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 .
Claim Status
Claims 1, 3-4, 6-9, 11-14 & 16-18 are under examination on the merits.
Claims 2, 5, 10 & 15 are cancelled.
Priority
Claims 1, 3-4, 6-9, 11-14 & 16-18 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The previous objection to the specification is withdrawn in view of Applicant’s amendments to the specification.
The previous objection to claim 14 is withdrawn in view of Applicant’s amendments to the claim.
The previous rejection of claim 10 under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form is withdrawn in view of Applicant’s cancellation of the claim.
The previous rejection of claims 1, 3-4 & 14-15 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite is withdrawn in view of Applicant’s amendments to the claims.
The previous rejection of claim 15 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite is withdrawn in view of Applicant’s cancellation of the claim.
The previous rejection of claim 15 under 35 U.S.C. 101 because the claimed invention does/do not fall within at least one of the four categories of patent eligible subject matter is withdrawn in view of Applicant’s cancellation of the claim.
The previous rejection of claim 15 under 35 U.S.C. 102(a)(1) as being anticipated by Joliffe is withdrawn in view of Applicant’s cancellation of the claim.
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 11-12 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.
The rejection is repeated for the reasons of record as set forth in the Office action mailed 26 June 2025, as applied to claims 11-12. Applicant’s arguments filed 9 September 2025 have been fully considered but they are not persuasive.
Both claims 11 & 12 are drawn to use of a male-sterile plant as a ‘male pool’ parent. The claim scope appears to be drawn to cross-pollination methodology, but biologically a male sterile plant would be incapable of functioning as a male parent (representing the ‘male pool’) in a hybrid cross.
Biologically, if you have two flowering plants with no male plant (i.e. pollen donor) involved, cross-pollination does not occur and no hybrid progeny can be produced. While techniques such as protoplast fusion and other lab-based methods of asexually merging gametes in plants are possible, it does not appear Applicant’s invention is drawn to such non-traditional breeding approaches. Thus, it is unclear what is intended by Applicant’s claim statements referencing male or female ‘pools’ in their methodology, which as written, potentially could encompass formation of hybrid plants in absence of a pollen donor or conventional sexual reproduction.
It is unclear what types of plants, male or female, are encompassed by Applicant in these two claims and how progeny is to be produced. This is due to the ambiguity created by the seemingly conflicting reproductive status required of the male parent plant in claims 11 & 12. As such, one would not be able to clearly ascertain the metes and bounds of such claims or how to avoid infringement.
Because of this indefiniteness, claims 11 & 12 are rejected.
Response to Arguments
Applicant remarks that Examiners position of indefiniteness has not been established because ‘male pool’ and ‘male sterile’ are defined in their specification, and thus there is no issue of uncertainty regarding the apparent designation of a male sterile plant (i.e. lacking functional male anthers/pollen) as a ‘male pool’ parent.
Regarding the argument of indefiniteness of what constitutes ‘male pool’, ‘female pool’, or ‘male sterile’ as claimed;
Applicant cites clear definitions are provided for “male sterile”, “male pool”, and “female pool” at [0165-0167], [0198], and [0175] respectively. While the amended specification does not provide paragraph numbers as referenced, it appears Applicant may be referring to the definitions provided on p.43, par.2 (“male pool” and “female pool”) and also on p.26, par.1 (“male sterile”).
Applicant is reminded that the PGPub is not part of the file folder and all references to the specification should be the specification as filed and not to documents not part of the file folder.
Applicant urges the ‘male pool’ can include male sterile plants by pointing to definitions previously provided in the specification [Remarks, p.8, par.1].
Looking to the specification, Applicant states the ‘male pool’ indicates germplasm typically used as male plants and providing male gametes in crosses. They also state the designation of ‘male pool’ rests on the suitability of such germplasm to be used as a male parent [Specification, p.43, l.16-23].
Thus their specification indicates the ‘male pool’ provides plants that contribute male gametes (i.e. pollen) in crosses.
Applicant further states ‘male sterile’ has its ordinary meaning of a plant which does not produce functional male gametes [Specification, p.26, l.4-7]. This indicates ‘male sterile’ plants do not, or cannot, contribute male gametes (i.e. pollen) in crosses.
This is not found persuasive because these definitions conflict. This makes the intended limitations of Applicant’s heterotic groups, and/or methodology, unclear. Their specification clearly indicates ‘male pool’ plants biologically function as male parents and produce pollen to contribute paternal gametes. It is also clear that male sterile plants inherently do not produce pollen and cannot contribute paternal gametes in a cross.
In response to the uncertainty introduced by this contradiction, Applicant argues the male pool is an ‘entirety of potential plants’ [Remarks, p.8, par.1] – this may be what is intended, but it is not what is recited in the claims.
Claims specifically recite ‘male pool’ and ‘female pool’ and ‘male sterile’ plants; all terms of which are defined in the specification as having certain biological attributes, which align with their common meaning in the art (i.e. ‘male’ parents are necessarily male fertile). Because Applicant’s claim language contradicts the definitions supplied and contradicts the biology at issue, it becomes unclear what is meant, or potentially what methods are being claimed by Applicant.
Applicant is advised to amend claims to modify language surrounding ‘male pool’ and ‘female pool’ to more clearly reflect their apparently arbitrary designation as heterotic groups (i.e. an ‘entirety of potential plants’). Applicant, whenever possible, should avoid comingling language implying reproductive function. Claim language describing heterotic groups/pools should not conflict with definitions or the biological limitations of ‘male sterile’ germplasm. Non-contradictory designations for the particular heterotic groups recited would add clarity to the method and germplasm being claimed.
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 & 16-18 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].
Due to Applicant’s amendment of the claims, the rejection is modified from that set forth in the Office Action mailed 26 June 2025, as applied to claims 1, 3-4, 9, 11-14 & 16-18. Applicant’s arguments filed 25 September 2025 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.
Beck describes standard seed industry protocols of producing hybrid maize using rows of detasseled, or 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.
The term ‘tester’ as used in hybrid crop production derives from the proliferation of the term in maize breeding during the 20th century, as an indicator of whatever male variety was used in the cross that newly developed experimental (detasseled) lines were being ‘tested’ for use with. Beck also describes more modern developments in pollen control used in hybrid seed production, including use of cytoplasmic factors, chemical hybridization agents, and genetic mechanisms of male sterility to control pollen and generate seed against specific ‘testers’ [p.32-38, ‘Pollen Control’].
Beck does not describe use of such systems in wheat or other crops where floral morphology would prevent mechanical detasseling. Such crops require other means of generating and identifying female plants or separating functionally male-sterile (i.e. female) from male-fertile seed.
Gordon teaches such a system in wheat via methods of using blue aleurone and ms1 genes in wheat, coupled with genetic ‘restorers’ to create hybrid cereal seed. They describe a method of sorting male fertile from male-sterile seed using seed coat color markers [p.4, par.1]. They specify that the color marker is 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’.
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.
One of ordinary skill in the art would have been motivated to combine these disclosures to more efficiently and economically produce large amounts of hybrid seed, using multiple experimental ‘female’ wheat lines. They would want to do this to assess combining ability and breeding value of different wheat testers.
Gordon directly points to why one would be motivated to combine, because the BLA system has distinct advantage over use of chemical hybridization agents (CHAs) & cytoplasmic male sterility systems (CMS). Gordon proposes use of the BLA system in absence of CHA & CMS to improve wheat hybridization, as in claim 13 of the instant application [p.1, par.3; p.2, par.3].
Further, it is known in the art that using orderly rows of ‘female’ experimental lines in combination with fertile male testers is a preferred method of making test-crosses in maize, as in Beck. 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 this method is in maize does not limit its 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.
Because of this obviousness in view of prior art, claims 1, 3-4, 9, 11-14 & 16-18 are rejected.
Response to Arguments
Applicant urges that because the primary reference of Beck is drawn to methods of hybrid seed production in maize, it is patentably distinct from methods of hybrid seed production in wheat [Remarks, p.9, par.5]. They go on to cite a number of biological differences between maize and wheat as grounds for such argument.
This is not found persuasive because the prior art is referenced because it relates to methods of hybrid seed production, not maize per se. The commonality is hybrid seed production methodology. Moreover, the method claimed by Applicant of planting adjacent ‘female’ and ‘male’ rows to control pollination is one that directly mirrors widespread seed production practices in maize. Applicant directly cites the relevance of such hybrid maize literature, directed to use of testers and associated methods, in their background section [Specification, p.40, par.3-4].
Applicant urges that because maize utilizes mechanical detasseling or cytoplasmic male sterility to achieve functionally ‘female rows’ that the concept of using such ‘female rows’ does not apply to one interested in producing hybrid wheat. They argue that because wheat does not have tassels such hybrid seed production references are unsuitable when considering the obviousness of the proposed hybrid seed production method.
However, this is not found to be persuasive as the prior art is not drawn to detasseling per se. The relevant teaching of Beck is how one would efficiently generate hybrid seed using effectively ‘female’ rows in a system amenable to linear planting arrangements, common to field equipment, in a production field or research nursery.
This is the male/female row methodology claimed by Applicant, simply substituting the BLA system of Gordon to effectively generate ‘female’ (i.e. male sterile) rows in wheat. Gordon teaches this application of BLA, generally, and their patent is clearly titled ‘Production of Hybrid Cereal Crops’. Applicant does not invent a new way of producing female plants distinct from Gordon’s system, or apply the BLA system in a way unique from the described ‘female row’ maize system – they merely model the well-known maize system of Beck and use the well-known male sterility system from Gordon to replicate the detasseling or use of CMS which renders maize rows ‘female’.
One would be motivated to use Beck’s method (i.e. maize hybrid seed production) in wheat because it would greatly increase efficiency, profitability, and/or the technical feasibility of producing wheat seed of defined pedigree on a large scale. The main challenge to doing so would be the ability to generate ‘female’ rows. This is taught by Gordon, directly as a method for hybrid wheat production. One would be motivated to combine these, with reasonable expectation of success in replicating the existing maize system in wheat.
Applicant urges that because maize is diploid and wheat is hexaploid (i.e. they have different chromosome numbers) such genetic systems of producing sterile maize cannot be easily transferred to wheat [Remarks, p.9, par.5].
This is not found persuasive because wheat is an amphipolyploid which reproductively behaves as a diploid. Because hexaploid wheat reproduces similar to a diploid, systems from diploid crops would have potential cross-applicability. Applicant is not proposing the direct use of maize molecular systems to wheat genomes, nor is that the basis of the previous rejection.
Again, Applicant is arguing the specific molecular or cytological differences between maize and wheat cells rather than addressing the obviousness of the claimed hybrid seed production system.
Applicant urges there would be no motivation to cross-apply the teachings of Beck and Gordon [p.10, par.2-3]. Applicant also argues the previous 103 rejection is also improper in this respect due to impermissible hindsight.
This is not found persuasive because both references clearly outline challenges of hybrid seed production while suggesting complementary aspects to overcome said challenges. This includes spatial considerations during cross-pollination and the need to have functionally female plants along with defined pollen donors to generate specific pedigrees (i.e. limiting pollen contamination).
Gordon describes challenges that would motivate someone to use the BLA system to generate functionally female plants and avoid using gametocides or other laborious methods in wheat [Background Art, par.1-2]. Beck describes the use of distinct male and female row planting patterns for producing hybrid seed in maize, but indicates need for large field distances, detasseling or other means of preventing unwanted male pollen contamination [p.13, par.2 – p.19, par.1].
One would be highly motivated to cross-apply these methods in emulating the maize hybrid production system, as disclosures teach complementary aspects of (a) ability to have ‘female rows’ and (b) efficient scaling of the crossing process. Gordon’s disclosure provides the genetic mechanisms to meet the requirements of, and solve attendant pollen contamination issues of Beck (i.e. system of creating ‘female rows’). Similarly, Beck’s disclosure provides the field-scale application and increased scaling of Gordon’s invention, but modeled after successful commercial scale hybrid maize systems (i.e. systems of cost-efficient scaling).
Regarding impermissible hindsight; this requires that the invention would not otherwise have been envisioned absent the disclosure of the Applicant. However, linear planting of functionally male and functionally female rows in various patterns to facilitate controlled pollination is well-established as routine in plant breeding and seed production, particularly with respect to hybrid maize or row crops.
Such systems can be ‘envisioned’ simply by taking a midsummer drive through any agricultural region where seed corn is being produced and witnessing acres of detasseled female corn rows. Even non-experts are commonly aware of this process, as each Summer thousands of high school students in rural areas are routinely employed in detasseling crews across the United States, generating ‘female rows’ for hybrid seed production.
This would be plainly envisioned by anyone who had seen or had such a field described to them, when thinking of a method to efficiently produce hybrid seed in their own crop of interest. Applicant’s system clearly models hybrid seed production methods from maize, that have now been in use globally for over a century. These are routine, highly visible, and well-known to those skilled in the art of plant breeding and/or farming generally.
As such, the argument that the claimed method is only conceivable via impermissible hindsight is not persuasive. One would only need to be aware of hybrid corn production systems and then consider substitute ways of generating ‘female’ plants in their crop of interest. For someone working on wheat, the BLA system is just such a well-known substitute way of generating ‘female’ plants.
Further, Applicant urges that Gordon does not cure the deficiencies of Beck, thus providing motivation to use BLA in the female/male row system, because Gordon does not teach crossing a male sterile plant in the BLA system to ‘a tester’. They argue Gordon does not disclose crossing a male sterile plant to a fertile ‘male pool’ plant.
This argument is not found persuasive because Gordon’s disclosure is directly related to the production of hybrid cereal crops, as indicated by its title. It is known in the art that hybrid seed is produced by crossing to various ‘testers’, which are simply breeding lines from a different heterotic group that one wishes to assess for combining ability or genetic effects. Applicant admits this commonly known fact in the background of their specification [Specification, p.1, par.3].
Applicant does not provide any distinct description of ‘tester’ indicating a meaning different than that commonly understood in plant breeding [Specification, p.40, par.4]. The only indication provided by Applicant regarding ‘tester’ is that it constitutes a plant other than the male-sterile line (i.e. any male pollen donor). Applicant argues a ‘male pool’ plant is expansive, including ‘an entirety of potential plants’ and defines a male pool plant as one which functions as the male parent (i.e. pollen donor) [Remarks, p.8, par.1].
This indicates that Applicant’s claims of crossing to ‘a tester’ simply mean the crossing of a male sterile wheat plant to potentially any other breeding line which is male fertile. This indicates crossing of two genetically distinct plants. This inherently is what defines a hybrid, and is thus directly taught by Gordon. This also solves a deficiency of Beck, in that it provides ‘female rows’ in wheat which cannot be mechanically detasseled.
One of ordinary skill in the art would be motivated to combine the male/female row system taught by Beck to one utilizing BLA to generate ‘female’ wheat rows described in Gordon in order to efficiently generate large amounts of hybrid wheat seed and overcome the inability to detassel wheat.
Applicant urges they describe unexpected results by pointing to; high seed yield despite low anther extrusion, seed production despite a gap in the nick (i.e. flowering synchronization), seed production with the “use of male sterile testers”, and seed production with a reduced number of male plants [p.10, par.4]. Applicant makes arbitrary references to ‘high yield’, ‘satisfactory yield’, ‘good seed production’, and ‘stable seed production’ observed when flowering was not ‘completely synchronized’ [Remarks, p.10, par.4].
This is not found persuasive because these are all variable traits which are routinely characterized and optimized in commercial hybrid seed production that can be influenced by genetic, environmental, and/or field management effects. Moreover, there is no suggestion or teaching in the art that ‘completely synchronized’ flowering is an absolute requirement to obtain seed – it is known in the art that a more synchronized flowering between parents can result in increased yields, but generally differences in parental flowering (i.e. ‘nick’ of parents) is simply one variable that is routinely optimized in seed production fields.
Gaps in flowering time, amount of pollen shed (i.e. anther extrusion or other related traits), use of specific testers (i.e. parental inbreds or lines), and optimizing stand of males in production fields (i.e. dealing with reduced number of male plants) are all common factors that can occur and affect the total seed yield of a production site or research nursery [Beck, p.5, par.1; p.20, par.3 – p.24; Tables 10-12]. Variation in any or all of these variables is not unexpected, but common.
Regarding pollen shed; Beck describes strategies used by hybrid seed producers including adjustment to denser plantings (i.e. ‘compact’ planting) and specifically notes how such management practices can affect pollen shed of males, thereby impacting yields [Beck, p.19, par.3]. They teach that timing of flowering and pollen shed are heavily environmentally variable and that as many as 50 locations may need to be examined to accurately predict the impact of flowering characteristics on seed yield [Beck, p.5, par.1]. They also teach a variety of ways that hybrid seed producers commonly ‘troubleshoot’ or optimize problems associated with pollen shed [starting p.21, Methods (a)-(k)]. It is clear that seed is produced even when parental inbreds are not ‘completely synchronized’ and that seed producers routinely optimize conditions to attempt to manipulate flowering times.
Regarding use of ‘testers’, specifically male sterile lines, to produce seed; it is unclear why it would be unexpected for a male sterile plant, functionally acting as the female parent, to produce seed. Male sterile plants do not form pollen, but obviously retain their female reproductive capacity. If they did not retain female reproductive capability they would not exist except as vegetatively propagated plants (i.e. no male or female reproductive capability makes a plant sexually sterile and unable to form seed). This would clearly be self-defeating in a grain crop. Applicant, whose research is directed to using male sterile plants as female parents, does not clarify why it would be unexpected results for a male sterile, female fertile ‘tester’ to be capable of forming seeds and generating ‘satisfactory yield’ [Response, p.10, par.5].
Additionally, and in a more general sense, it is known that specific lines used in a pedigree have large influence on total yield of hybrid seed. Beck specifically teaches that the pollen shedding characteristics of lines is variable and important to yield [p.5, par.1]. They also point to the genetic variability of female parent lines as having impact on yield. Thus, the yield of each potential hybrid seed production is influenced by the specific parental pedigree (i.e. parents or testers involved) as well as environment (see above). Optimizing seed production parameters for a given pedigree is routine.
Regarding density of male planting (i.e. stand count) and observed seed yield; Beck describes the variability commonly seen in hybrid seed production and its resulting effects [Beck, p.10, par.3]. It is obvious that a low stand of male plants can occur due to poor quality seed, weed pressure, or other season-specific agronomic problems that may occur in a field and damage plants. This is common, and somewhat expected, in field research. It is also obvious that a lower number of male plants may potentially lower seed yield.
However, achieving a satisfactory seed yield despite low male populations would not reasonably be considered unexpected results by one skilled in the art, barring evidence showing comparison to a ‘normal’ density. Without scientifically grounded comparison, the anecdotal observation that seed yield was higher than the grower expected is merely an arbitrary comment based on one observer’s inherently biased visual assessment (i.e. not a scientific demonstration of actual difference). This is particularly true since Applicant’s arguments are directed to a variety of indefinite and arbitrary descriptions of yield as reason of ‘unexpected results’ (i.e. ‘high yield’, ‘satisfactory yield’, ‘good seed production’, ‘stable seed production’).
One would need to provide an assessment of the effect of population densities on seed yield to determine whether such results were truly unexpected or if that is simply the arbitrary opinion of the observer reporting results. Such ‘density trials’ are common in agricultural production research. Absent that evidence, such an argument based on opinion is unconvincing.
Moreover, Applicant’s rejected claims are not directed to, nor do they recite, any of these traits and/or common variables being presented as argument for unexpected results. As such, Applicant is not actually addressing the claim language at issue and their argument is moot with respect to the current 103 rejection.
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 26 June 2025, as applied to claims 6-8. Applicant’s arguments filed 25 September 2025 have been considered but they are not persuasive.
Claims are drawn to planting density & arrangements to be used when generating hybrid wheat using 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 p.7, par.3].
Beck & Gordon do not teach row or plant spacing relevant to seed production in wheat, when emulating the system described by Beck in maize.
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 typically utilized by wheat breeders is provided by their 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, par.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 make testcross seed. This is because one would recognize that, generally, crops are most successfully grown within known planting ranges, except in rare or exceptional circumstances that would suggest otherwise.
Because of this obviousness in view of prior art, claims 6-8 are rejected.
Response to Arguments
Applicant urges non-obviousness with respect to claim 1, and response to such arguments as to why they are unconvincing are provided above [See p.10, ‘Response to Arguments’].
Applicant urges that dependent claims 6-8, directed to the more particular arrangement of wheat fields, are non-obvious because there is lack of motivation to combine references as argued regarding Beck & Gordon. Applicant is silent as to why, specifically, both Fischer and Haghighattalab whose disclosures detail wheat planting parameters would be non-obvious to combine with the system described by Beck [Response, p.11 par.2]. Applicant relies on arguments directed to claim 1 as basis for refuting claims 6-8.
This is not found persuasive because Beck clearly teaches the planting of crops in rows when producing hybrid seed, and Fischer & Haghighattalab simply describe common planting parameters and techniques used in wheat cultivation. Absent evidence to the contrary, it is unclear why one would not use guidance relevant to wheat agronomy, wheat seeding rates, or wheat planting arrangements when clearly working with wheat. It is also unpersuasive to argue that one would not be motivated to use agronomic recommendations for growing wheat, when growing wheat.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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.
Contact Information
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
/Anne Kubelik/Primary Examiner, Art Unit 1663