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 .
DETAILED ACTION
1. The Office acknowledges the receipt of Applicant’s amendment filed December 8, 2025. Claims 1-4, 6-8, 10-12, 18, 20-22, 24-26 and 30 are pending and are examined.
Applicant’s request for an interview is noted. Applicant may contact the examiner to set up a mutually convenient time to discuss Applicant’s interview agenda.
All previous rejections not set forth below have been withdrawn.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
This action is made FINAL.
Information Disclosure Statement (IDS)
2. Applicant’s IDS filed December 8, 2025 has been considered. A signed copy is attached.
Specification
3. The disclosure is objected to because of the following:
Variety 72-BF0101 RZ of the instant application is disclosed as having the same parents as variety 72-MP0029 RZ of Application No. 18/495380 (‘380), now allowed, and variety 72-MP0028 RZ of Application No. 18/496168 (‘168), now allowed. However, their morphological and physiological characteristics are significantly different. For example, variety 72-BF0101 RZ of the instant application is an orange beef tomato type and is susceptible to Meloidogyne incognita. In contrast, variety 72-MP0029 RZ of ‘380 and variety 72-MP0028 RZ of ‘168 are a red mini plum tomato type and are resistant to M. incognita. It is unclear how the same parents, if homozygous, produce hybrid sibling plants having significantly different morphological and physiological characteristics. Clarification is required.
No clarification has been provided.
Claim Rejections - 35 USC § 112(b)
4. Claims 22 and 30 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.
In claim 22, a plant having all the morphological and physiological characteristics of hybrid tomato variety 72-BF0101 RZ further comprising at least one new trait cannot be produced by introducing a mutation or transgene conferring the at least one new trait into a plant of hybrid tomato variety 72-BF0101 RZ, because introducing a mutation or transgene into a plant of hybrid tomato variety 72-BF0101 RZ would alter the morphological and physiological characteristics of hybrid tomato variety 72-BF0101 RZ.
In claim 30, “a tomato fruit according to claim 26” should be amended to “the tomato fruit according to claim 26” for proper antecedence.
Correction and/or clarification is required.
Conclusion
5. Claims 22 and 30 are rejected. Claims 1-4, 6-8, 10-12, 18, 20, 21 and 24-26 are allowable.
6. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
7. Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHUONG T BUI whose telephone number is (571)272-0793. The examiner can normally be reached M-F 8am-5pm.
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 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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/PHUONG T BUI/Primary Examiner, Art Unit 1663