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 .
Response to Restriction Requirements
Applicant's election of Group II, claims 6, 8, 11, 20, 22-23, 25-27, 29, 32, 34, 36, 38, 41, 43, 58, and 63 in the reply filed on 03/04/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Claims 1, 3, 5, 6, 8, 11, 20, 22-23, 25-27, 29, 32, 34, 36, 38, 41, 43, 46-50, 52-58, and 63 are pending.
Claims 1, 3, 5, 46-50 and 52-57 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 03/04/2026.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Thus claims 6, 8, 11, 20, 22-23, 25-27, 29, 32, 34, 36, 38, 41, 43, 58, and 63 of elected invention Group II are examined in this office action.
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code for example in page 4, line 5, and page 19, line 5. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
Claim Objections
Claims 6 and 38 are objected to because of the following informalities:
In claim 6 sub steps a) to d), applicants are advise to add a space between he term a), b), c), d) and the subsequence word.
In claim 38 line 2, applicant recite the term “content2” which is advised to change to “content” since the number 2 after content looks incorrect.
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.
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 6, 8, 11, 20, 22-23, 25-27, 29, 32, 34, 36, 38, 41, 43, 58, and 63 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. All dependent claims are included in these rejections unless they include a limitation that overcomes the deficiencies of the parent claim.
Regarding claim 6, the claim recite in step b), “applying a carrier to the collected maize pollen of step a) to obtain an amount of treated maize pollen” and in step c) it recite “placing the amount of fresh maize pollen or the amount of treated maize pollen in a sealable container” renders claim indefinite since it is not clear whether part of the collected pollen was treated or what is the connection between the step b) and c) since the first alternative of recitation of step c) (i.e. before “or”) does not require any treatment of pollen which would not require treatment of step b). Furthermore, if the method can be carried out without treatment with carrier then in this alternative method, what is the relevance of claims 20, 22-23, 25-27 and 43 that further limit the properties of carrier?
Claim 25 is indefinite for being dependent on the cancelled claim 24 because the metes and bound of the phrase “metallic powder of claim 24” cannot be determined. The claim 25 is however interpreted to be dependent on claim 23 and thus analyzed below for compact prosecution.
Claim 27 is indefinite because the claim recites “any ratio between 1:20 and 50:1”. It is unclear how to go from 1:20 to 50:1 and how 1:20 to 50:1 is a range with an upper and lower limit ? Hence, the metes and bounds of the claim are unclear.
Claim 41 recites the broad term “magnesium silicate” and further limit the scope by the term “linked” in parenthesis (…). The claim is considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 41 recite a trademark “FLORISIL ®” renders claim indefinite since a trademark doesn't structurally describe the item. Because features of a branded product can change while the brand name remains the same, using a trademark makes the claim boundaries unclear. Therefore the claim fail to distinctly point out and claim the invention. Applicant are advised to substitute trademark with generic, structural, or functional language.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 43 recites the broad recitation about 1 nanometer and about 100 micrometers, and the claim also recites is 10 micrometers which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Anticipated by Etter et al.
Claims 6, 8, 11, 20, 27, 32, 34, 36, 38 and 41 are rejected under 35 U.S.C. 102 (a)(1) and/or (a)(2) as being anticipated by Etter et al. (US Patent Pub. No.: U.S. 2019/0008144, Pub. Date: Jan. 10, 2019).
Claims are drawn to a method of storing viable maize pollen by applying a carrier and placing the maize pollen or the treated maize pollen in sealable container for at least 1 day.
Regarding claims 6 and 36, Etter et al discloses a method of storing viable maize pollen wherein the method is a novel method for increasing the overall viability and fertility of pollen (Paragraph, 0002). Etter et al. discloses their method comprise: (a) collecting an amount of fresh maize pollen from actively shedding maize plants, placing the pollen in a centrifuge tube (i.e. sealable container), which had equal ratio of silica particles added to the pollen (i.e. treated pollen with a carrier as silica particles). Etter et al. discloses after the addition of the particles each tube was mixed and placed into storage at 4oC (i.e. refrigerated environment) for 24 hours or 1 day (page 10, Paragraph 0093).
Regarding claim 8, Etter et al. discloses the control samples and sample mixtures were stored in filter capped 50 mL centrifuge tubes, the filter caps have a mesh element that allows passage of air without spilling the pollen); and (e) storing the product of step d) in a refrigerated environment (page 10, Paragraph 0095).
Regarding claim 11, Etter et al discloses collection 1.75 g or over 3 gms of fresh pollen (page 11, paragraph 0103).
Regarding claims 20 and 63, Etter et al discloses preservation of pollen in atmospheric pressure of 15-150 kPa which comprise (o.3 atm = 30 kPA and 0.6 atm=60 kPA) (page 8, paragraph 0072).
Regarding claim 27, Etter et al discloses pooled pollen was mixed at a 1:3 volume ratio with each additive from Table 1.
Regarding claims 32 and 38, the centrifuge tubes (page 10, Paragraph 0095) would have been fabricated from glass and tube would have some air oxygen content.
Regarding claim 34, Etter et al. discloses after the addition of the particles each tube was mixed and placed into storage at 4oC (i.e. refrigerated environment) for 24 hours or 1 day (page 10, Paragraph 0093).
Regarding claim 41, Etter et al. discloses solid particles useful for the invention includes activated charcoal. The function of the desired result of CO2 sequestration would have been an inherent property of using activated charcoal (page 9, paragraph 0090). Etter et al. discloses pollen was mixed with activated charcoal powder at various percentages wherein the mixed sample was stored at 5° C., in uncapped 50 mL tubes. Etter et al. discloses percent of charcoal influenced both the viability of the pollen and pollen moisture content (page 9, paragraph 0090).
Hence, Etter et al. had previously disclosed the claimed invention.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Obvious over Etter et al. and further in view of Maeda et al. and Kaiping et al.
Claims 22-23, 26 and 43 are rejected under 35 U.S.C. 103 as being unpatentable over Etter et al. and further in view of Maeda et al. (Japanese patent publication no: JPS63317039A, Publication date: 1988-12-26) (Previously presented) and further in view of Kaiping et al. ( Published: 2019, Journal: Journal of Physics: Conference Series 1347 (2019) 012121 IOP Publishing doi:10.1088/1742-6596/1347/1/012121).
Claims are drawn to a method of storing viable maize pollen by applying a carrier and placing the maize pollen or the treated maize pollen in sealable container for at least 1 day. The claims are further drawn wherein the carrier is stainless steel powder.
Regarding claim 6, Etter et al. teaches a method of storing viable maize pollen in a sealable container and storing at 4oC (i.e. refrigerated environment) for 24 hours or 1 day, see analysis above.
Regarding claims 22-23 and 25-26, it would have been obvious because the metallic powder would have been considered a design choice. Etter et al. teach that different additives were used to test for improved flowability of pollen for use in mechanical application of the pollen in a field setting at paragraph [0099]. Etter et al. states at paragraph [0068] that “Routine experimentation can be conducted in accordance with examples 4 and 5 to determine the best particle or particle blend for storage purposes”.
Maeda et al. teaches use of deoxidation agent to make vegetable or fruit fresh for example metal powder a ferrous compounds as iron (i.e. stain steel powder), ferrous oxide which absorb oxygen by reacting with oxygen and are oxygen scavengers to keep the vegetable and fruit fresh (page 2, paragraph 9).
Kaiping et al. teaches stainless steel powder of size on average of 10µm (page 3, Figure 3) which are considered of fine sized powder (page 2, paragraph 3). Therefor someone skilled in the art would find out the specific suitable size by routine experimentation to find such available fine sized powder to be useful in storing method.
According to section 2144.05 of the MPEP, “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”).
Therefore it would have been obvious before the effective date of filling of the invention from some teaching, suggestion and motivation from Etter et al. to use metallic powder for example stainless steel powder in the method of storing viable maize pollen to keep the maize pollen fresh longer as suggested by Maeda et al. that the ferrous metal powder or ferrous oxide (i.e. stainless steel powder) would keep the freshness of fruit, vegetable or flowers or the living cells such as pollens to be viable longer. Furthermore, such metal powder would have size of 10µm as such fine sized stainless steel powder were known in the art as taught by Kaiping et al.
Regarding claims 22 and 43, the claims would have been prima facie obvious over the teachings of Etter et al. who teach using an amorphous silica in page 10, Table 2 Sipernat ® 340 which has 20-micron average particle size. While Etter et al. do not teach crystalline silica, Sipernat ® 340 would have been considered a functional equivalent to the crystalline silica of instant claim 5.
Obvious over Etter et al. and further in view of Albertsen et al. and Gawthami et al.
Claims 6 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Etter et al., and further in view of Gawthami et al. (Published: 2019, Publication: International Training on In Vitro and Cryopreservation Approaches for Conservation of PGR, ICAR-NBPGR, New Delhi, India).
Claims are drawn to a method of storing viable maize pollen by applying a carrier and placing the maize pollen or the treated maize pollen in sealable container for at least 1 day. The claims are further drawn wherein the container is aluminum tray.
Regarding claim 6, Etter et al. teaches a method of storing viable maize pollen in a sealable container and storing at 4oC (i.e. refrigerated environment) for 24 hours or 1 day, see analysis above.
Regarding claim 29, Etter et al. teaches “Chamber" is used herein to mean an enclosure suitable for containing and storing pollen (page 4, paragraph 0035). Etter et al. teaches chamber can vary in size and material of construction (page5, paragraph 0053).
Etter et al. does not teach suitable container comprise a aluminum tray.
Gowthami et al. teaches storing pollen in aluminum packets (page 54, 5) for example collected from Allium species inflorescence (page 55, first paragraph)
Thus it would have been obvious before effective date of filling of invention from some teaching, suggestions and motivation of Etter et al. to place it in a chamber or enclosures for storing pollen and of further motivation from Gowthami et al. to use known method of using container of aluminum packets or tray in a refrigerated condition leading to predictable method of improving viability of maize pollen.
Obvious over Etter et al. and further in view of Albertsen et al.
Claims 6 and 58 are rejected under 35 U.S.C. 103 as being unpatentable over Etter et al. and further in view of Albertsen et al. (US patent application Pub. No.: U.S. 2016/0010109, Pub. Date: Jan. 14, 2016).
Claims are drawn to a method of storing viable maize pollen by applying a carrier and placing the maize pollen or the treated maize pollen in sealable container for at least 1 day. The claims are further drawn wherein the maize pollen is transgenic maize pollen comprising even GA21 etc.
Regarding claim 6, Etter et al. teaches a method of storing viable maize pollen in a sealable container and storing at 4oC (i.e. refrigerated environment) for 24 hours or 1 day, see analysis above.
Regarding claim 58, it would have been obvious to modify the teachings of Etter et al. in view of Albertsen et al. who teach that before the effective filing date of the instant claims it would have been obvious to one of ordinary skill in the art to combine events Bt11, GA21 and MIR162 in a corn plant (page 7, paragraph 0076). It would have been obvious that such corn plants would comprise the transgenes in the pollen, especially if the plant was homozygous for each of the transgenes.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 6, 8, 11, 22-23, 25, 27, 34, 41, 43, and 58 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 17, 5-6, 15, 32, 20, 36 and 38 of U.S. Patent No. 18861930 (Hereafter referenced as Application ‘930).
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claims 6 and 36, Application ‘930 claims 1 and 2 recite method of storing viable maize pollen comprising collecting fresh pollen, applying carrier, placing the fresh pollen or maize pollen in a sealable container, sealing the container and storing the pollen which will be viable for at least 1 days.
Regarding claim 8, Application ‘930 claim 17 recite container size of 1mL.
Regarding claim 11, Application ‘930 claim 3 recites amount of fresh pollen of maize is 2 grams.
Regarding claims 22 and 43, Application ‘930 claims 5 and 6 recite the carrier is crystalline silica, talc etc. with size of average 1 nanometer.
Regarding claims 23 and 25, Application ‘930 claims 5 and 10 recite the carrier is a metallic oxide powder, a metallic powder with size of 10 micrometer.
Regarding claim 27, Application ‘930 claim 15 recite the pollen: carrier ration is 1:20 etc.
Regarding claim 34 , Application ‘930 claim 32 recite the refrigerated environment comprise temperature of 10C-100C etc.
Regarding claim 41, Application ‘930 claim 20 recite the container comprise a CO2 sequestration agent for example charcoal etc.
Regarding claim 58 , Application ‘930 claim 36 and 38 recite the maize pollen is transgenic maize pollen for event GA21 etc.
Claims 6, 20 and 63 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 5 of U.S. Patent No. 18861930 (Hereafter referenced as Application ‘930) and in view of Etter et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 6, Application ‘930 claim 1 recite method of storing viable maize pollen comprising collecting fresh pollen, applying carrier, placing the fresh pollen or maize pollen in a sealable container, sealing the container and storing the pollen which will be viable for at least 1 days.
Regarding claims 20 and 63, Application ‘930 does note teach preservation of pollen in specific atmospheric pressure.
Etter et al teaches preservation of pollen in atmospheric pressure of 15-150 kPa which comprise (o.3 atm = 30 kPA and 0.6 atm=60 kPA) (page 8, paragraph 0072).
Regarding claims 32 and 38, the glass centrifuge tubes taught by Etter et al. (page 10, Paragraph 0095) would have been fabricated from glass and tube would have some air oxygen content.
Claims 6 and 26 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 5 of U.S. Patent No. 18861930 (Hereafter referenced as Application ‘930) and in view of Maeda et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 6, Application ‘930 claim 1 recite method of storing viable maize pollen comprising collecting fresh pollen, applying carrier, placing the fresh pollen or maize pollen in a sealable container, sealing the container and storing the pollen which will be viable for at least 1 days.
Application ‘930 claim 5 recite the carrier is metallic powder.
Regarding claim 26, Application ‘930 does not teach metallic powder is a stainless steel powder of size 10µm.
Maeda et al. teaches use of deoxidation agent to make vegetable or fruit fresh for example by use of metal powder a ferrous compounds as iron (i.e. stain steel powder), ferrous oxide which absorb oxygen by reacting with oxygen and are oxygen scavengers to keep the vegetable and fruit fresh (page 2, paragraph 9).
Kaiping et al. teaches stainless steel powder of size on average of 10µm (page 3, Figure 3) which are considered of fine sized powder (page 2, paragraph 3). Therefor someone skilled in the art would find out the specific suitable size by routine experimentation as showed in example 5 to find such available fine sized powder to be useful in storing method.
Therefore it would have been obvious to use a stainless steel powder in the method of storing viable maize pollen to keep the maize pollen fresh longer as suggested by Maeda et al. in the method of storing of Application ‘930, that the ferrous metal powder or ferrous oxide (i.e. stainless steel powder) would keep the freshness of fruit, vegetable or flowers or the living cells such as pollens to be viable longer.
Claims 6 and 29 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 18861930 (Hereafter referenced as Application ‘930) and in view of Gowthami et al.
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 6, Application ‘930 claim 1 recite method of storing viable maize pollen comprising collecting fresh pollen, applying carrier, placing the fresh pollen or maize pollen in a sealable container, sealing the container and storing the pollen which will be viable for at least 1 days.
Regarding claim 29, Application ‘930 does not teach the container is an aluminum tray.
Gowthami et al. teaches storing pollen in aluminum packets (page 54, 5) for example collected from Allium species inflorescence (page 55, first paragraph)
Thus it would have been obvious before effective date of filling of invention from some teaching, suggestions and motivation in Application ‘930 to place it in a container for storing pollen and further motivation from Gowthami et al. to use known method of using container of aluminum packets or tray in refrigerated condition leading to predictable method of improving viability of maize pollen.
Conclusion
No claim is allowed.
Examiner’s Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANTOSH SHARMA whose telephone number is (571)272-8440. The examiner can normally be reached Mon-Fri 8:00 AM - 5:00 PM.
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/SANTOSH SHARMA/Examiner, Art Unit 1663
/Amjad Abraham/SPE, Art Unit 1663
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