DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 30 Apr 2026 has been entered.
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 .
Claim Status
Claims 1, 3-4, 6-9, 11-14 & 16-20 are under examination on the merits.
Claims 2, 5, 10 & 15 are cancelled.
Priority
Claims 1, 3-4, 6-9, 11-14 & 16-20 receive the U.S. effective filing date of 10/28/2020. Acknowledgement is made of Applicant’s claim for a foreign priority under 35 U.S.C. 119(a)-(d). The certified copy of Application No. EPO 20204432.7 is filed with WIPO.
The previous rejection of claims 11-12 under 35 U.S.C. 112(b) is withdrawn in view of Applicant’s amendment to the claims.
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 19-20 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 19 is drawn to expected yields given particular anther extrusion characteristics of male wheat plants. It includes limitation of ‘anther extrusion of 0.5-1’ values.
The claim is indefinite because it requires an anther extrusion value which is undefined and apparently subjective. The claim does not provide an objective measure of the ‘0.5-1’ anther extrusion rating; looking to the specification for clarification, Applicant merely states this is reported on a scale of 0-3 wherein 0 = no anthers fully extruded and 3 = all anthers fully extruded [p.84, l.6-10].
There is no clarification regarding ‘extruded’ versus ‘fully extruded’, percentage of plants within a given plot observed to arrive at the score, appropriate comparative checks that would represent germplasm of any particular anther extrusion rating, or informative pictures or images to show the reader the difference between values of 0.5, 1, 1.5, 2, 2.5, or 3. Absent such information, a limitation requiring the subjective measure of anther extrusion = 0.5-1 is indefinite because one reading the specification would have no way of ascertaining if their own particular wheat plants were displaying Applicant’s anther extrusion ratings of 0.5-1. What Applicant may consider an ‘anther extrusion rating = 1’ could vary considerably from what another individual would rate the same plants, absent guidance on objective rating procedures or relevant checks.
Because of subjective anther extrusion ratings being recited as limitations, claim 19 is rejected.
Claim 20 is drawn to expected yields given particular heading times wheat plants. It includes limitation of ‘heading times between…-4 to +3 days’.
The claim is indefinite because it requires the specific ‘heading times’ of the two parents to be within one week of each other. This is a specific limitation drawn to plant phenotype, requiring unambiguous assignment of the beginning of ‘heading times’ of each parent to determine infringement. However, Applicant does not define or clarify if the relevant starting date to measure this seven day window is:
(a) initial appearance of a single wheat head (i.e. first emergence from boot),
(b) a particular time point at which a specific percentage of the plot has headed (i.e. majority-based sampling window),
(c) the point at which all plants have fully headed (i.e. complete heading), or
(d) if ‘heading’ as used in the claim requires also flowering/pollen-shed (i.e. relation of heading to anthesis).
No clarifying definition is included in the specification. Given broadest reasonable interpretation, and depending on whether a breeder recorded official start of ‘heading time’ as (a), (b), (c), or (d), the scope of claim 20 is variable as to whether a particular wheat planting would infringe.
Because the temporal bounds of ‘heading times’ now being recited as limitations are indefinite, claim 20 is rejected.
Claims 19 & 20 are drawn to yield of hybrid seed produced. Claim 19 recites yield of ‘up to 1.5kg of F1 hybrid seed’ from a 6m length of double row planting arrangement. Claim 20 recites yield of ‘up to 300 g of F1 hybrid seed’ from the same planting arrangement. Neither claim specifies the planting density of the rows or growing parameters such as water availability, fertilization, soil type, or seasonal conditions.
The yield of wheat is influenced by many factors. This includes planting density [See p.2877, col.1, ¶1 in Lollato, Crop Science. 2024;64:2877–2893 Published 16 July 2024, and, p.28, col.2, ¶2 in Tokatlidis, Ann Appl Biol 165 (2014) 27–42 Published 17 March 2014] as well as environmental conditions [See p.6, col.2, ¶2 in Azevedo, Euphytica (2023) 219:95 Published 18 August 2023]. Because of this, when describing yield and yield potential, researchers qualify the conditions or factors the particular yield or yield range is observed. This typically requires knowing a specific planting rate (i.e. population density), whether the field is irrigated or rainfed, whether fertilizer was applied and at what rate, and seasonal length and/or adaptive range under which the reported yield would be expected [for examples see p.4, Table 2 in Bastos, Front. Plant Sci. 11:54. Published 5 Mar 2020].
Applicant recites the row arrangement (i.e. 6m double rows) and flowering characteristics (i.e. ‘anther extrusion of 0.5-1’, and, ‘heading times…of-4 to +3 days’) but does not recite the planting rate (i.e. seeds or plants present per 6m row length) or general growing conditions (i.e. irrigated vs rainfed, specific minimum fertilizer rate, soil type, required seasonal length and/or heat).
Without such critical information, a limitation that specifies a yield outcome, particularly one that recites ‘is capable of producing up to’, is indefinite as to what methods or activities would infringe claims including such language. For example, one may have a higher-yielding method outside of the bounds of the claim, until some type of pest damage, heatwave or other random effect causes yield to fall below the threshold recited by Applicant.
Thus, the scope of activities which would infringe, and are encompassed by the newly added claims 19 & 20 are unclear. The recited yield limitations are not a definite method step per se, or even a characterization of a component of the method, but rather are descriptions of a potential outcome. This potentially encompasses numerous factors not defined or addressed by Applicant. One reading such claims would have no way of understanding the actual metes and bounds of Applicant’s method, or how to avoid infringement since it would primarily depend on their seasonal yield outcome.
Because of this consideration with respect to specific yield outcomes being recited as limitations, claims 19 & 20 are rejected.
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.
Claims 1, 3-4, 9, 11-14 & 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Beck [Management of Hybrid Maize Seed Production CIMMYT (2002) https: //repository.cimmyt.org/entities/publication/493cab72-4930-4650-9639-e6e9863a41a4/full verified 06-17-2025; Published 2002] in view of Gordon [WO 92/01366; Published 06-02-1992], and National Wheat Foundation [Press Release: NWF Announces National Winners for the 2019 National Wheat Yield Contest; Published 12 November 2019].
Due to Applicant’s amendment of the claims, the rejection is modified from that set forth in the Office Action mailed 5 February 2026, as applied to claims 1, 3-4, 9, 11-14 & 16-18. Applicant’s arguments filed 4 May 2026 have been considered but they are not persuasive.
The claims are drawn to production of hybrid wheat seed using ‘female rows’ crossed to ‘testers’, and generation of controlled crosses wherein the breeder can unambiguously assign the pedigree of seed produced. Claims recite limitations of expected yield or seed production.
Beck teaches production of hybrid maize using rows of detasseled, or functionally male sterile, plants planted in parallel, flanking rows next to intact, male fertile plants [p.18-20, Table 7]. Such practices have been established in commercial maize seed production for almost a century, whereby mechanical removal of the tassel (male flowers) was originally developed to generate ‘female’ plants. This is done to produce specific combinations of genotypes to ‘test’ for hybrid vigor, also known as heterosis or combining ability.
Beck also teaches more modern developments in pollen control used in hybrid seed production, including cytoplasmic factors, chemical hybridization agents (CHAs), and genetic mechanisms of male sterility to control pollen and generate seed against specific ‘testers’ [p.32-38, ‘Pollen Control’].
Beck does not teach the use of such ‘female row’ systems in wheat, where floral morphology would prevent mechanical detasseling. Wheat requires other means of generating and identifying female plants or separating functionally male-sterile (i.e. female) from male-fertile seed. Beck does not teach expected yields.
Gordon teaches such means or system in wheat via use of blue aleurone and ms1 genes, coupled with genetic ‘restorers’ to create hybrid cereal seed. They teach methods of sorting male fertile from male-sterile seed using seed coat color markers [p.4, ¶1]. They teach color markers are preferably the blue aleurone marker, and the overall system is depicted graphically in Figure 4 of their patent filing which shows use of the ms gene or its alleles as the source of sterility [cover page]. This system is referred to by wheat researchers as the ‘blue aleurone system’ or ‘BLA’ system.
National Wheat Foundation teaches that wheat fields can potentially yield up to 211 bu/acre [p.1, ¶5, ‘Bin Buster Winners’]. Applicant does not report their yields using standard bu/acre or m/hectare measures, nor does Applicant provide specific population density used, or seasonal/field data, to provide context for observed yields reported.
Conversion of Applicant’s claimed 6m double row arrangement yielding 0.3-1.5kg seed (claims 20 & 19, respectively) to production bushels per acre gives a range of approximately 97.6—146.9 bu/acre. Thus, Applicant’s newly added claims specifying yield results are within the known ranges of wheat.
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to modify the system of male and female rows from hybrid seed corn production, as taught by Beck, using the BLA genetic seed-marker sterility system specific to Triticum and taught by Gordon. It would also be obvious, and expected, that wheat would produce a yield somewhere within known reported ranges of wheat yield potential, wherein the upper bound(s) are taught by National Wheat Foundation.
One of ordinary skill in the art would have been motivated to combine these disclosures to more efficiently produce hybrid seed, using multiple experimental ‘female’ wheat lines. They would want to do this to more economically produce hybrid seed for assessing combining ability and avoid use of expensive and/or toxic chemical gametocides in generating male-sterile parents. One would do so expecting yield to be somewhere between ‘0’ (i.e. no yield/crop failure) and the known upper limit of wheat yield(s).
Gordon directly points to why one would be motivated to combine, because the BLA system has distinct advantage over use of CHAs & cytoplasmic male sterility systems (CMS). Gordon proposes use of the BLA system in absence of CHA & CMS to improve wheat hybridization [p.1, ¶3; p.2, ¶3].
Beck describes that using orderly rows of ‘female’ experimental lines in combination with fertile male testers is a preferred method of making test-crosses in maize. Genetic systems using male-sterility factors coupled to seed markers and restorer genes would be a way to achieve the same outcome in wheat (i.e. hybrid seed). That the most visible manifestation of using ‘female rows’ happens to be in maize does not limit cross-application to any other grain or plant, so long as one has a reliable way to control pollen or create a ‘female row’ physically, chemically, or genetically. A plant breeder would be motivated to use the well-known and highly efficient methods of hybrid corn seed production in other crops, when applicable.
Regarding claims 1 & 3; Beck describes using ‘female rows’ to generate F1 seed for hybrid production or trial [p.18-20, Table 7; p.3, Figure 1] and Gordon teaches the use of the BLA/ms system with alien addition chromosomes to generate male sterile (i.e. female) wheat plants [cover page, Figure 4]. Beck describes the need to control pollen and how use of parallel row-plantings during detasseling operations is deployed in hybrid seed production [p.29, ¶3].
Regarding claims 4 & 9; Beck describes row arrangements and planting densities when using ‘female row’ patterns for hybrid seed production, including patterns of 2-5 rows per entry and densities from 10-500 plants/m2 [p.18, ¶4—p.20, ¶1; p.10, ¶3—p.11, ¶1].
Regarding claims 11-12; Beck describes use of two separate populations of plants (i.e. a population from an entirety of potential plants) for both the separate, different male and female parents [p.3, Figure 1; p.4, ¶5—p.6, ¶4].
Regarding claim 13; Gordon describes a wheat hybridization system which does not use CHAs or CMS factors [p.1, ¶4—p.3, ¶3].
Regarding claims 14 & 16-18; Gordon describes a wheat (i.e. Triticum) hybridization system utilizing loss-of-function (i.e. knockout) mutation in the ms gene [p.3, ¶2; p.7, ¶6—9].
Regarding claims 19-20; claims recite yields ‘up to’ either 1.5kg or 300g, depending on anther extrusion characteristics and heading dates of the male parents. This would encompass any yield less than 1.5kg or 300g, respectively, the lower limit of which would be a yield of one seed. The disclosure of Gordon describes production of at least one wheat seed [p.9, ¶6—p.10, ¶2] using such a system.
Gordon does not characterize the ‘anther extrusion characteristics’ of the male sterile plants involved, nor the specific variability in flowering time that would be observed in field settings.
However, it would be reasonably expected that of their male plants, there would be range of naturally occurring phenotypic variation and some would have ‘low anther extrusion’ even if that was not the focus of their study, and thus not reported. It is notable that wild-type wheat, which is self-pollinating, would be expected to have a low anther extrusion rate due to its autogamous nature. Absent evidence to the contrary, Applicant has not made a case that the low anther extrusion rate which they are now reciting as a claim limitation is unique or otherwise different from previous reports. Moreover, it remains unclear what exactly the recited ‘anther extrusion of 0.5-1’ values consist of for any comparison to previous reports [see 112(b) rejections above, p.3, ¶2—p.4, ¶2].
Likewise, as in-field heading date was also not the focus of their study, Gordon did not report this. However, they describe development of the BLA system via backcrossing [p.8, ¶1—4]. Male-sterile ‘conversion lines’ resulting from backcrossing would be expected to have similar flowering date to the recurrent parent from which they were/are derived. Therefore, it is reasonable to consider there would have been male and female plants in such system that flowered at approximately the same time, or within 7 days of each other (i.e. ‘-4 to +3 days’). Because backcrossing generally selects for a single qualitative locus or gene, in this case male-sterility, resulting conversion lines will generally retain the quantitative characteristics of the original cultivar, such as flowering time.
Absent evidence to the contrary, these claims appear to be reciting values of inherent characteristics of germplasm that were simply not described by previous researchers because behavior in-field was not the focus of the prior research reports. Such detailed descriptions of previously uncharacterized, yet inherent characteristics of germplasm are not unique limitations. While such details are informative to growers, they do not make a method inventive or non-obvious.
Because of this obviousness in view of prior art, claims 1, 3-4, 9, 11-14 & 16-20 are rejected.
Claims 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Beck & Gordon as applied to claim 1 above, and further in view of Fischer [Field Crops Research 232 (2019) 95–105; Published 12-31-2018], and Haghighattalab [Plant Methods (2016) 12:35; Published 06-24-2016].
Due to Applicant’s amendment of the claims, the rejection is modified from that set forth in the Office Action mailed 5 February 2026, as applied to claims 6-8. Applicant’s arguments filed 4 May 2026 have been considered but they are not persuasive.
Claims are drawn to planting density & arrangements to be used with the male/female row system combined with the BLA sterility system of wheat.
As previously described, Beck & Gordon disclose the use of male-sterile ‘female’ rows to generate test crosses in maize as well as the use of the ‘blue aleurone’ (BLA) sterility system in Triticum for production of hybrids [see above p.6, ¶1-4].
Beck & Gordon do not teach row or plant spacing relevant to seed production in wheat.
However, Fischer teaches seeding studies in wheat outlining target production densities, plant spacing, and impact on yield and crop quality. Fischer’s study reviews 30 years of data from CIMMYT on wheat planting patterns, and describes row spacings ranging from 10-80cm [summarized on p.97, Table 1]. They also describe plant densities of 80-400 plants/m2 [summarized in Abstract]. Values disclosed by Fischer describe ‘low’, ‘normal’ and ‘high’ ranges of wheat planting density within the ranges claimed by Applicant. Applicant’s claimed planting arrangements appear to encompass most ‘normal’ or regular planting densities that would be used for wheat production or research plots in general. It is obvious to plant a crop at the relevant, described spacings commonly used.
Haghighattalab teaches the layout of particular row formats used in wheat breeding program nurseries or seed production plots in parallel, adjacent rows of varying density or canopy covers. Visual depiction of such parallel, flanking row patterns of alternate genotypes is provided by aerial imaging studies [p.10, Figure 5]. In their disclosure, Haghighattalab describes rows of <15m length, as in claim 6 of the instant application [p.3, col.1, ¶4].
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to modify the hybrid seed production system taught by Beck to one adjusted to wheat planting, as described by Fischer and depicted by Haghighattalab.
One would be motivated to use common wheat spacing and density, as described by Fischer and depicted by Haghighattalab, to produce seed. This is because crops are typically grown within known planting ranges, except in rare or exceptional circumstances that would suggest otherwise. One motivated to combine the teachings of Gordon & Beck with the agronomic teachings of Fischer & Haghighattalab would do so having reasonable expectation that wheat plants grown at the common wheat spacing and densities taught would yield seed somewhere in the range of known yield potentials for wheat.
Regarding claims 6-8; Haghighattalab teaches plots of 2.8m x 1.6m comprising rows of wheat (i.e. rows up to 15m) [p.3, ¶4] and Fischer teaches plant spacings ranging from 10-80cm [summarized on p.97, Table 1] as well as densities of 80-400 plants/m2 [summarized in Abstract].
Because of this obviousness regarding planting patterns, in view of prior art, claims 6-8 are rejected.
Response to Arguments
Applicant urges, with traverse, that the previous 103 rejection of claims 1, 3-4, 9, 11-14 & 16-18 is improper due to observed unexpected results [Remarks, p.8, ¶2]. Applicant argues that one of ordinary skill, upon reading the prior art, would have no expectation of producing yields recited. This appears to range from 97.6—146.9bu/ac (approximate conversion from 6m paired row lengths). Applicant argues the specific yields recorded are greater than expected.
This is unconvincing for several reasons.
First, Applicant is arguing highly specific yield values in the context of a wide range of planting arrangements and planting densities provided by their written description. Applicant does not indicate what an ‘expected result’ (i.e. seed yield) would be for one not using their method, nor the required conditions to determine a comparable ‘expected result’ absent their male sterility specific germplasm (i.e. lacks appropriate control for comparison).
It is recognized that planting density impacts yield of wheat. Yield expectations vary based on the planting density chosen by the grower [See above p.3, ¶3-p.4, ¶1]. Because of this, a yield of 1.5kg of seed from the very lowest possible planting density would suggest differently from the same yield at a ‘normal’ or moderate planting density, which would also differ from yield expectations when planted at the very highest possible density. It is also known that growing conditions impact yield of wheat. Because of this, a grower would have different expected seed yield from a heavily fertilized and irrigated field with clay soil than what would be the expected yield from a rainfed, sandy field in a hot climate.
Absent specific growing parameters (i.e. wheat plants at ‘X’ plants/acre, with ‘Y’ row spacing with environmental conditions of ‘Z’), one of skill would not be able to determine whether any observed yield result could be considered ‘unexpected’ because there is not enough relevant information about critical variables to objectively determine validity of such a statement. It is unclear if the observed results are significantly different than normal variation in yield of wheat. Absent any explanation of what would be considered ‘expected’ yield there is no basis for comparison to determine if something is significantly different. This is why yield studies in plant breeding require controls or check varieties to benchmark against.
Second, Applicant’s reported yields fall within known yield capability of wheat. Prior art describes wheat yields up to 211 bu/ac [National Wheat Foundation, p.1, ¶5, ‘Bin Buster Winners’]. This is well above Applicant’s recited yield values and it is unclear, absent evidence to the contrary, why Applicant’s observed yield would be considered unexpected since it is not outside of known values of potential grain yield in wheat. If the observed values are unique because of the particular germplasm used, there are no check variety comparisons or other objective performance of comparison to wild-type material, or the appropriate experimental controls.
Third, Applicant previously argued that yield results were ‘unexpected’ as ‘high seed yield’, to which the Office responded in the final rejection mailed 5 February 2026 [p.15, ¶5—p.19, ¶1]. Applicant has merely introduced new claims which recite specific yield numbers (i.e. ‘1.5kg’ and ‘300g’) and has not addressed the previous rejections regarding claim to ‘unexpected results’ based on their seed yields.
Applicant’s amended claim set is describing a wheat production system within the range of commonly accepted planting density, using commonly known nursery/row planting arrangements utilized in seed production, and provides yield within the known yield range of wheat.
As such, argument of ‘unexpected results’ based on yield observations is unconvincing and rejection of all claims is maintained.
Conclusion
No claims are allowed.
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Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEITH R WILLIAMS whose telephone number is (571)272-3911. The examiner can normally be reached Mon - Fri, 9:30 - 5:30 EST.
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/KEITH R. WILLIAMS/Examiner, Art Unit 1663
/Amjad Abraham/SPE, Art Unit 1663
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