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 .
Election/Restrictions
Applicant's election with traverse of Group I in the reply filed on 16 October 2025 is acknowledged. The traversal is on the ground(s) that Lobos-Sujo does not teach or suggest any clear mapping to Rfo at A10. This is not found persuasive, because they state that high levels of similarity were found consistently with the A10 chromosome. See screen capture below.
The requirement is still deemed proper and is therefore made FINAL.
Claims 17-25 and 30-31 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 16 October 2025.
PNG
media_image1.png
846
752
media_image1.png
Greyscale
Claim Status
Claims 1-27 and 30-31 are pending.
Claims 17-25 and 30-31 are withdrawn from consideration as being drawn to an unelected invention.
Claims 1-16 and 26-27 are examined on the merits.
Claim Objections
Claims 2-13 and 15-16 are objected to because of the following informalities: Claim 1 recites, “Brassica napus,” yet its dependent claims more generically recite, “Brassica.” To ensure clear antecedent basis, the dependent claims should also recite, “Brassica napus.” Appropriate correction is required.
Claims 15-16 are objected to because of the following informalities: The claims recite, “technically induced mutant.” The claims should instead recite either, “technically-induced mutation” or “technically-induced mutant allele.” The use of the word “mutant” as a noun is typically reserved for referring to cells/organisms comprising mutations. Appropriate correction is required.
Claim 16 is objected to because of the following informalities: The comma after “tolerance” in line 2 of the claim should be removed. When a list only has two items in it, a comma should not be used preceding the conjunction that separates the two items of the list. Appropriate correction is required.
Claim Rejections - 35 USC § 112
Indefiniteness
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 2, 5, and 15-16 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 pre-AIA the applicant regards as the invention.
Claim 2 recites, “wherein the Ogura restorer is present at the end of chromosome N10.” It is unclear how close to the last base of the chromosome the Ogura restorer must be to be deemed “at the end of chromosome N10.” As such the metes and bounds of the claim cannot be determined.
Claim 5 recites, “wherein said Ogura restorer comprises a Raphanus chromosome fragment between position 8,330,119 and 10,655,049 of the Raphanus chromosome or a part thereof.” Because, neither the specific chromosome, species, or cultivar/variety/line of the Raphanus organism from which the fragment is obtained is specified in the claim, the recited number are arbitrary and do not clearly limit the claim. Moreover, the issue is worsened when it appears that that the recites numbering can be applied to the parts of chromosomes. As such, the metes and bounds of the claims cannot be determined.
Claims 15-16 require a “technically induced mutant.” The specification states that these include mutations made by many methods including random mutagenesis processes such as EMS mutagenesis or UV irradiation (see paragraph spanning pages 7-8). It is unclear how many of the mutations generated by such processes can be discriminated from naturally induced mutations such as UV induced mutations that occur in nature or mutations made during DNA replication. Given that products are being claimed, it is unclear how the metes and bounds of the claims can be determined given the inability to discriminate technically induced mutations from naturally induced mutations.
Deposit Rejection
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—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.
Claim 7 is 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 claims contain 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.
Since the seed and/or plant claimed is essential to the claimed invention, it must be obtainable by a reproducible method set forth in the specification or otherwise be readily available to the public. If a seed, or seed of the claimed plant is not so obtainable or available, a deposit thereof may satisfy the requirements of 35 U.S.C. 112. The specification does not disclose a reproducible process to obtain the exact same seed in each occurrence and it is not apparent if such a seed is readily available to the public. If the deposit of the seed is made under the terms of the Budapest Treaty, then an affidavit or declaration by the Applicant, or a statement by an attorney of record over his or her signature and registration number, stating the seed have been deposited under the Budapest Treaty and that the seed will be irrevocably, and without restriction or condition, released to the public upon the issuance of a patent would satisfy the deposit requirement made herein. A minimum deposit of 2500 seeds is considered sufficient in the ordinary case to assure availability through the period for which a deposit must be maintained.
If the deposit has not been made under the Budapest Treaty, then in order to certify that the deposit meets the criteria set forth in 37 CFR 1.801-1.809, Applicant may provide assurance of compliance by an affidavit or declaration, or by a statement by an attorney of record over his or her signature and registration number showing that
(a) during the pendency of the application, access to the invention will be afforded to the Commissioner upon request;
(b) all restrictions upon availability to the public will be irrevocably removed upon granting of the patent;
(c) the deposit will be maintained in a public depository for a period of 30 years or 5 years after the last request or for the enforceable life of the patent, whichever is longer;
(d) the viability of the biological material at the time of deposit will be tested (see 37 CFR 1.807); and
(e) the deposit will be replaced if it should ever become unviable.
Applicant has NOT indicated that Applicant intends to deposit the seeds at the ATCC in accordance with 37 CFR 1.801-1.809. Accordingly, Applicant needs to provide a signed statement indicating compliance with 37 CFR 1.801-1.809 indicating that all restrictions will be irrevocably be removed upon issuance of a patent, the ATCC Accession No. and evidence of deposit to overcome this rejection.
Claim Rejections - 35 USC § 102/103
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.
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.
Claim(s) 1-15 and 26-27 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Lubos-Sujo 2018 (Dissertation: “Characterization and improvement of Ogu-INRA CMS Brassica napus L. fertility restorers.”) as evidenced by Asselin 2012 (Thesis: “Seed Quality Imporvement in the ogu-INRA CMS System in Oilseed Rape (Brassica napus L.)”).
Lubos-Sujo teaches that a mapping study of the location of the Rfo restorer genes found the trait linked to sites in both chromosome C09 (N19) and A10 (N10) (p. 54). They teach that plant material used in the study included the restorer line (UM5100) which originated from R2000 and the restorer locus was introgressed into SOSR cultivar Castor 2010.
Asselin provides additional evidence leading credence to the fact that plant in population of Lubos-Sujo does in fact contain an Ogura restorer at chromosome A10 (N10). They teach that the Rfo gene (Raphanus restorer gene) was integrated via interspecific hybridization between Brassica napus and Raphanus sativus. They further teach that the restorer locus in Brassica napus, one being in the R2000 restorer line, (reported to be on C09(N19) is unstable due to homeologous translocations between chromosome C09(N19) with chromosomes A10 (N10) and A9 (N9) (p. 37-38).
Even if the population of Lubos-Sujo does not comprise a plant having the Rfo gene locus having the exact same borders of introgression as the instantly deposited lines, the same causative gene would have been present in the same linkage group and thus would have been an obvious variation of the claimed subject matter absent and evidence to the contrary.
Further standard breeding methods being practiced would lead to the production of F1 hybrids and plants being either homozyous or heterozygous for the restorer gene.
As such, claims 1-15 and 26-27 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Lubos-Sujo as evidenced by Asselin.
Claim Rejections - 35 USC § 103
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.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lubos-Sujo 2018 (Dissertation: “Characterization and improvement of Ogu-INRA CMS Brassica napus L. fertility restorers.”) as evidenced by Asselin 2012 (Thesis: “Seed Quality Imporvement in the ogu-INRA CMS System in Oilseed Rape (Brassica napus L.)”) as applied to claims 1-15 and 26-27 above, and further in view of Wu et al 2020 (Plant Biotechnology Journal 18: p.1857-1859).
The claims are drawn to the plant of claim 15 wherein the technically induced mutation or transgene confers herbicide tolerance.
Lubos-Sujo as evidenced by Asselin teaches all the limitations of claim 15.
Lubos-Sujo as evidenced by Asselin does not teach wherein the technically induced mutation or transgene confers herbicide tolerance.
Wu et al teach using CRISPR -Cas9 to make targeted mutations in the ALS gene of Brassica napus to confer herbicide tolerance.
At the time of filing, it would have been prima facie obvious for a person of ordinary skill in the art to mutate the ALS gene using the method Wu et al to make herbicide tolerant canola. A person of ordinary skill in the art would have been motivated to combine the teachings as having a herbicide tolerance trait would assist in weed control during the cultivation of the plants. As such, claim 16 is rejected as being obvious over Lubos-Sujo as evidenced by Asselin further in view of Wu et al.
Relevant Art
Udall et al 2005 (Genetics 169:2 p.967-979) teach about common chromosomal rearrangements between homeologous chromosomes on Brassica napus including between chromosomes C09 (N19) and A10 (N10) (see entire document including Figure 2, p. 972).
Wu Z. December 2020 (Dissertation: “Mechanism and Utilization of Alloplasmic Male-Sterile Lines in Brassica Juncea.” Huazhong Agricultural University; Wuhan, China) explicitly disclose producing a Brassica napus line called R206 having an Rfo restorer present on chromosome A10 (N10). This was not applied as prior art, because it is only listed as December 2020 and the instant case has a priority date of 21 December 2020. If evidence can be found that the Wu dissertation was publicly available prior to 21 December 2020, it would clearly anticipate the instant claims.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R KEOGH whose telephone number is (571)272-2960. The examiner can normally be reached M-Th 7-4:30, half day on Fridays.
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 on 571-270-7058. 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.
/MATTHEW R KEOGH/Primary Examiner, Art Unit 1663
Request for Information under 37 CFR § 1.105
Applicant and the assignee of this application are required under 37 CFR § 1.105 to provide the following information that the examiner has determined is reasonably necessary to the examination of this application.
This request is being made for the following reasons:
Applicant is claiming Brassica napus plants having an Ogura restorer on chromosome N10, but the instant specification is silent about the nature of the starting materials used. The requested information is required to make a meaningful and complete search of the prior art.
In response to this requirement, if known, please provide answers to each of the following interrogatories eliciting factual information:
(i) Please supply information regarding the origin of Rfo-N10.
a) Example 1 of the instant specification states the following:
PNG
media_image2.png
90
738
media_image2.png
Greyscale
What lines were used to generate the “New oilseed rape restorer lines” referenced in Example 1? Please provide all public names associated with these line(s).
b) Were any of the Brassica lines comprising the Rfo-N10 sold or publicly available prior to 21 December 2025, or shown to be products nature, regardless of whether they were reported to comprise a restorer previously?
c) Were any of the Brassica lines comprising the Rfo-N10 known to be related to restorer line R2000? If so, please explain the relationship(s).
d) Are there any patent applications or patents in which plants comprising an Rfo-N10 restorer or associated methods are claimed?
If Applicant views any or all of the above requested information as a Trade Secret, then Applicant should follow the guidance of MPEP § 724.02 when submitting the requested information.
In responding to those requirements that require copies of documents, where the document is a bound text or a single article over 50 pages, the requirement may be met by providing copies of those pages that provide the particular subject matter indicated in the requirement, or where such subject matter is not indicated, the subject matter found in applicant’s disclosure. Please indicate where the relevant information can be found.
The fee and certification requirements of 37 CFR § 1.97 are waived for those documents submitted in reply to this requirement. This waiver extends only to those documents within the scope of this requirement under 37 CFR § 1.105 that are included in the applicant’s first complete communication responding to this requirement. Any supplemental replies subsequent to the first communication responding to this requirement and any information disclosures beyond the scope of this requirement under 37 CFR § 1.105 are subject to the fee and certification requirements of 37 CFR § 1.97 if submitted subsequent to a first Office action on the merits.
The applicant is reminded that the reply to this requirement must be made with candor and good faith under 37 CFR § 1.56. Where the applicant does not have or cannot readily obtain an item of required information, a statement that the item is unknown or cannot be readily obtained may be accepted as a complete reply to the requirement for that item.
This requirement is subject to the provisions of 37 CFR 1.134, 1.135 and 1.136, and has a shortened statutory period for reply to this action of THREE (3) MONTHS from the mailing date of this Office action. EXTENSIONS OF THIS TIME PERIOD MAY BE GRANTED UNDER 37 CFR 1.136(a).
9. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Matthew R. Keogh whose telephone number is 571-272-2960. The examiner can normally be reached on M-Th 7-4:30, half day on Fridays.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amjad Abraham, can be reached on (571) 270-7058 respectively. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
/Amjad Abraham/ SPE, Art Unit 1663