DETAILED ACTION
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 25 March 2026 has been entered.
Claims 1-2, 6-9, 12-14, 16, and 22-25 are pending.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The warning that should claims 1 and 2 be found allowable, claims 10 and 11 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof is withdrawn in light of Applicant’s amendment to the claims.
The rejection of claims 1-2, 6-16, and 22-25 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement is withdrawn in light of Applicant’s deposit statement and the Schardon Declaration filed 25 March 2026 stating that the NCMA can provide more than one 25-seed packet upon request for a Budapest Treaty deposit.
The rejection of claims 1-2, 6-9, 12-14, 16, and 22-25 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement is withdrawn as alfalfa variety H0415A3138 a collection of traits and genes and not a plant of fixed genetics.
Claim Rejections - 35 USC § 112
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 1-2, 6-9, 12-14, 16, and 22-25 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 the rejections unless they include a limitation that overcomes the deficiencies of the parent claim.
The rejection is modified from the rejection set forth in the Office action mailed 26 September 2025, as applied to claims 1-2, 6-16, and 22-25, to remove portions overcome by Applicant’s amendment to the claims and the Schardon and 2nd Ma Declarations. Applicant’s arguments and the 2nd Ma Declaration, both filed 25 March 2026, have been fully considered but they are not persuasive.
Claim 1 is drawn to a population of seeds of alfalfa variety H0415A3138, wherein representative seed of said alfalfa variety have been deposited under NCMA Accession No. 202111026 and wherein a population of plants produced from the population of seeds has all of the physiological and morphological characteristics of said alfalfa variety H0415A3138.
It is unclear what it means for a population to have “all of the physiological and morphological characteristics of said alfalfa variety H0415A3138”.
H0415A3138 is a synthetic variety encompassing a diverse and very heterogeneous population of alfalfa plants resulting from crosses of 115 separate parent plants (¶15).
The specification describes some of the characteristics of the H0415A3138 population in Tables 1-16 and ¶14-19. ¶19 describes the H0415A3138 population as having high resistance to anthracnose (Race 1), bacterial wilt, fusarium wilt, verticillium wilt, Phytophthora root rot, Aphanomyces root rot (Race 1), and Aphanomyces root rot (Race 2), and has having resistance to stem nematode and pea aphid (¶19). In Tables 8-16, the specification indicates that “high resistance” means >50% of the plants in the population are resistant and that “resistance” means 31-50% of the plants in the population are resistant. Tables 8-16 provide both those general rating for resistance for those traits as well as specific percentages; for example, Table 9 indicates that 57% of the H0415A3138 population is resistant to bacterial wilt. It is not clear if the H0415A3138 population must be merely resistant or highly resistant to these diseases and pests as summarized in ¶19 or if the population must have the exact resistance percentages listed in Tables 8-16.
It is not clear if the H0415A3138 population must have the exact total yield, annual yield, persistence, fall dormancy rating, winter survival rating, multifoliate leaf expression, and glyphosate tolerance rating reported in Tables 1-7 or if it can have the more general rating presented in the Tables. For example, Table 7 indicates both that the glyphosate tolerance rating for the H0415A3138 population is HT, which means >90% of the plants are glyphosate tolerant, and that 92% of the plants are glyphosate tolerant. It is not clear which standard the H0415A3138 population must have to have all the physiological and morphological characteristics of alfalfa variety H0415A3138.
Similarly, it is not clear if the H0415A3138 population must have the exact percentages of flower color listed in ¶16 or if any variation is permitted. It is also unclear what percentage a “trace” of variegated color is and how large the population must be to have those exact percentages. Note that 94% purple, 3% cream, 1% white and 1% yellow adds up to 99%, so the actual percentages must be unspecified fractions greater than described in the specification.
If the H0415A3138 population must have the exact percentages and values listed in ¶16, Tables 1-16 and H0415A3138’s undisclosed phenotypic traits, it is not clear if one had a population of alfalfa seeds or plants with a percentage or value for one of these traits that differed, for example, by 1%, if that population would be encompassed by the claims. If one has a single H0415A3138 seed or plant or a H0415A3138 subpopulation that is too small to have all the physiological and morphological characteristics of alfalfa variety H0415A3138, it is not clear this the plant or subpopulation would be encompassed by the claims.
It is also not clear if “all of the physiological and morphological characteristics of alfalfa variety H0415A3138” only means the characteristics described in Tables 1-16 and ¶14-19 or if includes all the non-described characteristics of alfalfa variety H0415A3138, like detergent fiber concentration, relative feed value, and salt tolerance. It is also unclear what the values these are for H0415A3138.
Tt is unclear how many plants and seeds must be in the population to produce the exact percentages present in H0415A3138, and it is unclear if one had one fewer plant or seed than that if that population would be encompassed by the claim.
Therefore, the metes and bounds of the claims are indefinite.
Response to Arguments
Applicant urges that a "population" of alfalfa variety H0415A3138 has a customary, well-known technical meaning in the art that encompasses genetic structure and allele frequencies (response pg 5).
This is not found persuasive because Applicant has not provided such a definition from the art. The specification does not provide a definition.
The Declaration states and Applicant urges that alfalfa populations are characterized by their classification thresholds such as highly resistant, resistant, or susceptible, which is how alfalfa varieties are described (and marketed) in the art, e.g. by the Alfalfa and Miscellaneous Legumes Variety Review Board and how H0415A3138 is described in the specification (Declaration ¶7; response pg 6).
This is not found persuasive. The specification does not state that only the traits and thresholds described and marketed in the art are how H0415A3138 is described in the specification and does not limit its traits to those described by the Alfalfa and Miscellaneous Legumes Variety Review Board. ¶19 states that
All disease and pest tests of alfalfa variety H0415A3138 were conducted for the National Alfalfa and Miscellaneous Legume Variety Review Board AOSCA certification and were conducted by standard procedures and scoring systems as described in the NAAIC Standard Tests to Characterize Alfalfa Cultivars, which are maintained online on the NAAIC's website.
A statement of how tests were run is not a limitation on the meaning of “all of the physiological and morphological characteristics of said alfalfa variety H0415A3138”.
It also does not clarify if the claimed population must have all of the other physiological and morphological characteristics of said alfalfa variety H0415A3138, like its detergent fiber concentration, relative feed value, salt tolerance and nitrogen fixing potential, and how close a percent match the values for each of these traits must be to what plants grown from the seeds in the deposit have.
It is noted that the plain meaning of “all of the physiological and morphological characteristics of … H0415A3138” is that it has each and every physiological and morphological characteristic of said alfalfa variety H0415A3138, including those not disclosed. The plain meaning would not be that the physiological and morphological characteristics of H0415A3138 only include those listed in the specification or only those listed in the specification but at a range varying from 50 to 100%, or only those traits discussed on a protocol list that is not part of the specification.
The Declaration states and Applicant quotes that interpreting the description to only describe a population with, e.g., exactly 57% of plants exhibiting resistance to Bacterial wilt is improper and unreasonable as NAAIC guidelines could indicate an Adjusted %R of 56% or 58%, rather than the 57% disclosed in the specification or any other percentage within the classification threshold that is classified as highly resistant to Bacterial wilt; a skilled artisan would not question this characteristic because an exact Adjusted %R of 57% was not obtained in a subsequent test (Declaration ¶8; response pg 6).
This is not found persuasive. An exact Adjusted %R of 57% not being obtained in a subsequent test means the characteristic is affected by environmental conditions or that there is allelic variation from generation to generation. The former means that if plants are grown in environmental conditions such that Bacterial wilt resistance is now a 49% adjusted R due to environmental conditions, the population would be merely resistance and not highly resistant to Bacterial wilt. These plants would not be encompassed the claims even if they have the same allelic distribution is in the deposit. One growing a population of alfalfa may infringe in some years and not others, without knowing beforehand which years they would be infringing.
The latter means that the distribution of alleles in H0415A3138 is not fixed. However, Ma, in the Declaration filed 1 August 2025, asserted that an alfalfa population is in Hardy-Weinberg equilibrium (2nd Declaration ¶7), which means that distribution of alleles in H0415A3138 does not change. These two contradictory interpretations of Declarant’s statement that an exact Adjusted %R of 57% was not obtained in a subsequent test mean that the scope of “all of the physiological and morphological characteristics of … H0415A3138” remains unclear.
It is still unclear how much variation from the reported percentages listed in Tables 1-16 is tolerated.
The Declaration states and Applicant urges that the interpretation that a population of plants of alfalfa variety H0415A3138 must have the identical numerical percentages disclosed in the specification is inconsistent with the record and fundamental practices in the art; the percentages reflect the test results obtained for the respective standardized tests, and these percentages establish the classification thresholds that characterize alfalfa variety H0415A3138 (Declaration ¶8; response pg 6).
This is not found persuasive. The interpretation that a population of plants of alfalfa variety H0415A3138 must have the identical numerical percentages disclosed in the specification is not inconsistent with the record as the Tables disclose exact percentages. At no point in the specification does it state that H0415A3138 is only defined by ranges.
The Declaration states and Applicant urges that flower color is a descriptor rather than a defining classification criterion; “94% purple, 3% cream, 1% white, 1% yellow, with a trace of variegated” represents the variety's expected phenotypic distribution based on the underlying allele frequencies, but does not affect the variety's agronomic performance or commercial identity and would not be relied upon for identifying or distinguishing alfalfa variety H0415A3138 like NAAIC testing protocols for the variety's defining agronomic traits are (Declaration ¶9; response pg 6-7).
This is not found persuasive.
In the 1st Ma Declaration, filed 1 March 2025, the same Declarant relied on the flower color percent differences to distinguish H0415A3138 from alfalfa variety RRL44M104 (U.S. 10,798,908) cited as prior art (1st Ma Declaration ¶10), saying .
[T]he gene pool and allelic frequencies of the claimed and referenced alfalfa varieties are distinct. These genetic differences are also exhibited in the distinct phenotypes of the claimed and referenced varieties. … Additionally, the claimed and referenced alfalfa varieties exhibit distinct flower coloration.
It is unclear how a characteristic can distinguish H0415A3138 from the prior art yet not be defining.
Such a contradiction does not clarify which traits describe H0415A3138.
Applicant urges that whether a claim is indefinite requires a determination of whether those skilled in the art would understand in light of the specification, and those skilled in the art would understand the scope of “all of the physiological and morphological characteristics of said alfalfa variety H0415A3138”; it requires the population to be of sufficient size to manifest the characteristics described in the specification (response pg 7).
This is not found persuasive because the characteristics described in the specification are not “all of the physiological and morphological characteristics of … H0415A3138”. They are only a small subset of them. Applicant has not provided evidence that those skilled in the art view only the traits in Tables 1-16 to be “all of the physiological and morphological characteristics of” an alfalfa variety.
The Declaration states that a "population" of H0415A3138 has a technical meaning that encompasses genetic structure and allele frequencies; NAAIC guidelines define population-level testing, and the variety is stable across Syn1-Syn3 generations and the physiological and morphological characteristics of alfalfa variety H0415A3138 can be maintained over several generations (Declaration ¶11).
This is not found persuasive. Applicant has not provided evidence that “all of the physiological and morphological characteristics of said alfalfa variety H0415A3138” are limited to those for which there are NAAIC testing protocols. If these physiological and morphological characteristics of alfalfa variety H0415A3138 can vary from one test to another, as Declarant indicated in ¶8, then they cannot be maintained over several generations.
It is also not clear if one had a subpopulation of H0415A3138 seeds or plants that differ in one of these traits from what is described in the specification or in some other trait of H0415A3138 as deposited, if that subpopulation of H0415A3138 seeds or plants would be encompassed by the claims. It is unclear how many plants and seeds must be in the population to produce the exact percentages present in H0415A3138, and it is unclear if one had one fewer plant or seed than that if that population would be encompassed by the claim.
The Declaration states that only routine effort is needed to obtain a population of first-generation progeny alfalfa seeds produced by inter-pollinating a population of plants of alfalfa variety H0415A3138, as well as a population of alfalfa plants produced by growing said seeds and such plants will predictably comprise all of the physiological and morphological characteristics of alfalfa variety H0415A3138, which are defined in the specification and verifiable using established sampling and statistical methods well known in the art. There is therefore no ambiguity in what constitutes the claimed populations, including a population of first-generation alfalfa seed and/or plants of alfalfa variety H0415A3138 (Declaration ¶11).
This is not found persuasive. This is not an enablement rejection. There is ambiguity in what constitutes the claimed populations for the reasons above.
Claim Rejections - 35 USC § 102/103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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.
Claims 1-2, 6-9, 12-14, 16, and 22-25 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over McCaslin et al (2019, US Patent No. 10,342,208).
Due to Applicant’s amendment of the claims, the rejection is modified from the rejection set forth in the Office action mailed 26 September 2025, as applied to claims 1-2, 6-16, and 22-25. Applicant’s arguments and the Ma Declaration, both filed 25 March 2026, have been fully considered but they are not persuasive.
McCaslin et al teaches alfalfa variety RRL43M114. Both RRL43M114 and the instant population have yields that are sometimes higher and sometimes lower than check variety 54R02, are very winterhardy, have fall dormancy ratings that place them in fall dormancy class 4, have events J-101 and KK179-2, have high resistance to anthracnose (Race 1), bacterial wilt, Fusarium wilt, Verticillium wilt, Phytophthora root rot, and Aphanomyces root rot (Race 1), and have resistance to pea aphid and stem nematode (column 4, lines 27-53; Tables 1-15). McCaslin et al are silent regarding the resistance of RRL43M114 to Aphanomyces root rot (Race 2).
The population of RRL43M114 plants have a slightly different proportions of purple, cream, yellow, variegated and white flowers. However, the proportions of flower colors can change based on which population subset examined.
Thus, RRL43M114 appears to be identical to the instantly claimed H0415A3138 population.
The deposit of seeds (claim 1) would be a population of RRL43M114 seeds.
Bulking RRL43M114 to form breeder seeds (column 4, lines 19-20) is a method comprising crossing a population of RRL43M114 plants with itself and harvesting seed, and the seed produced is first generation progeny seed, where the population of plants grown from the seed have all the morphological and physiological characteristics of RRL43M114, and thus H0415A3138. Planting the population to produce that seed forms a composition of the seed in soil.
McCaslin et al teach vegetatively propagating RRL43M114 by collecting tissues the population of plants, cultivating the tissue to form shoots, rooting the shoots to obtain plantlets, and growing plants from the plantlets (column 25, lines 18-46)
McCaslin et al teach introducing a transgene into RRL43M114 to produce RRL43M114 with the transgene and otherwise all the morphological and physiological characteristics of RRL43M114 (column 16, line 36, to column 17, line 62). The transgene includes those that confer male sterility, herbicide tolerance, insect resistance, pest resistance, disease resistance, improved digestibility, improved energy content, improved forage yield, improved seed yield, improved winterhardiness, improved nitrogen fixation, modified fatty acid metabolism, abiotic stress resistance, flowering time, altered seed amino acid composition, and modified carbohydrate metabolism (column 18, line 18, to column 24, line 56). McCaslin et al also teach crossing the transformed plants to produce progeny plants and applying selection to the progeny population for the transgene (column 15, lines 5-15; column 16, lines 36-38).
McCaslin et al teach intercrossing crossing RRL43M114 with another alfalfa variety (column 10, lines 21-39). McCaslin et al teach producing sprouts, forage, hay, greenchop and silage from the plants (column 3, lines 34-46).
Response to Arguments
The Declaration states and Applicant quotes that alfalfa varieties are synthetic populations whose gene pool and allelic frequencies result from the founder parent plants; the 115 founder parent plants used in the development of the claimed variety are separate and distinct from the 115 founder parent plants used in the development of RRL43M114 (Declaration ¶13; response pg 26).
This is not found persuasive. Declarant has provided no evidence to support the assertion that the two sets of founder parents are separate and distinct, that they are nonobvious over one another, and they result in a different gene pool. It is noted that the Applicant/assignee and one inventor are in common between ‘208 and the instant application, making it likely that such evidence is readily obtainable.
Applicant states that McCaslin does not teach or suggest a population of plants with the same characteristics as the claimed variety (response pg 26).
This is not found persuasive. Like RRL43M114, the instant plant has yields that are sometimes higher and sometimes lower than check variety 54R02, is very winterhardy, belongs to fall dormancy class 4, has events J-101 and KK179-2, has high resistance to anthracnose (Race 1), bacterial wilt, Fusarium wilt, Verticillium wilt, Phytophthora root rot, and Aphanomyces root rot (Race 1), and has resistance to pea aphid and stem nematode (column 4, lines 27-53; Tables 1-15). In response to the indefiniteness rejection, Applicant has argued that this is all that is required for a plant to have all the same morphological and physiological characteristics of the instant plant. As RRL43M114 has all the same morphological and physiological characteristics of the instant plant, it anticipates it or makes it obvious.
The Declaration states and Applicant quotes that once the parent plants are intermated, the gene pool and allelic frequencies and thus the uniqueness of the variety is established; the claimed populations of H0415A3138 refer to the specific gene pool arising from the intermating of the founder parent plants, which are phenotypically and genetically distinct from the founder parent plants used to develop RRL43M114 (Declaration ¶14; response pg 26).
This is not found persuasive. Declarant has provided no evidence to support the assertion that the two gene pools are separate and distinct and that they are nonobvious over one another.
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 1-2, 6-9, 12-14, 16, and 22-25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of U.S. Patent No. 10,342,208. Although the claims at issue are not identical, they are not patentably distinct from each other.
Due to Applicant’s amendment of the claims, the rejection is modified from the rejection set forth in the Office action mailed 26 September 2025, as applied to claims 1-2, 6-16, and 22-25. Applicant’s arguments and the Ma Declaration, both filed 25 March 2026, have been fully considered but they are not persuasive.
‘208 claims alfalfa variety RRL43M114. Both RRL43M114 and the instant population have yields that are sometimes higher and sometimes lower than check variety 54R02, are very winterhardy, have fall dormancy ratings that place them in fall dormancy class 4, have events J-101 and KK179-2, have high resistance to anthracnose (Race 1), bacterial wilt, Fusarium wilt, Verticillium wilt, Phytophthora root rot, and Aphanomyces root rot (Race 1), and have resistance to pea aphid and stem nematode (‘208 column 4, lines 27-53; Tables 1-15). ‘208 is silent regarding the resistance of RRL43M114 to Aphanomyces root rot (Race 2).
The population of RRL43M114 plants has a slightly different proportions of purple, cream, yellow, and white flowers. However, the proportions of flower colors can change based on which population subset examined.
Thus, RRL43M114 appears to be identical to the instantly claimed H0415A3138 population.
The deposit of seeds (claim 1) would be a population of RRL43M114 seeds and plants grown from the seeds would be a population of RRL43M114 plants.
‘208 claims a composition comprising seed of RRL43M114 in soil or a synthetic cultivation medium (claims 6-7). It would be obvious for that composition to comprise a population of seed of RRL43M114. As RRL43M114 is a mixture of plants and seeds, one of ordinary skill in the art would plant that population of seeds in soil to produce more plants.
‘208 claims crossing a plant of RRL43M114 with itself or another alfalfa plant (claims 8-9) and progeny seed and plants produced from a cross of RRL43M114 with itself (claims 10-11). It would be obvious to one of ordinary skill in the art to do that crossing with a population of plants as such crossing is routinely done in fields planted with populations of alfalfa plants.
‘208 claims vegetatively propagating a RRL43M114 plant by collecting tissues the plant, cultivating the tissue to form shoots, rooting the shoots to obtain plantlets, and growing a plant from the plantlets (claims 12-13). It would be obvious to one of ordinary skill in the art to do that with a population of RRL43M114 plants to maintain the entire genetic variation within RRL43M114.
‘208 claims introducing a transgene into a RRL43M114 plant, including where the transgene confers male sterility, herbicide tolerance, insect resistance, pest resistance, disease resistance, improved digestibility, improved energy content, improved forage yield, improved seed yield, improved winterhardiness, improved nitrogen fixation, modified fatty acid metabolism, abiotic stress resistance, flowering time, altered seed amino acid composition, or modified carbohydrate metabolism (claims 14-17). It would be obvious to one of ordinary skill in the art to do that with a population of RRL43M114 plants so that the entire genetic variation within RRL43M114 has the transgene.
‘208 claims crossing transformed RRL43M114 plant with a population of alfalfa plants to produce a population of progeny plants where at least one progeny plant has the transgene and selecting progeny plants with the transgene (claims 22-23). It would be obvious to one of ordinary skill in the art to do that with a population of transformed RRL43M114 plants so that more of the progeny plants have the transgene.
‘208 claims combining a RRL43M114 seed with seed of a second alfalfa variety. It would be obvious to one of ordinary skill in the art to do that with a population RRL43M114 seeds so that an entire filed could be planted.
‘208 claims producing sprouts, forage, hay, greenchop or silage from a RRL43M114 plant (claims 25-27). It would be obvious to one of ordinary skill in the art to do that with a population RRL43M114 plants so that more sprouts, forage, hay, greenchop or silage could be produced.
Response to Arguments
Applicant urges that as discussed above the two varieties are not identical and have founder parents that differ phenotypically and genetically from each other (response pg 27).
This is not found persuasive. As discussed in the Response to Arguments in the 102/103 rejection above and incorporated herein, Applicant has not shown that the two varieties are not identical or nonobvious over one another. Further, Applicant has not provided any evidence that the founder parents or each variety differ phenotypically and genetically from each other and that their crossing results in populations of plants that differ phenotypically and genetically from each other.
Applicant urges that the variety disclosed in ‘208 does not teach or suggest a population with all of the morphological and physiological traits of the claimed variety (response pg 27).
This is not found persuasive. Like RRL43M114, the instant plant has yields that are sometimes higher and sometimes lower than check variety 54R02, is very winterhardy, belongs to fall dormancy class 4, has events J-101 and KK179-2, has high resistance to anthracnose (Race 1), bacterial wilt, Fusarium wilt, Verticillium wilt, Phytophthora root rot, and Aphanomyces root rot (Race 1), and has resistance to pea aphid and stem nematode (column 4, lines 27-53; Tables 1-15). In response to the indefiniteness rejection, Applicant has argued that this is all that is required for a plant to have all the same morphological and physiological characteristics of the instant plant. As RRL43M114 has all the same morphological and physiological characteristics of the instant plant, it anticipates it or makes it obvious.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Anne R. Kubelik, Ph.D., whose telephone number is (571) 272-0801. The examiner can normall be reached Monday through Friday, 9:00 am - 5:00 pm Eastern.
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/Anne Kubelik/Primary Examiner, Art Unit 1663
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