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 .
Amendment
Claim 1-3 are pending.
Claims 4-20 are cancelled.
Claims 1 and 3 are amended.
The current claim set on January 14, 2026 is non-compliant as applicant has not labeled claim 1 as “currently amended”.
Response to Arguments
Applicant's arguments filed on January 14, 2026, have been fully considered but they are not persuasive.
As an initial point, Applicant alleges that claims 2-3 were not rejected.
This is incorrect. Claim 1 was drawn to the seed and claims 2 and 3 where the plant grown from that seed. The examiner put the applicant on notice that they were all considered together in two places seen below.
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112b and 112d rejections are withdrawn due to applicant’s amendment.
With respect to applicant’s arguments that the Weiner PI lines 298096 and 423140 are not obligate sexual plants because applicant believes the analysis in Weiner is not definitive. Specifically, applicant asserts that only using flowcytometry and not growouts cannot confirm or determine reproduction and that the conclusion of Weiner is incorrect.
Examiner notes at the outset that applicant’s argument is not of any probative value as attorney arguments cannot take place of evidence. Arguments presented by the applicant cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965) and In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984).
In this case, applicant has questioned Weiner’s findings, however, has not presented the office with actual evidence that the determination of Weiner was flawed.
The fact is that Weiner’s clearly labels that the lines reproducing through sexual means vs. asexual means and clearly labels the accessions as obligate sexual in behavior. The two accessions in Weiner (PI298096 and PI423140) are available at the USDA GRIN database and applicant could analyze the actual accessions and provide actual evidence to rebut Weiner.
Applicant is reminded that the office needs only to make a prima facie case of anticipation. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). In this case, both the instant application and the prior art reference bluegrass that is sexual obligate. The office has met there burden, applicant must rebut this with evidence.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Weiners et al. (Characterization of a USDA Bluegrass (Poa Pratensis L.) core collection for reproductive mode and DNA content by flow cytometry..
Regarding claim 1-3, Weiners teaches that it is well known in the art that sexual obligate accessions of Kentucky bluegrass (seed/plant) were known and housed in the USDA core collection if Kentucky bluegrass accessions. (See abstract – specifically line 8 and table 1 and the last paragraph of page 1533 and first paragraph of page 1534).
Conclusion
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 AMJAD A ABRAHAM whose telephone number is (571)270-7058. The examiner can normally be reached Mon-Friday 830 AM to 500 PM.
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 A Abraham can be reached at 571-270-7058. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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AMJAD A. ABRAHAM
SPE AU 1663
Art Unit 1663
/Amjad Abraham/SPE, Art Unit 1663