A TOMATO PLANT COMPRISING DOMINANT RESISTANCE GENES TO TOMATO BROWN RUGOSE FRUIT VIRUS

lisDETAILED 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 Three sets of claims were filed in 2023 on 19 January. The final set had new claims 32-49. Applicant filed another set of claims on 23 October 2025. The claims are now 32-35, 37-39. The Office posted a non-final Office action 24 July 2025. The Office posted a Restriction Requirement on 9 February 2026. Applicant responded to the February Office action on 8 March 2026 and elected SEQ ID NO:19 and SEQ ID NO:30 without traverse. The requirement is deemed proper and is therefore made FINAL. A Notice of a non-compliant response was posted on 4 April. Applicant responded two days later by deleting Appendix 3 and submitting a substitute specification. Claims 32-35, 37, 39-42 and 47-49 are pending and are examined herein. Examiner’s Notes & Claim Interpretation Citations to Applicant’s specification are abbreviated herein “Spec.” Occasionally, “SIN:” may be used as an abbreviation “SEQ ID NO:” herein. In the BACKGROUND section of the specification, Applicant cites to several patent publications teaching resistance genes. WO 2019/110130 A1 (Hamelink et al. (13 June 2019); associated with U.S. Patent No. 12,628,751 B2. U.S. Patent Publication No. 2020/0048655 A1; now U.S. Patent No. 11,162,110 11,162,110 (Allersma et al.). U.S. Patent Publication No. 2020/0077614 A1 now U.S. Patent No. 11,730,135 (Ashkenazi et al. Ss seen in the alignment below, SEQ ID NO:19 appears to be free of the prior art. AB013724/c LOCUS AB013724 5378 bp DNA linear PLN 20-DEC-2010 DEFINITION Solanum lycopersicum transposon-like element Lyt2-2 DNA. ACCESSION AB013724 VERSION AB013724.1 KEYWORDS . SOURCE Solanum lycopersicum (Lycopersicon esculentum) ORGANISM Solanum lycopersicum Eukaryota; Viridiplantae; Streptophyta; Embryophyta; Tracheophyta; Spermatophyta; Magnoliopsida; eudicotyledons; Gunneridae; Pentapetalae; asterids; lamiids; Solanales; Solanaceae; Solanoideae; Solaneae; Solanum; Solanum subgen. Lycopersicon. REFERENCE 1 AUTHORS Ogura,Y. and Motoyoshi,F. TITLE Characterization of new transposon-like elements in tomato JOURNAL Unpublished REFERENCE 2 (bases 1 to 5378) AUTHORS Ogura,Y. TITLE Direct Submission JOURNAL Submitted (07-MAY-1998) Contact:Yutaka Ogura Okayama University, Research Institute for Bioresources; 2-20-1, Chuo, Kurashiki, Okayama 710-0046, Japan FEATURES Location/Qualifiers source 1..5378 /organism="Solanum lycopersicum" /mol_type="genomic DNA" /db_xref="taxon:4081" /note="synonym: Lycopersicon esculentum" repeat_region 484..492 /note="flanking repeat; putative" /rpt_type=direct mobile_element 493..4851 /mobile_element_type="transposon:transposon-like element Lyt2.0" repeat_region 493..721 /note="terminal inverted repeat; putative" /rpt_type=inverted CDS 1141..3297 /note="unnamed protein product; hypothetical protein" /codon_start=1 /protein_id="BAJ06702.1" /translation="MNAVVSFVPQLGEQELREPYIGMEFQSLDTGFKFYLDYAHRNGF SVRKNRISRSRKDKSIIGQEFVCSKEGFRSKKCLESNKQRDETREGCKVMIYMSKKEE EKWVIARLVLNHNHELASPNSQKFLRSKRKKSEAQKNLIDLLNNSGIRPSKIASVLTT QAGGIENLNITGRDIQNYLSTKRQNCLEKGDAQLMLKYFQKRQSDSPGLFYAIQMDVE GHLANCFWVDARSRIAYKNFGDVVLFDPTYLTNKYKMPFVPFTGVNNHHQSILFGCSL LWDETKETFQWLLHTWQEAMFGISPRTIITDQDAAITNAVAKVFPNSAHPFCMWHIEK KIPEYLSHVFHAFDDFKNKFSKCLHCTTTPEEFEIAWIDIMKMYNLEEHIWLRKIYTI REKWIPAYVRTTFCAGMSTTQRSESINKYFKDYLNSSTPMSVFVTQYDKVVDARYDKV REKDYKTKHSKAILKTLYPMEDEAAKIYTRKIFQKFQEELIQSQKFISEKIEVQDGIH IYKVHLFQRETPTYIVSLNLELKNATCSCHKFEFMGILCRHVLMIFIKKQIHSLSPCY LLDRWTRYATTEKANDISSAGSLAYNLKSSTIWFNNIMTHSLGLSERATRSEKHYKFT YQKLLQLSKELDELPYEDNDNVCDDQVNESNNDLNSSEQREKFSLLDPPCVTTKGRPR SLRMKSGLESSQKVKRSSSLKSKRETKIRKKGKGVR" repeat_region 4315..4324 /note="flanking repeat; putative" /rpt_type=direct repeat_region 4325..4459 /rpt_type=inverted repeat_region 4499..4632 /rpt_type=inverted repeat_region 4633..4642 /note="flanking repeat; putative" /rpt_type=direct repeat_region 4852..4860 /note="flanking repeat; putative" /rpt_type=direct ORIGIN Query Match 28.0%; Score 280.2; Length 5378; Best Local Similarity 70.3%; Matches 404; Conservative 0; Mismatches 168; Indels 3; Gaps 2; Qy 167 AATATTTCACTAAATTAATATATGTGGATCATAAATTATTAGTATTATATTGTAAAGATA 226 ||| | | | | || | || || | |||| || |||| | | ||| Db 4817 AATTATACGGACATATTATTTTTGGAAATATTTAATTTTTTTAATTAATATATTTTAATA 4758 Qy 227 TTATTAGTATTATATTGTAAAGATATTATTTAATTAATAAATTAATATTTATTGATTTCA 286 |||||| ||||| | |||| ||| || | | || || | || | | Db 4757 TTATTAATATTAAA--ATAAAAATAATAAAAGAGTGTTATATGGTAACTTGAATTATAAA 4700 Qy 287 ATAATATTTTAAGATTCAATATAGGTTAATTTTATTTACATTAAAATCATTATATCACAC 346 |||| | || || | || | ||| | | ||||| | | || | Db 4699 TTAATTGTACAAATTTAATTAGGATTCTTATTTGTCTTACCAAAAATAAAAAATACATAA 4640 Qy 347 TAGTTTAGAGATAATGTCGAAGTACCCCCTCAACCTATGCCCAAAATCCCAGCGACACAC 406 | || | || ||| || |||||||||||||||||||| ||||||||| ||||||| Db 4639 TTTCTTGGGGAAAATACTCAAATACCCCCTCAACCTATGCCCGAAATCCCAGAGACACAC 4580 Qy 407 TTATACTATACTAAGGTCCTATTAACCCCCCGAACTTATTTTATAAGTAGTTTTCTACCC 466 ||||||||||||||||||||||| |||||| |||||||||||||| || |||||||| | Db 4579 TTATACTATACTAAGGTCCTATT-ACCCCCTGAACTTATTTTATATGTGATTTTCTACTC 4521 Qy 467 CTTTTCAGCCTACGTGGTACTAGTTTTAAAAAAAAAGTCAATCATCATAGGACCCACAAG 526 || || ||||||||||| ||||||| |||||||||||||| |||| | || |||||||| Db 4520 CTATTTAGCCTACGTGGCACTAGTTCGAAAAAAAAAGTCAACCATCGTTGGGCCCACAAG 4461 Qy 527 ATAGTGCCACGTAGGCCGAAAAGGGGCAGAAAATTATTTTAAAAATAAGTTCAGGGGGGT 586 ||||||||||||| || |||||||| | ||||||||| |||||||||| |||||||| Db 4460 ATAGTGCCACGTAAGCTAAAAAGGGGTAAAAAATTATTAATAAAATAAGTTTAGGGGGGT 4401 Qy 587 AATAGGACCTTAGTATAGTATAAGTGTGTCTCTGATATTTCGAGCATAGATTGAGGGGGT 646 ||||||||||||||||||||||||||||||||||| |||||| |||||| |||||||||| Db 4400 AATAGGACCTTAGTATAGTATAAGTGTGTCTCTGAGATTTCGGGCATAGGTTGAGGGGGT 4341 Qy 647 ACTTGTGCACTATCCCTACTAGTTTATATAATATTTATGGAATTCACATAAAAAATGTAT 706 || || ||| |||||||| | || | | | || ||||| ||| | || | | Db 4340 ACATGGGCATTATCCCTAATTTCTTGTGTTTTCTTATTGGAAAGCACTTCAATCCTTCAA 4281 Qy 707 ACACCAAAAATCATTAGATCTTATTAAATTATGTA 741 | | | | | | || ||||| || | || Db 4280 AGAAAATCATTGCCAACATATTATTTTTTTTTATA 4246 As seen in the alignment below, SEQ ID NO:30 also appears to be a novel sequence. The closest match, at only approximately 19%, is seen below. RESULT 1 LC649809/c LOCUS LC649809 37273 bp DNA linear PLN 01-SEP-2022 DEFINITION Solanum tuberosum 17H131 mitochondrial DNA, note: 17H131_mtDNA_contig_2. ACCESSION LC649809 VERSION LC649809.1 DBLINK BioProject: PRJDB12191 BioSample: SAMD00400419 Sequence Read Archive: DRR315256 KEYWORDS . SOURCE mitochondrion Solanum tuberosum (potato) ORGANISM Solanum tuberosum Eukaryota; Viridiplantae; Streptophyta; Embryophyta; Tracheophyta; Spermatophyta; Magnoliopsida; eudicotyledons; Gunneridae; Pentapetalae; asterids; lamiids; Solanales; Solanaceae; Solanoideae; Solaneae; Solanum. REFERENCE 1 AUTHORS Sanetomo,R., Akai,K. and Nashiki,A. TITLE Discovery of a novel mitochondrial DNA molecule associated with tetrad pollen sterility in potato JOURNAL BMC Plant Biol 22 (1), 302 (2022) PUBMED 35725378 REMARK DOI:10.1186/s12870-022-03669-8 Publication Status: Online-Only REFERENCE 2 (bases 1 to 37273) AUTHORS Akai,K. and Sanetomo,R. TITLE Direct Submission JOURNAL Submitted (02-SEP-2021) Contact:Kotaro Akai The National Agriculture and Food Research Organization, Potato Breeding Laboratory, Hokkaido agricultual Research Center; Shinsei-minami, 9sen4, Memuro-cho, Kasai-gun, Hokkaido 082-0081, Japan COMMENT ##Assembly-Data-START## Assembly Method :: Flye v. 2.7 Sequencing Technology :: MinION ##Assembly-Data-END## FEATURES Location/Qualifiers source 1..37273 /organism="Solanum tuberosum" /organelle="mitochondrion" /mol_type="genomic DNA" /cultivar="17H131" /db_xref="taxon:4113" /note="17H131_mtDNA_contig_2" ORIGIN Query Match 18.7%; Score 187.4; Length 37273; Best Local Similarity 81.0%; Matches 218; Conservative 0; Mismatches 51; Indels 0; Gaps 0; Qy 624 TTGTAAGTTAGCCTTCCATTAATCGTAATAGCCCCTTGGGCTTAAAACATGTGGCTACGA 683 || || | |||||| | | ||||| |||| | ||||||||||| ||| |||||| | | Db 10104 TTTTAGGGTAGCCTCCAAGTAATCCTAATGGACCCTTGGGCTTGAAATATGTGGGTGGGC 10045 Qy 684 CATTTTGTAGAGGCCAAACCTAGCCCAATGTAGTTGGATTTCACTTAAGTCATGCAATCT 743 | ||||||||||||| ||||||||||||||||||||||||| |||||||||||||||||| Db 10044 CGTTTTGTAGAGGCCCAACCTAGCCCAATGTAGTTGGATTTGACTTAAGTCATGCAATCT 9985 Qy 744 TGACATAAATAATTAATCCGGCTTTATTAACCCAAAATGTTGACTTGGTTCAATCTGTCT 803 |||| ||||||||||||||||||||||||||||||||||||||||||| ||||| ||||| Db 9984 TGACTTAAATAATTAATCCGGCTTTATTAACCCAAAATGTTGACTTGGGTCAATATGTCT 9925 Qy 804 TCAATTTATAACTTTGTTCAAATTTTGTGTGGACTTAATACCATAAAATTTTGTATGTCT 863 | |||||| ||||| || || | | |||||||||| ||||||||||||| |||||| Db 9924 TGAATTTAGAACTTAGTCCATACAAAATTTGGACTTAATCCCATAAAATTTTGCATGTCT 9865 Qy 864 TGATATTAACAAATTGCATTTTTAGTCCT 892 | | || | | ||||| | Db 9864 ACACTTACCAAACTAGGTAAGCTAGTCAT 9836 Claim Objections Claims 35, 37, 39, 40, 41 and 42 are objected to because of the following informalities. Claim 35 is objected to because (ToBRFV) in line 3 is redundant since it is written out immediately preceding. The meaning of the abbreviation was established in claim 32.A similar objection is made to claim 37; as well as claims 39, 40, 41, and 42. Also, in claim 35 “QTL” should be plural to correspond to “genes.” A similar objection is made to claim 37, and 41. Applicant uses the abbreviation “QTLs” in the specification. Appropriate correction is requested. 35 USC § 112(b)-Based Claim Rejections 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. Rejection for Referencing Deposit That Is Not Perfected Claims 32-35, 37, 39-42 and 47-49 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. Claim 32 recites the limitation “accession number NCIMB 43817” in reference to deposited seeds. Until the deposit is perfected, the meaning of this limitation is uncertain and creates ambiguity in the claims and thus renders the claims indefinite. The term is not well known and generally accepted in the art, and the use of this name by itself does not carry art-recognized limitations defining the specific characteristics or essential characteristics that are associated with this denomination. The claims are rejected because they individually or through their base claim(s) reference a deposit that is not currently perfected by Applicant. Thus the accession number lacks a meaning and thus renders the claims indefinite. Thus, an artisan’s ability to determine the metes and bounds of the claim is impaired. See In re Hammack, 427 F.2d 1378, 1382; 166 USPQ 204, 208 (CCPA 1970). Rejection for Undefined Functional Element and for Indefinite Claim Language Claim 32-35, 37, 39-42 and 47-49 are additionally 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 32-35, 37, 39-42 and 47-49 are rejected for using an insufficiently defined functional limitation. Claim 32 is drawn to a tomato plant with “a partially dominant one or more resistance gene or genes” which gene or genes provide resistance to ToBRFV and, relative to the elected species, wherein said plant also comprises one of two nucleotide sequences. This gene and these QTLs are asserted to be from chromosome 2 of a tomato plant. For one QTL, the nucleic acid sequences are one of SEO ID NOs:1-26 with SEQ ID NO:19 elected. The claims require genetic information / genes providing resistance to tomato brown rugose fruit virus (lines 1-2) but that genetic information is not provided. Applicant provides deposited seeds and refers to chromosome 2 but there are MANY genes on chromosome 2. What section of chromosome 2 contains the gene is NOT provided. Nor is the relationship between the sequences and the gene taught. The tomato genome is estimated to be 900 Mb in 14 chromosomes. Tomato. Gen. Consort. (2012) Nature 485(7400):635 41 (p. 4). Although the gene activity is required, neither the gene location on chromosome 2 nor the gene sequence is taught. Many dependent claims refer back to this gene. Thus this language imposes a limit on the claim, the boundaries are unknown because a structure needed to accomplish the recited function is not taught. The specification fails to set forth what genetic information is associated with the phenotype. Similarly, claim 37 requires “genes or QTL conferring sensitivity to ToBRFV” but this a broad genus and in particular it is indefinite how a QTL can confer sensitivity. Nor is a particular gene conferring sensitivity taught. The claims are not directed at a tomato cultivar, rather they are directed at a disease resistance gene. Thus the genetic information contained in the gene is essential to understanding the scope of the claim. The teachings, or lack thereof, of Applicant's specification are discussed in greater detail in the rejections under 35 U.S.C. 112(a), infra. As pointed out, Applicant does not teach anything about the gene other than its chromosome and an assortment of markers plus its phenotype. Applicant does not teach the sequence of the gene. Thus, although an active gene is required, the instant claim language imposes no limits as to the structure needed for the claimed function to be performed. Applicant is reminded that while functional limitations may be properly used in claims, the boundaries imposed by a functional limitation must be clearly defined under 35 U.S.C. 112(b). Claim language that merely states a result to be obtained without providing boundaries on the claim scope is unclear. See e.g. "Enhancing Clarity By Ensuring That Claims are Definite Under 35 U.S.C. 112(b)," 20 May 2016 (available at https://www.uspto.gov/patent/laws-and-regulations/examination-policy/examinationguidance-and-training-materials). As a result, the metes and bounds of the claims are indefinite. Claim 41 is included because in line 4 one embodiment is “lacking” “QTL.” This structure is repeated in part (e) lines 4-5. A QTL is reasonably interpreted as a DNA fragment the sequence of which is used as a marker. Thus it can be any arbitrary sequence. Applicant arguably uses SEQ ID NO:21 through SEQ ID NO:34 as QTLs for chromosome 11. However the claim does not require the lack of one of those sequences, just a lack of any QTL as a generic class. Finally, there is no reason to accept that SEQ ID NOs:27-34 are an exhaustive list of all possible QTLs. Even if the QTL is restricted to one of those SEQ ID NOs, how can its “lack” be measured in view of SEQ ID NO:30 being a novel sequence heretofore unknown to the art. So arguably most tomato plants qualify. Further one embodiment is the of ‘lacks a QTL’ is that it lacks any of the defined QTLs but hen how can it have one of the recited SEQ ID NOs? Or indeed lacks SEQ ID NO: 30? Furthermore, Applicant has not established how the lack of a QTL can confer sensitivity. Thus that requirement and claim is indefinite. Claim 42 is also included because lines 2-3 state a lack in the tomato plant but the last three lines place this ‘lack’ on chromosome 11. Further, if there is a lack, how can it have a physical location? Dependent claims are included in the above rejections because none provide limitations obviating the rejection(s). EXAMINER’S NOTE: Perhaps the claims need start with a defined plant with defined attributes. Improper Markush Group Claims 32-35, 37, 39-42 and 47-49 are rejected on the basis that they contain an improper Markush grouping of alternatives or depend from such a claim. See In re Harnisch, 631 F.2d 716, 721-22 (CCPA 1980) and Ex parte Hozumi, 3 USPQ2d 1059, 1060 (Bd. Pat. App. & Int. 1984). A Markush grouping is proper if the alternatives defined by the Markush group (i.e., alternatives from which a selection is to be made in the context of a combination or process, or alternative chemical compounds as a whole) share a "single structural similarity" and a common use. A Markush grouping meets these requirements in two situations. First, a Markush grouping is proper if the alternatives are all members of the same recognized physical or chemical class or the same art-recognized class, and are disclosed in the specification or known in the art to be functionally equivalent and have a common use. Second, where a Markush grouping describes alternative chemical compounds, whether by words or chemical formulas, and the alternatives do not belong to a recognized class as set forth above, the members of the Markush grouping may be considered to share a "single structural similarity" and common use where the alternatives share both a substantial structural feature and a common use that flows from the substantial structural feature. See MPEP § 2117. The Markush groupings in, for example, claim 32 and SEQ ID NOs:1-26; and claim 27, SEQ ID NOs:27-34 are improper because the alternatives defined by the Markush grouping do not share both a single structural similarity and a common use for the following reasons. The sequences have minimal identity to each other. As seen above, the ‘best’ sequence identity scores are very low. SEQ ID NO:19 is has a low level of identity to a tomato gene while SEQ ID NO:30 appears to most closely resembles a potato gene. The sequences of, e.g., SEQ ID NO:1 though SEQ ID NO:26 also do not appear to share a significant degree of sequence identity. Certainly, when SEQ ID NO:19 is searched against a database containing the other sequences of the application, only two appeared in the list and at a very low level of sequence identity (SIN22 and SEQ ID NO:26). The discussion of the claims in the written description rejection below is incorporated by reference here. Of particular concern is “derived from” and “configured to” as discussed below. Applicant teachings are that such a diverse group of sequences will function within the claims the same, or alternatively, that the precise sequence is a necessary part of the claimed invention. Add to that the uncertainty as to any one of SEQ ID NO:1 to SEQ ID NO:19 relationship to the claimed gene. Extending to that, SEQ ID NO:27 to SEQ ID NO:34 appear to relate to an absence of activity or disease resistance. Which is somewhat difficult to categorize as to what the marker could be used for an absence of activity in an abstract sense. Therefore the species of the Markush group lack both a substantial structural feature and a common use that flows from the substantial structural feature To overcome this rejection, Applicant may set forth each alternative (or grouping of patentably indistinct alternatives) within an improper Markush grouping in a series of independent or dependent claims and/or present convincing arguments that the group members recited in the alternative within a single claim in fact share a single structural similarity as well as a common use. The indefiniteness of the claims impacts this analysis. Claims depending on the claims reciting an improper Markush group are included in this rejection. Amending the claims to recite only the elected species would obviate the rejection. 35 USC § 112(a) based Claim Rejections The following is a quotation of 35 U.S.C. 112(a): The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), first paragraph: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same and shall set forth the best mode contemplated by the inventor of carrying out his invention. Rejection under the Written Description Requirement Regarding Claim Sope Claims 32-35, 37, 39-42 and 47-49 are rejected 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. The claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention as broadly as claimed. The Federal Circuit held that a written description of an invention "’requires a precise definition, such as by structure, formula [or] chemical name,’ of the claimed subject matter sufficient to distinguish it from other materials." Regents of the Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1568, 43 USPQ2d 1398, 1405 (Fed. Cir. 1997) (quoting Fiers v. Revel, 984 F.2d 1164, 1171, 25 USPQ2d 1601, 1606 (Fed. Cir. 1993)). The court also stated "naming a type of material generally known to exist, in the absence of knowledge as to what that material consists of is not a description of that material." Id., 119 F.3d at 1568, 43 USPQ2d at 1406. The court held that “[a] description of a genus of cDNAs may be achieved by means of a recitation of a representative number of cDNAs, defined by nucleotide sequence, falling within the scope of the genus or of a recitation of structural features common to members of the genus, which features constitute a substantial portion of the genus.” Id., 119 F. 3d at 1569, 43 USPQ2d at 1406. Claim 32 is drawn to a tomato plant harboring a partially dominant resistance gene or genes to tomato brown rugose fruit virus (ToBRFV). This plant is further required to have “one or more genetic sequences derived from a tomato plant grown from seeds having a deposit accession number NCIMB 43817.” The claim further requires that the “one or more genetic sequences” has, relative to the examined sequence, SEQ ID NO:19. First, reference to “a tomato plant grown” from the deposited seeds is explicit. Second, the claim uses the limitation “derived from” which broadens its scope. Claim 32 requires the presence of a “partially dominant resistance gene” or “genes.” Dependent claim 33 is drawn to a seed. Dependent claim 34 is drawn to genus that includes a seed. Dependent claim 42 is drawn to the tomato plant of claim 32 lacking the “sensitivity gene” or the elected QTL, SEQ ID NO:30. Independent claim 35 is drawn to a genetic marker which may be used in identifying or selecting “tomato plants” (plural) harboring “partially dominant resistance” to ToBRFV. The marker “is configured” to be linked to “one of more genes or QTL [QTLs?] conferring partially dominant resistance to ToBRFV in said tomato plants. The limitation includes “configured” which suggests that human manipulation can give rise to the linkage. With SEQ ID NO:19 being examined, it can be “configured” to be linked to be linked a nucleic acid fragment with another SEQ ID NO. Further, it recites “one of more genes” “conferring partially dominant resistance to” ToBRFV but not necessarily only the one in the deposited seeds. Although a claim to a marker that has a specific sequence might arguably be described, the limitations discussed above broaden the claimed genus. Claim 39 depends from claim 35. Independent claim 37 is drawn to a genetic marker which may be used in identifying or selecting against “tomato plants” (plural) harboring “sensitivity to ToBRFV.”. The marker “is configured” to be linked to these. Again, the claim includes the limitation “configured” which suggests that human manipulation can give rise to the linkage. With SEQ ID NO:30 being examined, it can be “configured” to be linked to be linked a nucleic acid fragment with another SEQ ID NO. Further, it appears to read on any gene that does not provide resistance to ToBRFV, but not necessarily related to the gene or genes in the deposited seeds. Claim 40 depends from claim 37. Dependent claim 41 depends from both claim 35 and claim 37 and, broadly speaking, uses claim 35’s marker to obtain a plant with a resistance gene and claim 37 to avoid a sensitivity gene. Dependent claim 38 lists some putative genetic markers. Independent claim 37 is again drawn to genetic markers. Dependent claim 38 focuses on chromosome 11. Dependent claim 39 uses the markers of claim 35 in a method. Dependent claim 41 again uses the markers of claim 35 in a method. Dependent claim 40 uses the markers of claim 37 in a method. Independent claim 41 encompasses vast genera because of its frequent use of “and/or” plus the undefined “QTL” can be reasonably interpreted in a vast number of contexts. Claim 42 is drawn to a tomato plant with “partially dominant resistance gene or genes is on chromosome 2, said sensitivity gene or genes is on chromosome 11.” All “gene or genes” are undefined and, of course, “gene or genes” broadens the scope. Dependent claim 46 recites various accessions and species. Also regarding claim 42, lines 2-3 state a lack in the tomato plant but the last three lines place this on chromosome 11. Claim 42 is rejected under 35 USC 112(b) so it can be reasonably interpreted to rad on a large genus. Independent claim 43 is again drawn to genetic markers. Dependent claim 44 recites chromosomal locations. Dependent claim 45 is rejected under 35 USC 112(b) on multiple grounds. Dependent claim 47 specifies that one of the plants is S. lycopersicum. Dependent claims 48 and 49 are drawn to, e.g. seeds. The claims thus encompass vast genera of tomato plants, resistance genes and markers. In contrast, Applicant provides limited written description. Figure 5 depicts a ToBRFV-resistant tomato leaf asserted to be of the instant invention. In Example 1, the specification discloses that they screened about 50 wild tomato species accessions (p. 18). Nine had some resistance to ToBRFV. “The resistant plants were derived from the following 9 accessions: LA0107 (S. corneliomulleri), LA0361, LA1918, LA2650 (S. habrochaites), LA1938, LA1969, LA2748, LA2755 and LA2931 (S. chilense).” In Example 3 (p. 19) Applicant performed crosses and genetic mapping. In Example 5 (p. 27), Applicant describes sequencing. In Example 7 (p. 31) Applicant describes QTL analysis. At the bottom of page 35, Applicant concludes: 1. For chromosome 2 there are 26 (SEO ID Nos: 1-26) sequences spanning over a region of [approximately]l8Mbp 2. For chromosome 11 there are 8 sequences (SEO ID Nos: 27-34) spanning over a region of [approximately]3Mbp As disclosed above the Chromosome 2 region is correlated '\.Vith the resistance phenotype while the chromosome 11 region is correlated with the sensitivity phenotype. Hence, in order to predict resistant plants, markers at chr-2 should be selected for and markers at chr-11 should be selected against. The claimed invention lacks adequate written description under the following analysis. Neither the structure of a ToBRFV resistance allele or the association of any of the QTLs recited as SEQ ID NOs associated with ToBRFV resistance are not described. Claim 32 does not disclose the structure of any ToBRFV resistance allele. The specification does not describe what traits the QTL on chromosome 11 and the QTL on chromosome 2 confer. The claimed genus encompasses any resistance gene to ToBRFV as long as the genomic fragment comprises one of SEQ ID NO:1 through SEQ ID NO:27 with SEQ ID NO:19 being elected. The examined SEQ ID NO as well as the recited SEQ ID NOs are all quite short and there is no evidence that they directly impact ToBRFV resistance. As discussed above, Applicant’s BACKGROUND section and thus the prior art teaches genes providing resistance to ToBRFV in tomatoes. Hamelink et al.; WO 2019/110130 A1 (e.g. abstract). Hamelink et al.’s abstract also teaches it is on chromosome 11 (compare to instant specification, p. 6, l. 5). Applicant reviews the prior art on pages 2 and 3, citing to Hamelink et al. Applicant also cites to the publication of Allersma et al. U.S. Patent Publication No. 2020/0048655 A1 (also PCT WO 2020/0178783 A1 (23 Jan. 2020); also Ashkenazi et al. (U.S. 2020/0077614 A1); also Ykema et al. (WO 2020/148021 A1) (priority to 2019). Therefore such resistance genes were known in the prior art but not defined as to the gene or protein sequence in these publication. However, see, Ishibashi et al. (2009) Proc Natl Acad Sci 106(21):8778 83, which teaches a 754 amino acid resistance protein (just before “RESULTS” section) which can be transgenically expressed in tobacco. The protein was found in S. habrochaites. See Vas-Cath Inc. v. Mahurkar which held that the purpose of the written description is, inter alia, for the purpose of warning an innocent purchaser, or other person using a machine, of his infringement of the patent; and at the same time, of taking from the inventor the means of practicing upon the credulity or the fears of other persons, by pretending that his invention is more than what it really is, or different from its ostensible objects, that the patentee is required to distinguish his invention in his specification. Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1561, 19 USPQ2d 1111, 1115 (Fed. Cir., 1991) (quoting Evans v. Eaton, 20 U.S. (7 Wheat.) 356, 434, 5 L.Ed. 472 (1822). In this case, a practitioner is not provided sufficient description to be able to determine if any particular tomato plant with the appropriate resistance phenotype is infringing the instant claims. Therefore, the public has not been put on notice with a sufficient description of the claimed invention. Given the large amount of data provided in the appendices versus the lack of concrete structure / activity relationships provided, Applicant’s specification resembles a research plan. The Federal Circuit, however, held that merely providing a research plan does not satisfy the written description requirement. Otherwise, one has only a research plan, leaving it to others to explore the unknown contours of the claimed genus. See Ariad, 598 F.3d [1336] at 1353. (The written description requirement guards against claims that "merely recite a description of the problem to be solved while claiming all solutions to it and ... cover any compound later actually invented and determined to fall within the claim's functional boundaries."). AbbVie Deutsch/and GmbH & Co. v. Janssen Biotech, lnc.,759 F.3d 1285, 1300, 11 UIS.P.Q.2d 1790 (Fed. Cir. 2014). Therefore Applicant fails to satisfy the written description requirement for the pending claims. Applicant fails to describe a representative number of species compared to the size of the claimed genus. Applicant also fails to adequately describe the structure / activity relationship under the Lilly test. One of ordinary skill in the art would not be able to envision the full extent of the genus claimed. Additionally, Applicant fails to characterize the genes for the observed resistance to the ToBRFV. Enablement Requirement / Deposit Claims 32-35, 37, 39-42 and 47-49 are rejected 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. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. The invention requires novel plants; with the lack of written description it requires deposited seeds. F Thus the plant is essential to the claimed invention thus it must be obtainable by a repeatable method set forth in the specification or otherwise be readily available to the public. If the plant is not so obtainable or available, the requirements of 35 U.S.C. § 112 may be satisfied by a deposit of the seeds. A deposit of 625 seeds of each of the claimed embodiments is considered sufficient to ensure public availability. The specification does not disclose a repeatable process to obtain the plant / gene and thus it is not apparent if the plant is readily available to the public with respect to this application. The specification does not teach such a process. Therefore Applicant must deposit seeds to comply with 35 USC 112(a). If a deposit is made, the deposit must be accepted under the terms of the Budapest Treaty or the results or a viability test must be provided. Also, a statement, affidavit or declaration by Applicant, or a statement by an attorney of record over his or her signature and registration number, or someone empowered to make such a statement, stating that the instant invention will be irrevocably and without restriction released to the public upon the issuance of a patent, is required to satisfy the deposit requirement made herein. Dependent claims are included in this rejection. Scope of Enablement; Evaluating Scope v. Single Deposit 16. The claims are also rejected because other than the putatively deposited seeds and the gene found in the deposited seeds, the disclosure not reasonably provide enablement for the full scope of the claimed invention which is much broader than just the gene arguably present in the deposited seeds.. The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the invention commensurate in scope with these claims. The Federal Circuit in In re Wands lists eight considerations for determining whether or not undue experimentation would be necessary to practice an invention. In re Wands, 858 F2d 731, 8 USPQ2d 1400, 1406 (Fed. Cir. 1988). These factors are: the quantity of experimentation necessary, the amount of direction or guidance presented, the presence or absence of working examples of the invention, the nature of the invention, the state of the prior art, the relative skill of those in the art, the predictability or unpredictability of the art, and the breadth of the claims. Id. The scope of the claims is discussed above and is incorporated by reference herein. The invention requires tomato plants with novel characteristics. Also various markers. The teachings of the specification are also incorporated by reference herein. Applicant provides a large amount of data regarding QTLs, but lacks direct guidance as to how to move from the vast number of QTLs to the required gene. The disclosure lacks adequate guidance. Further, The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility. Unless and until a process is refined and developed to this point-where specific benefit exists in currently available form, there is insufficient justification for permitting an application to engross what may prove to be a broad field Brenner v. Manson, 383 U.S. 519, 534-35, 148 USPQ 689, 695 (1966). Additionally, “a patent is not a hunting license. It is not a reward for the search, but compensation for its successful conclusion. "[A] patent system must be related to the world of commerce, rather than to the realm of philosophy. . . ." Id., 383 U.S. at 536, 148 USPQ at 696 (quoting In re Ruschig, 52 CCPA 1238, 343 F.2d 965, 970, 145 USPQ 274, 279). Conclusion No claim is allowed. Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUSSELL T BOGGS whose telephone number is (571)272-2805. The examiner can normally be reached Monday - Friday, 0800 to 1830 Mtn. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amjad Abraham can be reached at 571-270-0708. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /RUSSELL T BOGGS/Examiner, Art Unit 1663