REMARKS
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`A.
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`Status of the Claims
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`Claims 1-20 were pendingat the time of this Action. Claim 18 is canceled herein, and the
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`remaining claims are presented for reconsideration.
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`B.
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`Specification Objection
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`The Action objects to the specification for informalities.
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`In response, Applicant notes
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`that the Specification will be amended upon allowanceto recite the deposit information.
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`Regarding the use of non-metric units of measure (lb or pound) in Table 1, Applicant
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`notes that Table 1 is amended herein in the interest of compact prosecution. The objections are
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`thus believed to be moot and withdrawalthereofis respectfully requested.
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`Cc.
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`Rejection of Claims Under 35 U.S.C. §112(a) - Enablement
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`The Action rejects claims 1-20, as failing to comply with the enablement requirement. In
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`response, Applicant hereby affirms that a deposit of at least 625 seeds of the claimed cultivar
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`will be made with a Budapest Treaty approved depository in accordance with Budapest Treaty
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`requirements and 37 C.F.R. $1.801-1.809 and that all restrictions upon availability to the public
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`will be irrevocably removed upon granting of the patent. The Specification and claims will be
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`amendedto recite that deposit information upon allowance. The rejection is thus believed to be
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`mootand withdrawal thereof is respectfully requested.
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`D.
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`Rejection of Claims Under 35 U.S.C. §112(a) - Written Description
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`The Action rejects claim 18. In response, Applicant respectfully traverses, but notes that
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`claim 18 is canceled herein in the interest of compact prosecution. The rejection is thus believed
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`to be moot and withdrawal thereof is respectfully requested.
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`

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`E.
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`Rejection of Claims Under 35 U.S.C. §112(b)
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`The Action rejects claims 1-20 as indefinite for failing to recite the deposit information of
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`the claimed cultivar. In response, Applicant notes that seed of the claimed cultivar will be
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`deposited with a Budapest Treaty approved depository in accordance with Budapest Treaty
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`requirements and 37 C.F.R. §1.801-1.809. The Specification as well as the claims will be
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`amendedto recite the appropriate deposit information.
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`In view of the foregoing, the rejections are thus believed to be moot and withdrawal
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`thereof is respectfully requested.
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`F.
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`Rejection of Claims Under 35 U.S.C. §103(a)
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`The Action rejects claims 1-20 over Eby (US 9,210,899), which teaches soybean variety
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`37273791 in view of Lussenden (US 9,844,201), which teaches event MON87708; and
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`Beuckleer (US 8,017,756), which teaches event A5547-127. The Action asserts that it would
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`have been obvious to modify soybean variety 37273791 via backcrossing to introduce events
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`MON87708 and A5547-127 in order to obtain the instantly claimed variety.
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`In response,
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`Applicant respectfully traverses.
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`Applicant notes that submitted herewith is the Declaration of Dr. Farhad Ghavami Under
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`37 C.F.R. § 1.132. Dr. Ghavami provides a comparative analysis of the claimed and referenced
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`cultivars that demonstrates that the genotypes of the claimed and referenced cultivars differ
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`significantly and that
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`the genotypic differences observed between these cultivars were not
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`predictable or expected to one of ordinary skill in the art. The comparative analysis was conducted
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`using an array-based SNP screening method to measure genome-wide genetic variation at 6,000
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`unique SNP markerloci. In this regard, Dr. Ghavamiexplainsthat:
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`As shown in Exhibit A, the genetic testing analysis identified that
`Soybean Cultivar 94112440 and Soybean Cultivar 37273791 differ
`at 338 of the 5,706 SNPstested, with Table 1 highlighting the
`allele identified at each locus for each cultivar and the calculated
`Similarity based on the genotypic data. Based on my experience,
`these findings establish that these cultivars are genetically distinct,
`and one of ordinary skill could not have possibly expected to
`generate the genotype of the Soybean Cultivar 94112440 based on
`knowledge of the genotype of the Soybean Cultivar 37273791,
`especially by merely introgressing a transgenic event(s).
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`Dr. Ghavamialso further states that:
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`

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`Therefore, based on my experience in plant genetics, the genetic
`differences between Soybean Cultivar 94112440 and 37273791,
`the complex nature of inheritance, e.g., chromosomal segregation
`during meiotic recombination, and the intrinsic unpredictability of
`soybean breeding in general, it is my opinion that the disclosure of
`Soybean Cultivar 37273791 in U.S. Patent No 9,210,899 in no way
`teaches or suggests a soybean plant with the genotype of Soybean
`Cultivar 94112440 to one of ordinary skill
`in the art of plant
`breeding.
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`The claimed cultivar is therefore in no way an obvious variant of the referenced cultivar.
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`The rejection is thus believed to be moot and withdrawalthereofis respectfully requested.
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`G.
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`Non-statutory Double Patenting
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`The Action rejects claims 13 and 18 over the US 17/410,679, which teaches soybean
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`cultivar 03230124; and US 17/410,667, which teaches soybean cultivar 04130514 The Action
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`asserts that the claimed and referenced soybean cultivars are indistinguishable.
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`In response,
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`Applicant respectfully traverse.
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`Under MPEP § 804(1)B(1)(b), if a provisional nonstatutory double patenting rejection is
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`the only rejection remaining in an application and that application has the earliest effective U.S.
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`filing date compared to the reference application, the examiner should withdraw the rejection in
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`the application having the earliest effective U.S. filing date and permit that application to issue.
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`Applicant notes that the instant application has an effective filing date of September 11, 2020,
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`while the referenced applications have effective filing dates of August 24, 2021. As MPEP §
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`804(1)B(1)(b) is applicable with respect to U.S. Application Nos. 17/410,679 and 17/410,667 in
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`the present case, withdrawalof the rejection over these applications is respectfully requested.
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`The Action also rejects claims 1-20 over Eby (US 9,210,899), which teaches soybean
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`variety 37273791 in view of Lussenden (US 9,844,201), which teaches event MON87708; and
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`Beuckleer (US 8,017,756), which teaches event A5547-127. The Action asserts that it would
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`have been obvious to modify soybean variety 37273791 via backcrossing to introduce events
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`MON87708 and A5547-127 in order to obtain the instantly claimed variety.
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`In response,
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`Applicant respectfully traverses
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`Applicant notes that submitted herewith is the Declaration of Dr. Farhad Ghavami Under
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`37 C.F.R. § 1.132. Dr. Ghavami provides a comparative analysis of the claimed and referenced
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`cultivars that demonstrates that the genotypes of the claimed and referenced cultivars differ
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`

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`significantly and that
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`the genotypic differences observed between these cultivars were not
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`predictable or expected to one of ordinary skill in the art, as discussed supra. Dr. Ghavami
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`concludesin this regard that:
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`[B]ased on my experiencein plant genetics, the genetic differences
`between Soybean Cultivar 94112440 and 37273791, the complex
`nature of
`inheritance, e.g., chromosomal
`segregation during
`meiotic recombination,
`and the intrinsic unpredictability of
`soybean breeding in general, it is my opinion that the disclosure of
`Soybean Cultivar 37273791 in U.S. Patent No 9,210,899 in no way
`teaches or suggests a soybean plant with the genotype of Soybean
`Cultivar 94112440 to one of ordinary skill
`in the art of plant
`breeding.
`
`The claimed cultivar is therefore in no way an obvious variant of the referenced cultivar.
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`The rejection is thus believed to be moot and withdrawalthereofis respectfully requested.
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`In view of the foregoing, the rejection is thus believed to be moot and withdrawalthereof
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`is respectfully requested.
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`

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`H.
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`Conclusion
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`This is submitted to be a complete response to the referenced Non-final Office Action. In
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`conclusion, Applicant submits that, in light of the foregoing remarks, the present case is in
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`condition for allowance and such favorable action is respectfully requested.
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`The Examineris invited to contact the undersigned at (214) 259-0990 with any questions,
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`commentsor suggestionsrelating to the referenced patent application.
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`Respectfully submitted,
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`/Christopher L. Schardon/
`
`Christopher L. Schardon
`Reg. No. 77,561
`Agent for Applicant
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`Dentons US LLP
`2000 McKinney Avenue, Suite 1900
`Dallas, Texas 75201
`(214) 259-0931
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`Date: March 25, 2022
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