DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Claims
No new claim set was filed.
Amended claims
Newly canceled claims
Newly added claims
Previously canceled claims
3-11, 14-16
Previously withdrawn claims
Claims under instant examination
1-2, 12-13, 17-20
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 4/16/26 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 4/16/26 has been considered by the examiner.
New Claim Rejections - 35 USC § 112(b)
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.
Claims 1-2, 12-13 and 17-20 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1-2, 12-13 and 17-20 are unclear as claim 1 recites the limitation "the phytopathogenic microorganism Fusarium oxysporum f.sp (forma specialis) cubense (Foc)" in line 2. There is insufficient antecedent basis for this limitation in the claim (emphasis added). Therefore, it is unclear what this limitation refers to and how to interpret the claim. The Examiner suggests replacing “the” with “a” in order to obviate the instant rejection.
Claims depending from rejected claims have also been rejected because they incorporate all of the limitations of the claims from which they depend, but fail to resolve the indefinite concerns outlined above.
New Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 2 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 2 recites “wherein the phytopathogenic microorganism is Fusarium odoratissimum” and is dependent on claim 1. However, this species is outside of the scope of claim 1. Claim 1 requires the phytopathogenic microorganism to be Fusarium oxysporum f.sp (forma specialis) cubense, which has the following scientific classification: Fusarium genus, F. oxysporum species, and F. o. f.sp. cubense forma specialis, whereas claim 2 requires the phytopathogenic microorganism to be Fusarium odoratissimum, which has the following scientific classification: Fusarium genus and F. odoratissimum species. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GENEVIEVE S ALLEY whose telephone number is (571)270-1111. The examiner can normally be reached on Monday-Friday 8:00-5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Blanchard can be reached on 571-272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GENEVIEVE S ALLEY/Primary Examiner, Art Unit 1617
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