
the engineered sorghum's sensitivity to the ACCase herbicide as it did in
blackgrass.
Appellants did not establish that the lack of a naturally-occurring
mutation at amino acid 2027 indicates anything more than that a random
mutation at this position had not yet been reported as having occurred in
nature. Nonetheless, the claims do not require random mutations, but rather
read on a genetically engineered mutation introduced into the germplasm of
a sorghum hybrid.
Appellants cited Kershner' s statement in a thesis published after the
filing date in which he wrote:
It is surprising that Ile- I 7 81-Leu has not been reported in
sorghum since it is the most common source of target site
resistance. It could be that the Ile-1781-Leu mutation is not
viable in sorghum considering there are no reports of sorghum
with high levels of resistance to CHD herbicides.
Kershner 40-41.
In other words, Kershner' s argument is that the failure to observe the
most common naturally occurring mutation in the ACC gene at amino acid
1781 in sorghum might be because the mutation is lethal to sorghum.
Appellants acknowledge that Kershner was published after the application's
filing date, but argue that it is "precisely what a skilled artisan would be
thinking at the time of invention." Appeal Br. 26.
However, even if true, the Trp2027Cys mutation is in a different region
of the active site from where the 1781 mutation is located and exhibits
different herbicide sensitivity. Kershner 11. Kershner, citing previously
published reports, stated that the 1781 mutation confers "resistance to many
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APP and CHD herbicides," while the Trp-2027-Cys mutation "is commonly
reported to offer only APP resistance." Id.; see also Delye-1, (Table 4)
(showing a different pattern of herbicide sensitivity between the Ilel 781 and
Trp2027 mutations.). Thus, differences between the Ilel 781Leu and
Trp2027Cys mutations were known at the time of invention to one of ordinary
skill in the art. Therefore, even if the Ile 1781 Leu had been lethal to
sorghum, Appellants did not explain why Trp2027 mutation would be lethal as
well, given its location in a different part of the active site of ACCase and its
different pattern of herbicide sensitivity. Nonetheless, Kershner also states,
after reviewing the scientific literature regarding the fitness costs to plants,
that "[t]ogether, these indicate that Ile-1781-Leu, Trp-2027-Cys, and Ile-
2041-Asp/Val mutations would be acceptable for use in crop production."
Kershner 32-33. Thus, Kershner, who Appellants admit captured the
thinking of one of ordinary skill in the art at the time of the invention,
considered the Trp2027Cys mutation suitable for crops.
Appellants contend that "[ u ]ntil Appellants' disclosure, the prior art
had failed to identify any ACCase target-site mutations for conferring
herbicide resistance in sorghum." Reply Br. 7. While it may be correct that
sequence information for a specific mutation in the ACCase enzyme had not
been identified in sorghum, Kershner expressly discloses that target site
resistance in ACCases had been reported in sorghum prior to the filing date
of the application. Kershner 33.
B. Metabolism based resistance
Appellants contend that "metabolism has been definitively shown to
contribute to ACCase-herbicide resistance in blackgrass." Appeal Br. 22.
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Appellants state that the Maneechote publication (at page 112) "disclosed
ACCase-herbicide resistant Avena sterilis [ wild oat] and Lolium rigidum
[ annual rye grass] biotypes exhibiting increased metabolism based
contribution to ACCase target-site resistance."3 Id. In contrast, Appellants
state that to the best of their knowledge, "there are no reports establishing
metabolism-based mechanisms for ACCase-herbicide resistance in sorghum
or that metabolic mechanisms even contribute (e.g., additively or
synergistically) to ACCase mutation-based resistance in sorghum." Id.
Appellant also cited post-filing publications that metabolism based
resistance is absent from sorghum. Id. at 22-23. Thus, Appellants conclude
that they "believe that the deficiency of ACCase-herbicide resistance
mechanism in sorghum constitutes a fundamental difference in ACCase-
herbicide resistance in sorghum as compared to blackgrass." Id. at 23. For
this reason, Appellants contend that that the Examiner's reliance on the
existence of the Trp20237 mutation in blackgrass as a model for sorghum is
flawed.
In addition to this, Appellants argue that "it is known in the art that
most plants with ACCase mutation-based herbicide resistance also have at
least some measurable degree of metabolism-based herbicide resistance that
contributes to the ACCase herbicide resistance of the plant." Appeal Br. 22.
These arguments do not persuade us that the Examiner erred in
rejecting the claims as obvious.
As explained in Gengenbach and known to one of ordinary skill in the
art:
3 Pestic. Sci., 49: 105-114, 1997.
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There are three general mechanisms by which plants may be
resistant to, or tolerant of, herbicides. These mechanisms
include [ 1] insensitivity at the site of action of the herbicide
(usually an enzyme), [2] rapid metabolism (conjugation or
degradation) of the herbicide, or [3] poor uptake and
translocation of the herbicide.
Gengenbach, col. 2, 1. 62-66 (bracketed numbering added).
Mechanism 1 involves mutations to the enzyme, such as the
Try 2027Cys mutation in ACCase. It is also called target site resistance (TSR)
where the target is the enzyme which is directly inhibited by herbicide.
Kershner 10. Mechanism 2 is the metabolism resistance referred to by
Appellants. It is also called non target site resistance (NTSR). Id. In the
latter case, the herbicide resistance is due to how the plant metabolizes the
herbicide and does not involve the enzyme which is directly targeted by the
herbicide. Appellants did not establish that the two mechanisms are linked
or otherwise causally connected; rather they appear to be independent
mechanisms by which a plant can become resistant to an herbicide.
Delye-1 discloses that "[i]t appears that in most cases in which the
cause of resistance has been identified, resistance to A CC-inhibiting
herbicides is the result of a mutant plastidic ACC." Delye-1, 739. However,
Delye-1 also teaches that resistant plants "could be resistant to a given
herbicide by different mechanisms" namely, by mutation to the ACC gene
and by metabolism resistance in one plant. Id. at 740. Consistently, in
Kershner' s review of the literature, it was stated that "TSR is the most
commonly reported type of resistance to APP and CHD herbicides in
literature, even if it is not the most common method of resistance."
Kershner 10. Kershner also stated, based on a literature review, "[o]ften
TSR [ enzyme-based] has much higher resistance factors than NTSR
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[metabolism-based], on the order of a factor often," leading him to consider
it more important. Id. at 12. Thus, mechanism 1, where the enzyme is
directly inhibited by herbicide, is the most prevalent cause of ACCase
herbicide resistance.
Appellants have not provide adequate evidence that the absence of
metabolism-resistant in sorghum (mechanism 1) would have reasonably
suggested to one of ordinary skill in that that the Trp2027Cys mutation
(mechanism 2) would not confer resistance to an ACC herbicide. While a
plant could become resistant to an herbicide by multiple mechanisms, Delye-
1 stated that in most cases it was a result of a mutated ACC, and Kershner
considered enzyme mutations to be the most commonly reported type of
resistance to the APP and CHD ACC herbicides. Kershner 10. In addition
to this, Gengenbach suggests conferring ACC herbicide resistance to a maize
plant by introducing a mutant into its germ plasm. Gengenbach, Abstract.
Furthermore, Abit, 4 also cited by Appellants, provides further evidence that
a mutation alone to the ACC enzyme is sufficient to confer herbicide
resistance. Appeal Br. 22-23. Appellants have not explained why the lack
of resistance to an herbicide via metabolic mechanisms would have led one
of ordinary skill in the art to believe that a sorghum plant could not be made
resistant to ACC herbicides, as claimed, by an independent mechanism in
which the ACC enzyme alone is targeted by the genetic engineering
technology described in Hawkes.
4 Mary Joy M. Abit, Grain Sorghum Response to Postemergence
Applications of Mesotrione and Quizalofop, 2010, Ph.D. dissertation,
Kansas St. U.
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Appellants further cite Maneechote5 as teaching that "ACCase-
herbicide resistant Avena sterilis and Lolium rigidum biotypes exhibiting
increased metabolism based contribution to ACCase target-site resistance."
Appeal Br. 22
However, the Examiner points out that Maneechote also teaches:
The resistance mechanism most frequently reported in weed
biotypes resistant to ACCase-inhibiting herbicides is a resistant
target site, ACCase. Non-target-site resistance mechanisms,
such as enhanced metabolism of herbicide, have so far been
rare.
Maneechote 113.
Thus, Maneechote' s teaching are consistent with Delye-1 and
Kershner.
Nonetheless, as pointed out by Appellants (Reply Br. 11-12),
Maneechote also teaches:
Where resistant weeds have at least two mechanisms of
resistance, target-site-based resistance will most often be the
most significant mechanism. The resistant NAS 4 biotype not
only has an insensitive target ACCase, albeit not sufficient to
confer the high level of resistance to diclofop-methyl [ACC
herbicide] observed at the whole-plant level, but it also has an
increased capacity to metabolise diclofop-methyl.
Maneechote 113.
Based on this teaching, Appellants argue:
Appellants, however, were referring to the fact that most plants
metabolize ACCase herbicides even in the presence of ACCase
mutations and thus contribute to the resistance. Thus, such
5 Maneechote et al., A Diclofop-methyl-Resistant Avena sterilis Biotype with
a Herbicide-Resistant Acetyl-coenzyme A Carboxylase and Enhanced
Metabolism of Diclofop-methyl, Department of Crop Protection and Co-
operative Research Centre, Pesticide Sci., 49,105-114 (1997).
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plants would have at least some measurable degree of
metabolism-based herbicide resistance. A plant without the
contribution of metabolism may not exhibit ACCase-herbicide
resistance even in the presence of an ACCase mutation
depending on the level of resistance conferred by the particular
ACCase mutation.
Reply Br. 12.
Appellants have not pointed to evidence that metabolism based
resistance is necessary to achieve resistance to ACCase. Indeed,
Maneechote's statement that non-target resistance mechanisms are "rare" is
consistent with the belief by one of ordinary skill in the art at the time of the
invention that metabolic mechanism were not necessary to confer herbicide
resistant. Maneechote explains:
In diclofop-resistant [an ACC herbicide] weed biotypes
possessing a resistant ACCase, there is often a good correlation
between resistance in vivo and in vitro.
Maneechote 112.
However, the plant described in their own experiments did not show a
good correlation between enzyme resistance and resistance to the herbicide
at the whole plant level, leading them to look for other mechanisms
responsible for the ACC resistance, namely metabolic based resistance. Id.
Thus, we fail to see how the existence of plant biotypes with herbicide
resistance conferred by two mechanisms would negate the reasonable
expectation of success that a mutation at position 2027 in the ACCase would
impart herbicide resistance as reported in Delye-1. "'Obviousness does not
require absolute predictability of success ... all that is required is a
reasonable expectation of success.' [In re O'Farrell, 853 F.2d 894, 903---04
(Fed. Cir. 1988)]." In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009).
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Thus, while sorghum might differ fundamentally from blackgrass in
its metabolism of herbicides, Appellants have not provided an adequate
explanation, or scientific basis, as to why such difference would have meant
that altering the ACC gene would not confer herbicidal resistance to the
plant when the prevailing view in the art as the time of the invention, as
established by Delye-1, Kershner, and Gengenbach, was that the gene
mutation alone, at least in some plants, was sufficient to confer ACC
herbicide resistance. An argument made by counsel in a brief does not
substitute for evidence lacking in the record. Estee Lauder, Inc. v. L 'Orea!,
S.A., 129 F.3d 588, 595 (Fed. Cir. 1997).
Summary
For the foregoing reasons, the obviousness rejection of claim 10 is
affirmed. Claims 11, 34, and 36-38 fall with claim 10 because separate
reason for their patentability were not provided. 3 7 C.F .R. § 41.3 7 ( c )( 1 )(iv).
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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