General Mills, Inc.

Patent Trials and Appeals Board

Jul 20, 2020

14886238 - (D) (P.T.A.B. Jul. 20, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/886,238 10/19/2015 Eric Wayne Jackson 7729US01 7999
106306 7590 07/20/2020
DIEDERIKS &WHITELAW, PLC
13885 Hedgewood Dr., Suite 317
Woodbridge, VA 22193-7932
EXAMINER
DEVEAU ROSEN, JASON
ART UNIT PAPER NUMBER
1662
NOTIFICATION DATE DELIVERY MODE
07/20/2020 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):
gmi.mail@dwpatentlaw.com
mail@dwpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte ERIC WAYNE JACKSON
__________

Appeal 2020-000110
Application 14/886,238
Technology Center 1600
__________

Before DONALD E. ADAMS, ERIC B. GRIMES, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal1,2 under 35 U.S.C. § 134(a) involving claims to an
Avena magna (oat) variety. The Examiner rejected the claims as failing to
comply with the written description requirement and as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the Real Party in Interest as General
Mills, Inc. (see Appeal Br. 3).
2 We have considered and refer to the Specification of Oct. 19, 2015
(“Spec.”); Final Action of Oct. 11, 2018 (“Final Act.”); Appeal Brief of May
23, 2019 (“Appeal Br.”); Examiner’s Answer of Aug. 8, 2019 (“Ans.”); and
Reply Brief of Oct. 4, 2019 (“Reply Br.”). An oral hearing was held on July
7, 2020.
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Statement of the Case
Background
“Common cultivated oat (Avena sativa) has long been a healthy food
and ingredient primarily due to favorable levels of grain beta glucan (soluble
fiber), antioxidants, and a beneficial fatty acid profile” (Spec. ¶ 2).
“Unfortunately, these grains have modest levels of grain protein (~10%) and
few contain all the amino acids required in the human diet” (id.). “Avena
magna, a wild relative of cultivated oat, is a promising source of protein.
However, the lack of favorable agronomic characteristics (e.g., cultivation
and harvestability) have limited the use of A. magna as a crop” (id. ¶ 3).
“Prior attempts to domesticate this wild species . . . have failed to produce a
cultivatable oat plant that retains the favorable nutritional qualities of wild A.
magna” (id.).
The Claims
Claims 1, 4–7, 13–16, 33, 41–44, and 47–52 are on appeal.
Independent claim 1 is representative and reads as follows:
1. An Avena magna variety that is:
a. cultivatable using one or more standard farming practices,
including mechanical planting and/or mechanical harvesting, as
exhibited by the following traits:
i. a semi-dwarf height,
ii. a comparable or superior lodging resistance compared
to Avena sativa variety ‘Leggett’ when grown under the same
environment under the same conditions,
iii. a comparable or superior shattering resistance
compared to Avena sativa variety ‘Leggett’ when grown under
the same environment under the same conditions, and
iv. a statistically significant increase in seed protein
content as compared to Avena sativa variety ‘Leggett’ when
grown under the same environment under the same conditions
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wherein the semi-dwarf height, the comparable or
superior lodging resistance compared to Avena sativa variety
‘Leggett’, the comparable or superior shattering resistance
compared to Avena sativa variety ‘Leggett’, and the statistically
significant increase in seed protein content compared to Avena
sativa variety ‘Leggett’ are heritable from one or more of an
Avena magna variety selected from 96.5.6 (American Type
Culture Collection accession PTA-122534), 96.5.34 (American
Type Culture Collection accession PTA-122532), and
100.2.235 (American Type Culture Collection accession PTA-
122533).

The Issues
A. The Examiner rejected claims 1, 4–7, 13–16, 33, 41–44, and 47–52
under 35 U.S.C. § 112(a) as failing to comply with the written description
requirement (Final Act. 2–14; cf. Ans. 3–8).
B. The Examiner rejected claims 1, 4–7, 13–16, 33, 41–44, and 47–52
under 35 U.S.C. § 103 as obvious over Ladizinsky3 and Oliver4 (Final Act.
15–21; cf. Ans. 9–12).

A. 35 U.S.C. § 112(a), written description
We begin our analysis of this rejection with claim interpretation,
because before we can determine whether the claims satisfy the written
description requirement, we must determine the meaning of the phrases: “are
heritable from” in independent claims 1, 13, 14, 16, 43, and 50; “having

3 Ladizinsky, G., Development of protein rich tetraploid oat- current state
and prospects, Hebrew University 1–12 (2014).
4 Oliver et al., New Diversity Arrays Technology (DArT) markers for
tetraploid oat (Avena magna Murphy et Terrell) provide the first complete
oat linkage map and markers linked to domestication genes from hexaploid
A. sativa L., 123 Theor. Appl. Genet. 1159–71 (2011).
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greater than 50% allele sharing similarity” in independent claim 42 (that
Appellant grouped with claim 48); “essentially derived from” in independent
claim 44; and “are inherited from” in independent claim 52. We will then
assess whether these claims, as interpreted, comply with the written
description requirement.
“inherited from,” “descended from,” and “essentially derived from”
Appellant asserts that for the phrases “essentially derived from” and
“inherited from,” “the phenotypic traits are required to be inherited from one
or more of the deposited lines” (Appeal Br. 8). We understand Appellant’s
position to be that the plants recited in claims 44 and 52 must have the same
alleles as those in the deposited lines. Consequently, we understand
Appellant to be asserting that the underlying genetic basis for the traits in
these plants is identical, and the claimed plants share identical nucleic acid
sequences with the nucleic acid sequences controlling the trait in the
deposited lines.
The Examiner finds that the genetic makeup of plants with traits either
“inherited from,” “descended from,” or “essentially derived from” “the
deposited lines will differ from the instantly deposited/described varieties
with each subsequent filial generation” (Final Act. 7).
We agree with Appellant’s view and interpret “inherited from” and
“essentially derived from” as requiring the genus of plants in claims 44 and
52 to those plants that both share all of the functional recitations required by
the claims and share identical nucleic acid sequences with the nucleic acid
sequences in the deposited lines that result in semi-dwarf height and seed
protein content. That is, these claims impose two separate limitations. First,
the plants must be the result of breeding of the deposited lines, with the
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deposited lines in their parentage as in claim 44. Second, the two recited
traits in claim 52 must share the same underlying nucleic acid sequences in
the genes that cause these traits as those found in the deposited lines.
“are heritable from” and “having greater than 50% allele sharing
similarity”
Appellant asserts that the phrases “are heritable from” and “having
greater than 50% allele sharing similarity” “require the claimed phenotypic
traits to be those that are heritable from the deposited lines” (Appeal Br. 8).
Appellant further asserts these plants “have the same genetic basis for the
claimed phenotypes as the deposited lines and cannot be of any conceivable
genotype” (id.).
The Examiner finds “the specification fails to describe the genetic
structure of these A. magna lines that confers the semi-dwarf height, superior
shattering resistance and other traits” (Final Act. 5). The Examiner points
out that
without describing the genes/structures required for heritability,
the skilled artisan would be unable to distinguish between oat
varieties having the claimed traits which are heritable from the
deposited varieties and other oat varieties that have the claimed
traits arising from different genes or combinations of genes not
present in the deposited variety.
(Ans. 19).
In analyzing these opposing views, we note that the Specification does
not define the claim phrases at issue. However, the Specification does state
“mutation induction, or transgene introduction, can be used for introducing
genetic variability . . . Such methods can be used to introduce new traits . . .
or improve existing traits” (Spec. ¶ 41). The Specification further notes that
“varieties may be obtained for example by the selection of a natural or
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induced mutant, or of a somaclonal variant, the selection of a variant
individual from plants of the initial variety, backcrossing, or transformation
by genetic engineering” (id. ¶ 46). The Specification explains that
“[e]xamples of single locus conversions include mutant genes, transgenes
and native traits finely mapped to a single locus. One or more locus
conversion traits may be introduced into a single oat variety” (id.).
Thus, the Specification recognizes that different mutations may result
in either new traits or improvements in existing traits, demonstrating that a
trait may be shared by two plants but the underlying genetic basis may
differ.
That the same phenotypic trait may result from different genetic bases
is supported by Mr. Richter’s5 statement that “variety 100.2.235 (ATCC
designation PTA-122533) exhibits a genotype that confers semi-dwarf
height that is different than the genotypes of variety 96.5.6 (ATCC
designation PTA-122534) and variety 96.5.34 (ATCC designation PTA-
122532)” (Richter Decl. ¶ 9). Mr. Richter further notes that “the high seed
protein content phenotype varies in each of the deposited lines, suggesting
potential genotypical variance conferring that trait between the deposited
lines” (id. ¶ 11).
Therefore, we find that a reasonable interpretation of the phrases “are
heritable from” and “having greater than 50% allele sharing similarity” does
not require the genetic basis of the phenotypic trait to be identical to the
genetic basis in the deposited lines, but rather that the phenotypic trait is one

5 Declaration of Paul Richter, dated July 18, 2018.
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of the traits found in the deposited lines and is a phenotypic trait that may be
inherited from that line or that shares alleles with that line.
Written Description analysis
The written description requirement can be met by disclosing
“complete or partial structure, other physical and/or chemical properties,
functional characteristics when coupled with a known or disclosed
correlation between function and structure, or some combination of such
characteristics.” Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 964
(Fed. Cir. 2002) (emphasis omitted).
The Examiner finds
the claims of the instant invention are considered “reach
through” claims in which Applicant has only described a
starting material and at least one method step, but has not
described the resulting product such that the genus of products
that can be produced by the recited method steps and materials
is so large that one of skill in the art would not readily envision
the members of the claimed genus
(Ans. 8).
Appellant contends that the “biological deposits, description in the
application, and declaratory evidence, especially in light of the Examiner’s
own statement that ‘that the deposited varieties comprise whatever genetic
material is necessary to yield a plant with the claimed phenotypes’
substantively support the sufficiency of Applicant’s written description”
(Appeal Br. 19). Appellant contends the “declaratory evidence of record by
Dr. McMullen and Mr. Richter supports Applicant’s possession of not only
the deposited varieties, but of an entire class of A. magna plants with the
claimed combination of heritable traits” (id. at 18). Appellant also contends
“there is no requirement to disclose an underlying causal genetic element for
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the claimed genus, particularly on a nucleotide-by-nucleotide basis, in order
to comply with the written description requirement” (id. at 21)
We find that Appellant is persuasive with regard to claims 44 and 52
that recite the phrases “essentially derived from,” “descended from,” and
“are inherited from.” As discussed in our claim interpretation above, these
phrases require the claimed plants both share all of the functional recitations
required by the claims and share identical nucleic acid sequences with the
nucleic acid sequences in the deposited lines that result in semi-dwarf height
and seed protein content (claim 52). Thus, the recited functional
characteristics are linked to specific physical properties of the deposited
plants, and indeed necessarily share the identical nucleic acid sequences
responsible for these properties.
We agree with Dr. McMullen6 that given this identity of sequence
required by the “derived from,” “descended from,” or “inherited from”
language, “[a]dditional Avena magna varieties having the claimed traits can
be readily produced by breeding one or more of the deposited Avena magna
varieties to other oat varieties, or to each other, and selecting for the desired
traits” (McMullen Decl. ¶ 27). We agree with Appellant that the three
deposited species represent a reasonable number of species relative to the
scope of a claim to plants that necessarily incorporate genetic material bred
from those three deposited species.
We find that the Examiner is persuasive with regard to claims 1, 13,
14, 16, 42, 43, and 50 that recite the phrases “are heritable from” or “having
greater than 50% allele sharing similarity.” As discussed in our claim

6 Declaration of Michael S. McMullen, dated July 18, 2018.
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interpretation above, these phrases do not require the claimed plants to share
identical sequences with the deposited lines, but rather encompass mutations
or other alterations in the genes for the recited functional properties like
semi-dwarf height or increased protein content that differ from the genes
necessarily present in the deposited lines.7 No such mutations or gene
alterations were disclosed in the Specification.
These claims are not limited to either the deposited plants or plants
whose traits are directly inherited from those deposited plants. The Supreme
Court stated: “To obtain utility patent protection, . . . the plant must meet
the specifications of § 112, which require a written description of the plant
and a deposit of seed that is publicly accessible.” J.E.M. Ag Supply, Inc. v.
Pioneer Hi-Bred Intern., Inc., 534 U.S. 124, 131 (2001). Thus, the claims
with the “are heritable from” or “having greater than 50% allele sharing
similarity” language do not fall into the safe harbor of the deposit
regulations.
Dr. McMullen recognizes that lack of possession of other sequences is
a concern, noting “[i]n my opinion, in the absence of further information
about how semi-dwarf height could be introduced into the lines described in
Ladizinsky AOWC,[8] there would be no reason for the person of ordinary
skill to expect that the trait could be introduced into the lines described by
Ladizinsky” (McMullen Decl. ¶ 20). The same concern applies to the

7 See Oral Hearing Transcript at 8:25 to 9:1 (“[W]e can’t be certain
that any mutations would be identical when you are able to
distinguish between different genes”).
8 Ladizinsky AOWC (Exhibit F attached to the McMullen
Declaration) is the same reference that the Examiner cites in the
§ 103 rejection.
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instant claims at issue, which encompass genetic material not described in
the Specification, not in the possession of the inventors, and for which no
sequence, structure, or even parentage information is provided.
These claims are entirely functional, requiring semi-dwarf height or
elevated protein content, but lacking any description of the components
necessary to obtain those functions. And unlike the previously discussed
claims 44 and 52, that require the same parental nucleic acid for the trait,
albeit undisclosed, claims 1, 13, 14, 16, 42, 43, and 50 are reasonably
interpreted to encompass any type of mutation or alteration in the gene that
results in traits like semi-dwarf height and elevated protein content.
Therefore, the instant “claims merely recite a description of the problem to
be solved while claiming all solutions to it and, as in Eli Lilly and Ariad’s
claims, cover any [plant] later actually invented and determined to fall
within the claim’s functional boundaries—leaving it to the [plant breeding]
industry to complete an unfinished invention.” Ariad Pharm., Inc. v. Eli
Lilly & Co., 598 F.3d 1336, 1353 (Fed. Cir. 2010).
We do agree with Appellant that “there is no requirement to disclose
an underlying causal genetic element for the claimed genus, particularly on a
nucleotide-by-nucleotide basis, in order to comply with the written
description requirement” (Appeal Br. 21). However, if the claims are
written in substantially functional language, as here, where the limitations
“are heritable from” or “having greater than 50% allele sharing similarity”
encompass alleles and sequences not necessarily found in the deposited
lines, a reasonable number of species of such alleles, sequences, or plants
must be provided to demonstrate possession of such an extensive genus. No
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example of a single species that differs from the deposited lines has been
provided.
Conclusion of Law
A preponderance of the evidence of record does not support the
Examiner’s conclusion that claims 44 and 52 fail to comply with the written
description requirement.
A preponderance of the evidence of record does support the
Examiner’s conclusion that claims 1, 4–7, 13–16, 41–43, 47, 49–50, and 51
fail to comply with the written description requirement.

B. 35 U.S.C. § 103 as obvious over Ladizinsky and Oliver
The Examiner finds “Ladizinsky teaches the transfer of the
domestication syndrome (i.e., seed nonshattering and reduced size) of A.
sativa to A. magna” (Final Act. 17). The Examiner finds Ladizinsky teaches
“[e]ach of these traits shows monogenic inheritance (i.e., the trait is
controlled by a single gene) with some of the characteristics being linked to
each other” (id.). The Examiner finds “Ladizinsky teaches that backcross A.
magna plants derived from this cross are morphologically indistinguishable
from A. sativa common oat and that protein content was as high as 23% (p.
7; see also p. 9). Ladizinsky suggests a desire that semi-dwarf stature be
introduced into the A. magna domesticated variety” (id.).
The Examiner asserts that because Ladizinsky’s plants “are
morphologically indistinguishable from A. sativa it . . . necessarily follows
that the A. magna plants as taught by Ladizinsky have comparable shattering
resistance and lodging resistance” (Final Act. 17).
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The Examiner finds Oliver teaches “A. magna is a potentially valuable
resource for protein content that could be commercialized via direct
domestication following the model of tetraploid wheat and because it carries
resistance to crown rust and powdery mildew” (Final Act. 18).
The Examiner finds it obvious to make the claimed oat variety
because Oliver et al teaches the importance of the A. magna: it
is higher in essential amino acids making it a superior crop and
a potentially valuable resource for protein content that could be
commercialized via direct domestication following the model of
tetraploid wheat and because it carries resistance to crown rust
and powdery mildew.
(Final Act. 19).
The issue with respect to this rejection is: Does a preponderance of the
evidence of record support the Examiner’s conclusion that the combination
of Ladizinsky and Oliver renders the claims obvious?
Findings of Fact
1. Ladizinsky teaches a “[n]ew approach to exploit A. magna
protein content” by: “Domestication: transferring the domestication
syndrome of A. sativa to A. magna” (Ladizinsky 3).
2. Ladizinsky teaches that “domestication syndrome” is a “small
number of traits that makes the difference between wild and domesticated
state” (Ladizinsky 3).
3. Ladizinsky teaches that in oats, these traits include “seed non-
shattering at maturity, accompanied by glabrous and yellow lemmas and
reduction of awns number and size and erect growth” (Ladizinsky 3).
4. Ladizinsky teaches for the domestication syndrome traits that
“[e]ach of these traits shows mono-genic inheritance”; “[s]ome of the
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characters are linked to each other”; and “the domestication syndrome can
be transferred” (Ladizinsky 4).
5. Ladizinsky teaches that after hybridizing A. sativa and A.
magna through five cycles, the outcome resulted in “28 plants [that] are
morphologically indistinguishable from the common oat” (Ladizinsky 5–7).
6. Ladizinsky teaches the resultant plants were fertile and
contained 16–23% protein content (Ladizinsky 9).
7. Oliver teaches “increasing protein content has been an
important breeding objective in oat for at least three decades . . . oat is
higher in essential amino acids, making oat a nutritionally superior crop and
an excellent target for increased seed protein content” (Oliver 1160, col. 1).
8. Oliver teaches “wild Moroccan oat species A. magna Murphy et
Terrell . . . is a potentially valuable resource for protein content, with a
measured value of 31% protein in the grain” but “has several undesirable
characteristics that need to be addressed before cultivation, including lack of
domestication and susceptibility to barley yellow dwarf virus” (Oliver 1160,
col. 1).
9. Oliver teaches “Ladizinsky (1995) described the sexual transfer
of the domestication syndrome, including genes for reduced awn size (A),
yellow lemma color (Lc), glabrous lemma (Lp), and non-shattering spikelet
(Ba), from A. sativa to A. magna through two successive backcrosses”
(Oliver 1160, col. 1).
Principles of Law
A prima facie case for obviousness “requires a suggestion of all
limitations in a claim,” CFMT, Inc. v. Yieldup Int’l Corp., 349 F.3d 1333,
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1342 (Fed. Cir. 2003). In addition, while obviousness does not require
absolute predictability of success, O’Farrell identifies
two kinds of error. In some cases, what would have been
“obvious to try” would have been to vary all parameters or
try each of numerous possible choices until one possibly
arrived at a successful result, where the prior art gave either
no indication of which parameters were critical or no
direction as to which of many possible choices is likely to be
successful. . . . In others, what was “obvious to try” was to
explore a new technology or general approach that seemed
to be a promising field of experimentation, where the prior
art gave only general guidance as to the particular form of
the claimed invention or how to achieve it.

In re O’Farrell, 853 F.2d 894, 903 (Fed. Cir. 1988).
Analysis
Appellant contends “[i]t is the Examiner’s duty to demonstrate that
one skilled in the art would have had a reasonable expectation of success
flowing from the purported obviousness combination” (Appeal Br. 29–30).
Appellant contends:
Ladizinsky, arguably the leader in A. magna breeding, failed for
almost 20 years to achieve A. magna plants combining high
protein and other agronomic traits, particularly semi-dwarf
height. Nobody before Applicant, including Ladizinsky, was
able to achieve the balance of increased nutritional value and
functional agronomic properties, because increasing one
variable (e.g., protein content) would in turn lessen another
variable (i.e., render a plant’s agronomic traits unworkable for
large-scale growing). For example, Ladizinsky, summarizing
about 20 years of work, teaches that the protein content he
achieved was in the 16–23% range (page 9), but he did not
consider that sufficient, or indicate it was successfully
combined with semi-dwarf stature.
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(Appeal Br. 30). Appellant’s position is supported by Dr. McMullen, who
states “[i]n my opinion, in the absence of further information about how
semi-dwarf height could be introduced into the lines described in Ladizinsky
AOWC, there would be no reason for the person of ordinary skill to expect
that the trait could be introduced into the lines described by Ladizinsky”
(McMullen Decl. ¶ 20).
The Examiner responds that the “Office need not establish a
reasonable expectation of success for combining the prior art references
because Ladizinsky teaches one of ordinary skill in the art everything they
need to know to arrive at the instantly claimed oat variety while Oliver
provides the motivation for following the teachings of Ladizinsky” (Ans.
31).
We agree with Appellant. While there is no doubt that Ladizinsky
provides motivation to generate a variety of oat plant with both high protein
content and semi-dwarf height, as well as the other traits recited in the
claims (FF 3, 6) and Oliver is also interested in improved oat plants with
these traits (FF 7, 9), neither reference actually provides a reasonable
expectation of success in generating these oat plants. We credit Dr.
McMullen’s statement that there would be no expectation of success in
adding the semi-dwarf height into Ladizinsky’s oat plants with the other
traits (see McMullen Decl. ¶ 20). In addition, we are also persuaded that the
20 year period between Dr. Ladizinsky’s 1995 publication9 and the later
presentation in 2014 relied upon in the rejection (FF 1–6), where there was
no disclosure of an oat plant with all of the features required by the claims,

9 Ladizinsky, Domestication via hybridization of the wild tetraploid oats
Avena magna and A. murphyi, 91 Theor. Appl. Genet. 639–46 (1995).
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supports Appellant’s position that it may have been obvious to explore oat
plant breeding technology, but the art did not provide sufficient guidance as
to how to obtain an oat plant with both increased protein content and semi-
dwarf height.
Conclusion of Law
A preponderance of the evidence of record does not support the
Examiner’s conclusion that the combination of Ladizinsky and Oliver render
the claims obvious.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1, 4–7, 13–16,
33, 41–44, 47–
52
112(a) Written
Description
1, 4–7, 13–
16, 33, 41–
43, 47–49,
50, 51
44, 52
1, 4–7, 13–16,
33, 41–44, 47–
52
103 Ladizinsky,
Oliver
1, 4–7, 13–
16, 33, 41–
44, 47–52
Overall
Outcome
1, 4–7, 13–
16, 33, 41–
43, 47–49,
50, 51
44, 52

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART