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 .
The Amendment filed August 22, 2025 has been entered. Claims 1-11 are pending in this application and examined herein.
Drawings
The drawings received on August 22, 2025 (1 sheet) are accepted, and will substitute for Fig. 89 as originally filed.
Rejections -- 35 U.S.C. 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.
Claims 1-11 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1, 7, 8 and 9 identify various plants both by their common name and by
recitation of an individual species or variety. It is unclear whether the scope of the
claimed method includes all plants generally known by the common names recited, or
only those of the recited species or varieties. Claims dependent upon any of those claims, either directly or indirectly, are likewise rejected under this statute.
Response to Arguments
In a response filed August 22, 2025, Applicant has amended several claims; those amendments correct typographical errors and overcome a previous rejection of claim 8 under 35 USC 112. Applicant asserts that the claims as amended do not lead to any ambiguity because the recited species and variety names directly correspond to the common names recited in the claims. The examiner respectfully disagrees. For instance, claim 1 recites “kale (Brassica oleracea Acephala group)”. However, Brassica oleracea Acephala group includes collard greens as well as kale, and therefore the designation in the claim is ambiguous on its face. Further, the identification of this plant is inconsistent throughout the claims; claims 1 and 7 recite “kale (Brassica oleracea Acephala group)”, whereas claims 8 and 9 recite “kale (Brassica oleracea var. Acephala group)”.
Applicant asserts that a Wikipedia search and/or the Royal Horticultural Society website would indicate a correspondence between the common names and the names in Linnaean notation recited in the claims. However, Applicant points to no specific link to any website, nor has Applicant provided any documents from those websites or elsewhere that would tend to validate Applicant’s assertions.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GEORGE WYSZOMIERSKI whose telephone number is (571) 272-1252. The examiner can normally be reached on Monday thru Friday from 8:30 am to 5:00 pm Eastern time.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Keith Hendricks, can be reached on 571-272-1401. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GEORGE WYSZOMIERSKI/ Primary Examiner, Art Unit 1733 September 25, 2025
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