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 (claims 1-3, 5, 6, 8, and 9), marker locus M8 (SEQ ID NO:15), and the CMV resistance allele within the chromosomal segment flanked in the genome of said plant by marker locus M21 (SEQ ID NO:29) and marker locus M22 (SEQ ID NO:30) on chromosome 5 . in the reply filed on 22 October 2025 is acknowledged. The traversal is on the ground(s) that all the individual markers collectively recited in amended claim 6 are located within the chromosome 2 interval and useful for the same methodologies described in the pending claims. This is found persuasive in light of applicant Amendment of claim 6. Applicant has not traversed the restriction between the inventions of groups 1-3.
The requirement is still deemed proper and is therefore made FINAL.
Examiner notes that in the amended claims filed on 22 October 2025, Applicant has not indicated the status of previously pending claims 13-14, 17-19, and 24-29. Examiner attempted to contact Applicant’s agent on 26 May 2026 but did not receive any reply. While the amendment is considered non-complaint, Examiner has examined the application as those claims were drawn to a non-elected invention. Accordingly claims 11, 13-14, 17-19, and 24-29 are withdrawn from consideration.
Claims 1-3, 5, 6, 8 and 9 are pending and are examined herein.
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 3 is 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 the rejections.
Claim 3 is indefinite in its recitation of “wherein said cucumber plant comprises wherein a representative sample of seed comprising said chromosomal segment has been deposited under ATCC Accession No. PTA-122638”. It is not clear what this statement is intended to mean. Does the plant comprise such a seed? For these reasons the metes and bounds of claim 3 are unclear.
Claim Rejections - 35 USC § 112
Written Description
Claims 1-3, 5, 6, 8 and 9 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Applicant broadly claims a method of producing cultivated Cucumis sativus var sativus plants that comprise one, two or three introgression fragments conferring resistance to cucumber mosaic virus (CMV).
Thus the claims are drawn to a broad genus of cucumber plants, comprising at least one copy of any QTL located within a segment on chromosome 2 flanked by SEQ ID NO: 11 and 20 from any source cucumber plant and which confers resistance to CMV, or comprising said QTL on chromosome 2 and either any QTL located within a segment on chromosome 5 flanked by SEQ ID NO: 29 and 30 or any QTL located within a segment on chromosome 6 flanked by SEQ ID NO: 1 and 10 from any source cucumber plant and which confer resistance to CMV, or all three QTLs in combination.
These three chromosomal segments are approximately 2 Mbp, 1.6 Mbp and 1.2 Mbp in length, are not required to actually comprise the flanking sequences recited in the claims, and could each comprise potentially dozens of genes and/or QTLs.
The USDA National Plant Germplasm System collection alone comprises over 1300 cucumber accessions (Wang et al, 2018; Horticulture Research 5:64; page 2, columns 1-2, bridging paragraph).
Thus the claims encompass an exceedingly vast number of possible combinations of QTLs and source material.
Examiner notes that while the claims recite that the QTLs conferring resistance to CMV are introgressed, it is not clear how one would determine whether a QTL that conferred said resistance originated from a donor plant, absent a sequence specific to a donor or, alternatively a location and reference to a donor plant source, such as a deposited plant or publicly available plant.
In contrast to the broad claimed genus, however, applicant describes the cucumber plants APDM3130438MO and APDM3130430MO —which applicant discloses are resistant to CMV and which comprise all three introgression fragments (see ¶0029, 0086-0087). Applicant does not disclose the source of the introgression fragments in these deposited lines.
Applicant does not disclose any other cucumber plants comprising said introgression fragments and which have an increased resistance to CMV conferred by said QTLs.
Applicant does not describe the gene alleles or any causative SNP alleles that confer CMV resistance—the recited markers are merely correlated with said resistance. Applicant does not describe any other QTLs, beyond those located in the recited locations on chromosomes 2, 5 and 6 in the genomes of the deposited lines. Applicant does not describe any other sources of resistance beyond these deposited lines.
See Vas-Cath Inc. v. Mahurkar 1991 (CA FC) 19 USPQe2d 1111, 1115, which teaches that the purpose of the written description is for the purpose of warning an innocent purchaser, or other person using a machine, of his infringement of the patent and at the same time, of taking from the inventor the means of practicing upon the credulity or the fears of other persons, by pretending that his invention is more than what it really is, or different from its ostensible objects, that the patentee is required to distinguish his invention in his specification. Without both a location for a claimed QTL marker and a source, or a causative SNP allele (as opposed to a correlative marker) it is not clear how a person of ordinary skill would be able to determine if a cucumber plant with CMV resistance is infringing on the genus of cucumber plants with CMV resistance as broadly claimed in the instant application.
Therefore, given the lack of written description in the specification, Applicant does not appear to have adequately described the genus of claimed cucumber plants with CMV resistance.
Scope of Enablement
Claims 1-3, 5, 6, 8, and 9 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for methods of producing CMV resistant cucumber lines comprising introgression of three QTLs as present in one of the deposited lines does not reasonably provide enablement across the full scope of the claims as currently recited. The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make or use the invention commensurate in scope with these claims.
Applicant broadly claims a method of producing cultivated Cucumis sativus var sativus plants that comprise one, two or three introgression fragments conferring resistance to cucumber mosaic virus (CMV).
Thus the claims are drawn to a broad genus of cucumber plants, comprising at least one copy of any QTL located within a segment on chromosome 2 flanked by SEQ ID NO: 11 and 20 from any source cucumber plant and which confers resistance to CMV, or comprising said QTL on chromosome 2 and either any QTL located within a segment on chromosome 5 flanked by SEQ ID NO: 29 and 30 or any QTL located within a segment on chromosome 6 flanked by SEQ ID NO: 1 and 10 from any source cucumber plant and which confer resistance to CMV, or all three QTLs in combination.
These three chromosomal segments are approximately 2 Mbp, 1.6 Mbp and 1.2 Mbp in length, are not required to actually comprise the flanking sequences recited in the claims, and could each comprise potentially dozens of genes and/or QTLs.
The USDA National Plant Germplasm System collection alone comprises over 1300 cucumber accessions (Wang et al, 2018; Horticulture Research 5:64; page 2, columns 1-2, bridging paragraph).
Thus the claims encompass an exceedingly vast number of possible combinations of QTLs and source material.
Examiner also notes that while the claims recite that the QTLs conferring resistance to CMV are introgressed, it is not clear how one would determine whether a QTL that conferred said resistance originated from a donor plant, absent a sequence specific to a donor or, alternatively a location and reference to a donor plant source, such as a deposited plant or publicly available plant.
In contrast to the broad claimed genus, however, applicant describes the cucumber plants APDM3130438MO and APDM3130430MO —which applicant discloses are resistant to CMV and which comprise all three introgression fragments (see ¶0029, 0086-0087). Applicant does not disclose the source of the introgression fragments in these deposited lines.
Applicant does not disclose any other cucumber plants comprising said introgression fragments and which have an increased resistance to CMV conferred by said QTLs.
Applicant does not describe the gene alleles or any causative SNP alleles that confer CMV resistance—the recited markers are merely correlated with said resistance. Applicant does not describe any other QTLs, beyond those located in the recited locations on chromosomes 2, 5 and 6 in the genomes of the deposited lines. Applicant does not describe any other sources of resistance beyond these deposited lines.
Choskit et al (2022, Indian Journal of Ecology 49(5): 2008-2012; Table 1) identifies 8 cucumber lines that are at least moderately resistant to CMV out of 40 lines surveyed. The study does not identify any genes or QTLs responsible for conferring said resistance.
Sun et al (2022, “QTL Mapping for Disease Resistance”, pp 81-92 in The Cucumber Genome, Pandey et al (eds.); pages 81-82, section “7.1.1 Cucumber Mosaic Virus (CMV)”) discloses that genes and QTLs associated with CMV resistance have been identified on chromosomes 3, 4, 5 and 6.
The art appears to be silent regarding any genes or QTLs located on chromosome 2 which confer CMV resistance in cucumber plants.
Taken together, it appears that no other sources of the claimed QTLS are known in the art beyond the disclosures of the instant application. Thus in order to identify any sources of CMV resistance which meet the limitations of the instant claims, one would have to resort to trial and error experimentation to identity them, if they even exist.
Given limited guidance teachings supplied by Applicant, the breadth of the claims, as well as the lack of knowledge in the art, it would have required one skilled in the art undue trial and error experimentation to make and use the claimed invention through the full scope of its claims.
Conclusion
No claims are allowed.
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/ALEKSANDAR RADOSAVLJEVIC/Examiner, Art Unit 1662
/BRENT T PAGE/Primary Examiner, Art Unit 1663
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