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 .
Examiner’s Note
This is a FINAL Office action intended to VACATE and REPLACE the Non-Final Office action dated 01/30/2026. Any inconvenience to Applicant is regretted.
Claim Status
Claims 1, 3-31 and 33-37 are pending.
Claims 12-18, 20-30 and 36 are withdrawn from further consideration as being part of non-elected inventions.
Claims 1, 3-11, 19, 31, 33-35 and 37 are currently being examined.
All previous objections and rejections not set forth below have been withdrawn in view
of applicant’s amendments to the claims.
The claim amendments (dated 11/24/2025) and/or the Applicant’s answers to the request under 37 CFR 1.105 (dated 12/03/2025) necessitated new prior art references and new grounds of rejections, as discussed below.
Priority
The benefit claim presented on 11/24/2025 is entered because the required petition and the appropriate continuing application fee under 37 CFR 1.17(w) are submitted. The application is granted the benefit under 35 U.S.C. 120, 121, 365(c) or 386(c) based upon a previously filed application. Thus, the effective filing date for this application is deemed to be 02/26/2020, as per European Patent Office (EPO) PCT/EP2020/055065.
Claim Rejections - 35 USC § 112(a)
Response to Applicants’ arguments: Amendments made to the claims filed in Applicant’s response submitted on 11/24/2025 overcame the rejections of record.
Claim Objections
Applicant is advised that should claims 5, 10, 11 and 19 be found allowable, claims 7, 34, 35, and 37 will be objected to under 37 CFR 1.75 as being substantial duplicates thereof, respectively. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim Rejections - 35 USC § 112(d)
Claim 4 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 4 is dependent from claim 3 but does not further restrict claim 3.
The Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
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.
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 10 and 34 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.
Claims 10 and 34 recite, “… or that produces…” (line 1). The limitation is incomplete as it is unclear what is intended to be encompassed by this limitation.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3-10, 19, 31 and 33-34, and 37 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Badea et al. (The effects of pennasoil treatment on morphological elementes, some biochemical aspects and production date for Cucumis sativus green-house culture, 2000, Annals of the University of Craiova, XXIX; page 37-42; ISSN: 1223-5288).
Badea et al. teach Cucumis sativus cultivar, “Mathilde” (abstract, whole document). The Mathilde plant inherently comprises the instant claim limitations, as evidenced by Applicant’s response to the request under 37 CFR 1.105. Mathilde is an agronomically elite C. sativus plant, as evidenced by its commercial significance1.
Regarding claims 19 and 37: the term “introducing” encompasses any manner of introducing the modified ABCB9 gene, including introgression (instant specification, [0083]). Badea et al. refer to Mathilda plants as “Mathilde hybrid” (abstract, for example), which indicates this variety is a product of breeding. The limitations of claims 19 and 37 are met, given the Mathilda hybrid would have been produced from a cross in which at least one of the parent plants comprised the modified ABCB9 and EF1-a genes.
Claim Rejections - 35 USC § 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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 6, 8, 11, 19, 35 and 37 are rejected under 35 U.S.C. 103 as being unpatentable over Badea et al. as applied to reject claims 1, 3-10 and 33-34 under 35 U.S.C. 102(a)(1) above, and further in view of Hu et al. (Engineering Non-transgenic Gynoecious Cucumber Using an Improved Transformation Protocol and Optimized CRISPR/Cas9 System, 2017, Molecular Plant, 10:1575-1578).
Badea et al. describes the agronomically elite cucumber (Cucumis sativus) plant, Mathilde, as discussed above.
Regarding claims 6 and 8: As discussed, Mathilde is an agronomically elite cultivar. It would have been obvious and within the scope of one of ordinary skill in the art to have selfed Mathilde plants to produce an agronomically elite inbred. One would have been motivated to do so, to develop highly uniform, homozygous inbred lines ensuring predictable, high-yielding traits including specific sex expression (e.g., gynoecy, which is useful to produce hybrid varieties). The limitations of claims 19 and 37 would also have been met by such self-crossing.
Claims 11 and 35 depend from claim 1 and are drawn to a tissue culture of the cucumber plant of claim 1. Claims 19 and 37 also depend from claim 1 but drawn to a method for producing the agronomically elite Cucumis sativus plant of claim 1.
Regarding claims 11 and 35, it would have been obvious to an ordinarily skilled artisan to undertake tissue culture of Mathilde plants for various reasons including micropropagation, producing transgenic plants, and/or genome edited non-transgenic plants. Hu et al. describes an improved method to transform cucumber plants to generate a gynoecious cucumber line through CRISPR/Cas9-mediated mutagenesis (abstract, last 3 lines). The method describes tissue culture protocol to produce transgenic plants (page 1577, right column, last para, line 2-6). The genome edited T0 plants subsequently produce T1 plants and seeds thereof, from which homozygous transgene-free T2 plants (page 1577, right column, para 2, line 19-21) are produced.
An ordinarily skilled artisan would have been motivated to undertake tissue culture of the specific cucumber variety for various reasons including micropropagation, producing transgenic plants, and/or genome edited non-transgenic plants using well-known and standard methods to introduce beneficial genes in the agronomically elite cucumber variety.
Conclusion
No claim is allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Communication
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAY CHATTERJEE whose telephone number is (703)756-1329. The examiner can normally be reached (Mon - Fri) 8.30 am to 5.30 pm..
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Jay Chatterjee
Patent Examiner
Art Unit 1662
/Jay Chatterjee/Examiner, Art Unit 1662
/BRATISLAV STANKOVIC/Supervisory Patent Examiner, Art Units 1661 & 1662
1 MyGardenLife.Com website provides the evidence that Mathilde variety of cucumber plants have commercial significance and sold commercially. https://mygardenlife.com/plant-library/pickling-cucumber-mathilde-cucumis-sativus