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 .
Status of the Claims
Claims 1-11 are pending.
Claims 1-11 are examined herein.
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code. 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 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 1-11 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.
Claims 1, 2, 8 and 9 recite in part “wherein said cereal plant is a cereal plant that comprises at least an A and a B or related genomes, such as wheat (Triticum aestivum; ABD), spelt (Triticum spelta; ABD), durum (T. turgidum; AB), barley (Hordeum vulgare; H), rye (Secale cereale; R) or triticale”.
Regarding claims 1, 2, 8 and 9, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). As such the metes and bounds of the claim are unclear. All of the dependent claims depend from claims 1 and 2 and because those claims to not clarify the identified issue, they are rejected as a function of their dependency.
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 1-11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 12016281. Although the claims at issue are not identical, they are not patentably distinct from each other for the following reasons.
Applicant claims as follows:
1. A method for selecting a cereal plant comprising a functional restorer gene allele for wheat G-type cytoplasmic male sterility or for producing a cereal plant comprising a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A (1A restorer gene allele) and a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B (1B restore gene allele), said method comprising: (a) identifying at least one cereal plant comprising at least one marker allele linked to a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A (1A restorer marker allele) and at least one marker allele linked to a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B (1B restorer marker allele); and (b) selecting the plant comprising said 1A restorer marker allele and said 1B restorer gene allele; wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1A localizes within an interval on chromosome 1A which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from:
i) a C at a position corresponding to position 51 in SEQ ID NO: 3 ii) a C at a position corresponding to position 98 in SEQ ID NO: 16; iii) a G at a position corresponding to position 113 in SEQ ID NO: 17; iv) a C at a position corresponding to position 51 in SEQ ID NO: 18; or v) a G at a position corresponding to position 51 in SEQ ID NO: 19; and wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B localizes within an interval on chromosome 1B which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from: i) a C at a position corresponding to position 51 in SEQ ID NO: 22; ii) an A at a position corresponding to position 51 in SEQ ID NO: 23; iii) a T at a position corresponding to position 51 in SEQ ID NO: 24; iv) a T at a position corresponding to position 108 in SEQ ID NO: 25; v) a T at a position corresponding to position 51 in SEQ ID NO: 10; vi) an A at a position corresponding to position 51 in SEQ ID NO: 11; or vii) an A at a position corresponding to position 51 in SEQ ID NO: 12; and wherein said cereal plant is a cereal plant that comprises at least an A and a B or related genomes, such as wheat (Triticum aestivum; ABD), spelt (Triticum spelta; ABD), durum (T. turgidum; AB), barley (Hordeum vulgare; H), rye (Secale cereale; R) or triticale.
2. A method for producing a fertile progeny plant from a G-type cytoplasmic male sterile cereal parent plant or seed, said method comprising: (a) providing a population of progeny plants or seeds obtained from crossing a female cereal parent plant with a male cereal parent plant, wherein the female parent plant is a G-type cytoplasmic male sterile cereal plant, and wherein the male parent plant comprises a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A (1A restorer gene allele) and a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B (1B restorer gene allele); (b) selecting in said population a fertile progeny plant or seed comprising at least one marker allele linked to said functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A (1A restorer marker allele) and at least one marker allele linked to said functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B(1B restorer marker allele), wherein said progeny plant or seed comprises said 1A restore gene allele and said 1B restorer gene allele; and optionally (c) propagating the fertile progeny plant or seed, where said at least one marker allele linked to said functional restorer gene allele on chromosome 1A localizes within an interval on chromosome 1A which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from: i) a C at a position corresponding to position 51 in SEQ ID NO: 3; ii) a C at a position corresponding to position 98 in SEQ ID NO: 16; iii) a G at a position corresponding to position 113 in SEQ ID NO: 17; iv) a C at a position corresponding to position 51 in SEQ ID NO: 18; or v) a G at a position corresponding to position 51 in SEQ ID NO: 19; and wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B localizes within an interval on chromosome 1B which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from: i) a C at a position corresponding to position 51 in SEQ ID NO: 22; ii) an A at a position corresponding to position 51 in SEQ ID NO: 23, iii) a T at a position corresponding to position 51 in SEQ ID NO: 24; iv) a T at a position corresponding to position 108 in SEQ ID NO: 25; v) a T at a position corresponding to position 51 in SEQ ID NO: 10; vi) an A at a position corresponding to position 51 in SEQ ID NO: 11; or vii) an A at a position corresponding to position 51 in SEQ ID NO: 12; and wherein said cereal plant is a cereal plant that comprises at least an A and a B or related genomes, such as wheat (Triticum aestivum; ABD), spelt (Triticum spelta; ABD), durum (T. turgidum; AB), barley (Hordeum vulgare; H), rye (Secale cereale; R) or triticale.
3. The method of claim 2, wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1A localizes to an interval on chromosome 1A comprising and flanked by the marker pair of SEQ ID NO: 16 and SEQ ID NO: 19 and/or wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B localizes to an interval on chromosome 1B comprising and flanked by the marker pair of SEQ ID NO: 22 and SEQ ID NO: 10, wherein said marker of SEQ ID NO: 16 has a C at a position corresponding to position 98 in SEQ ID NO: 16, said marker of SEQ ID NO: 19 has a G at a position corresponding to position 51 in SEQ ID NO: 19, said marker of SEQ ID NO: 22 has a C at a position corresponding to position 51 in SEQ ID NO: 22, and said marker of SEQ ID NO: 10 has a T at a position corresponding to position 51 in SEQ ID NO: 10.
4. The method of claim 2, wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1A has: a. a C at a position corresponding to position 51 in SEQ ID NO: 3; b. a C at a position corresponding to position 98 in SEQ ID NO: 16; c. a G at a position corresponding to position 113 in SEQ ID NO: 17; d. a C at a position corresponding to position 51 in SEQ ID NO: 18; or e. a G at a position corresponding to position 51 in SEQ ID NO: 19; or any combination thereof; and/or wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B has: f. a C at a position corresponding to position 51 in SEQ ID NO: 22; g. an A at a position corresponding to position 51 in SEQ ID NO: 23, h. a T at a position corresponding to position 51 in SEQ ID NO: 24; or i. a T at a position corresponding to position 108 in SEQ ID NO: 25, or j. a T at a position corresponding to position 51 in SEQ ID NO: 10; k. an A at a position corresponding to position 51 in SEQ ID NO: 11; or l. an A at a position corresponding to position 51 in SEQ ID NO: 12, or any combination thereof.
5. The method of claim 2, wherein said 1A restorer gene allele and/or said 1B functional restorer gene allele is/are obtainable from USDA accession number PI 583676.
6. A method for producing a cereal plant comprising a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A and a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B, said method comprising a. crossing a first cereal plant comprising a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1A and comprising a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B with a second cereal plant; and b. selecting a progeny plant comprising a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A and comprising a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B according to the method of claim 1.
7. The method of claim 6, wherein said first cereal plant is homozygous for said functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1A and homozygous for a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B.
8. A method for producing hybrid seed, said method comprising: a. providing a male cereal parent plant comprising at least one marker allele linked to a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1A and at least one marker allele linked to a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B as described in claim 1, said male parent plant comprising said functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A and said functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B as described in claim 1;a. providing a male cereal parent plant comprising at least one marker allele linked to a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1A and at least one marker allele linked to a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B as described in claim 1, said male parent plant comprising said functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A and said functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B as described in claim 1; b. providing a female cereal parent plant that is a G-type cytoplasmic male sterile cereal plant; c. crossing said female cereal parent plant with said male cereal parent plant; and optionally d. harvesting seeds on said female cereal parent plant, and wherein said cereal plant is a cereal plant that comprises at least an A and a B or related genomes, such as wheat (Triticum aestivum; ABD), spelt (Triticum spelta; ABD), durum (T. turgidum; AB), barley (Hordeum vulgare; H), rye (Secale cereale; R) or triticale.
9. A method for determining the presence or absence or zygosity status of a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A and the presence or absence or zygosity status of a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B in a biological sample of a cereal plant or seed, said method comprising a. providing genomic DNA from said biological sample by obtaining tissue material from said plant or seed and preparing a crude extract or lysate therefrom, and b. analyzing said DNA for the presence or absence or zygosity status of at least one marker allele linked to said functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1A (1A restorer marker allele) and the presence or absence or zygosity status of at least one marker allele linked to said functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B (1B restorer marker allele), wherein said at least one 1A restorer marker allele localizes within an interval on chromosome 1A which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from: i) a C at a position corresponding to position 51 in SEQ ID NO: 3; ii) a C at a position corresponding to position 98 in SEQ ID NO: 16; iii) a G at a position corresponding to position 113 in SEQ ID NO: 17; iv) a C at a position corresponding to position 51 in SEQ ID NO: 18; or v) a G at a position corresponding to position 51 in SEQ ID NO: 19; and wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B localizes within an interval on chromosome 1B which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from: i) a C at a position corresponding to position 51 in SEQ ID NO: 22; ii) an A at a position corresponding to position 51 in SEQ ID NO: 23, iii) a T at a position corresponding to position 51 in SEQ ID NO: 24; or iv) a T at a position corresponding to position 108 in SEQ ID NO: 25, or v) a T at a position corresponding to position 51 in SEQ ID NO: 10; vi) an A at a position corresponding to position 51 in SEQ ID NO: 11; or vii) an A at a position corresponding to position 51 in SEQ ID NO: 12; and wherein said cereal plant is a cereal plant that comprises at least an A and a B or related genomes, such as wheat (Triticum aestivum; ABD), spelt (Triticum spelta; ABD), durum (T. turgidum; AB), barley (Hordeum vulgare; H), rye (Secale cereale; R) or triticale.
10. The method of claim 1, wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1A localizes to an interval on chromosome 1A comprising and flanked by the marker pair of SEQ ID NO: 16 and SEQ ID NO: 19 and/or wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B localizes to an interval on chromosome 1B comprising and flanked by the marker pair of SEQ ID NO: 22 and SEQ ID NO: 10, wherein said marker of SEQ ID NO: 16 has a C at a position corresponding to position 98 in SEQ ID NO: 16, said marker of SEQ ID NO: 19 has a G at a position corresponding to position 51 in SEQ ID NO: 19, said marker of SEQ ID NO: 22 has a C at a position corresponding to position 51 in SEQ ID NO: 22, and said marker of SEQ ID NO: 10 has a T at a position corresponding to position 51 in SEQ ID NO: 10.
11. The method of claim 1, wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1A has: a. a C at a position corresponding to position 51 in SEQ ID NO: 3; b. a C at a position corresponding to position 98 in SEQ ID NO: 16; c. a G at a position corresponding to position 113 in SEQ ID NO: 17; d. a C at a position corresponding to position 51 in SEQ ID NO: 18; or e. a G at a position corresponding to position 51 in SEQ ID NO: 19; or any combination thereof; and/or wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B has: f. a C at a position corresponding to position 51 in SEQ ID NO: 22; g. an A at a position corresponding to position 51 in SEQ ID NO: 23, h. a T at a position corresponding to position 51 in SEQ ID NO: 24; or i. a T at a position corresponding to position 108 in SEQ ID NO: 25, or j. a T at a position corresponding to position 51 in SEQ ID NO: 10; k. an A at a position corresponding to position 51 in SEQ ID NO: 11; or l. an A at a position corresponding to position 51 in SEQ ID NO: 12, or any combination thereof.
U.S. Patent No. 12016281 Claims as follows:
1. A method for producing a hybrid wheat seed comprising a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A (1A restorer gene allele) and a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B (1B restore gene allele), said method comprising: (a) identifying at least one wheat plant comprising at least one marker allele linked to a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A (1A restorer marker allele) and at least one marker allele linked to a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B (1B restorer marker allele); and (b) crossing said plant comprising said 1A restorer marker allele and said 1B restorer gene allele with a wheat plant with G-type cytoplasmic male sterility, to obtain hybrid seed; where said at least one marker allele linked to said functional restorer gene allele on chromosome 1A localizes within an interval on chromosome 1A which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from: i) a C at a position corresponding to position 98 in SEQ ID NO: 16; ii) a G at a position corresponding to position 113 in SEQ ID NO: 17; iii) a C at a position corresponding to position 51 in SEQ ID NO: 18; or iv) a G at a position corresponding to position 51 in SEQ ID NO: 19; and wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B localizes within an interval on chromosome 1B which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from: e. a C at a position corresponding to position 51 in SEQ ID NO: 22; f. an A at a position corresponding to position 51 in SEQ ID NO: 23, g. a T at a position corresponding to position 51 in SEQ ID NO: 24; or h. a T at a position corresponding to position 108 in SEQ ID NO: 25, or i. a T at a position corresponding to position 51 in SEQ ID NO: 10.
2. A method for producing a fertile progeny plant from a G-type cytoplasmic male sterile wheat parent plant, said method comprising: (a) providing a population of progeny plants or seeds obtained from crossing a female wheat parent plant with a male wheat parent plant, wherein the female parent plant is a G-type cytoplasmic male sterile wheat plant, and wherein the male parent plant comprises a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A (1A restorer gene allele) and a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B (1B restorer gene allele); (b) selecting in said population a fertile progeny plant or seed comprising at least one marker allele linked to said functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A (1A restorer marker allele) and at least one marker allele linked to said functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B(1B restorer marker allele), wherein said progeny plant comprises said 1A restore gene allele and said 1B restorer gene allele; and optionally (c) propagating the fertile progeny plant or seed, where said at least one marker allele linked to said functional restorer gene allele on chromosome 1A localizes within an interval on chromosome 1A which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from: i) a C at a position corresponding to position 98 in SEQ ID NO: 16; ii) a G at a position corresponding to position 113 in SEQ ID NO: 17; iii) a C at a position corresponding to position 51 in SEQ ID NO: 18; or iv) a G at a position corresponding to position 51 in SEQ ID NO: 19; and wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B localizes within an interval on chromosome 1B which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from: e. a C at a position corresponding to position 51 in SEQ ID NO: 22; f. an A at a position corresponding to position 51 in SEQ ID NO: 23, g. a T at a position corresponding to position 51 in SEQ ID NO: 24; or h. a T at a position corresponding to position 108 in SEQ ID NO: 25, or i. a T at a position corresponding to position 51 in SEQ ID NO: 10.
3. The method of claim 2, wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1A localizes to an interval on chromosome 1A comprising and flanked by the marker pair of SEQ ID NO: 16 and SEQ ID NO: 19 and/or wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B localizes to an interval on chromosome 1B comprising and flanked by the marker pair of SEQ ID NO: 22 and SEQ ID NO: 25, wherein said marker of SEQ ID NO: 16 has a C at a position corresponding to position 98 in SEQ ID NO: 16, said marker of SEQ ID NO: 19 has a G at a position corresponding to position 51 in SEQ ID NO: 19, said marker of SEQ ID NO: 22 has a C at a position corresponding to position 51 in SEQ ID NO: 22, and said marker of SEQ ID NO: 25 has a T at a position corresponding to position 108 in SEQ ID NO: 25.
4. The method of claim 2, wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1A has: a. a C at a position corresponding to position 98 in SEQ ID NO: 16; b. a G at a position corresponding to position 113 in SEQ ID NO: 17; c. a C at a position corresponding to position 51 in SEQ ID NO: 18; d. a G at a position corresponding to position 51 in SEQ ID NO: 19; or any combination thereof; and/or wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B has: e. a C at a position corresponding to position 51 in SEQ ID NO: 22; f. an A at a position corresponding to position 51 in SEQ ID NO: 23, g. a T at a position corresponding to position 51 in SEQ ID NO: 24; h. a T at a position corresponding to position 108 in SEQ ID NO: 25, or any combination thereof.
5. The method of claim 2, wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1A has a C at a position corresponding to position 51 in SEQ ID NO: 18 and/or wherein said at least one marker allele linked to said functional restorer gene allele on chromosome 1B has a T at a position corresponding to position 51 in SEQ ID NO: 24.
6. The method of claim 2, wherein said 1A restorer gene allele and/or said 1B functional restorer gene allele is/are obtainable from USDA accession number PI 583676.
7. A method for producing a wheat plant comprising a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A and a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B, said method comprising a. crossing a first wheat plant comprising a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1A and comprising a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B with a second wheat plant; and b. selecting a progeny plant comprising a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A and comprising a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B according to the method of claim 2.
8. A method for producing a wheat plant comprising a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A and comprising a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B, said method comprising a. crossing a first wheat plant homozygous for a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1A and homozygous for a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B with a second wheat plant; and b. obtaining a progeny plant, wherein said progeny plant comprises a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A and a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B as described in claim 2.
9. A method for producing hybrid seed, said method comprising: a. providing a male wheat parent plant comprising at least one marker allele linked to a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1A and at least one marker allele linked to a functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B as described in claim 2, said male parent plant comprising said functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A and said functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B as described in claim 2; b. providing a female wheat parent plant that is a G-type cytoplasmic male sterile wheat plant; c. crossing said female wheat parent plant with said male wheat parent plant; and optionally d. harvesting seeds on said female wheat parent plant.
10. A method for determining the presence or absence or zygosity status of a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1A and the presence or absence or zygosity status of a functional restorer gene allele for wheat G-type cytoplasmic male sterility located on chromosome 1B in a biological sample of a wheat plant or seed, said method comprising a. providing genomic DNA from said biological sample by obtaining tissue material from said plant or seed and preparing a crude extract or lysate therefrom, and b. analyzing said DNA for the presence or absence or zygosity status of at least one marker allele linked to said functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1A (1A restorer marker allele) and the presence or absence or zygosity status of at least one marker allele linked to said functional restorer gene for wheat G-type cytoplasmic male sterility located on chromosome 1B (1B restorer marker allele), wherein said at least one 1A restorer marker allele localizes within an interval on chromosome 1A which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from: i) a C at a position corresponding to position 98 in SEQ ID NO: 16; ii) a G at a position corresponding to position 113 in SEQ ID NO: 17; iii) a C at a position corresponding to position 51 in SEQ ID NO: 18; or iv) a G at a position corresponding to position 51 in SEQ ID NO: 19; and wherein said at least one 1B restorer marker allele localizes within an interval on chromosome 1B which interval comprises and is flanked by two marker alleles, wherein said two marker alleles are selected from: e. a C at a position corresponding to position 51 in SEQ ID NO: 22; f. an A at a position corresponding to position 51 in SEQ ID NO: 23, g. a T at a position corresponding to position 51 in SEQ ID NO: 24; or h. a T at a position corresponding to position 108 in SEQ ID NO: 25, or i. a T at a position corresponding to position 51 in SEQ ID NO: 10.
As set forth previously, the instant claims recite all of the steps of the instantly claimed methods – selecting, analyzing, providing, crossing and propagating plants comprising the markers. As such, the instantly claimed method steps are all obvious in view of the claimed subject matter of the reference patent. The primary difference between the two claims is the size of the maximum interval. All of the flanking markers claimed in the instant claims are claimed by the reference patent, but with respect to sequence identifiers and the specifically recited nucleotide positions. The instant claims further include the markers identified in SEQ ID NO:3, 11, 12 and 22, which increases the size of the marker intervals. The interval in the instant claims actually encompasses the interval claimed in the reference patent. As such, the instant claims are directed to a genius of the species of the reference patent and are primary facie obvious. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. (MPEP 2144.05).
Conclusion
Claims 1-11 appear to be free of the prior art given the failure of the prior art to teach or reasonably suggest applicant’s method for producing hybrid wheat seed. The closest prior art is Zhang et al (2003, “Location of the Fertility Restorer Gene for T-Type CMS Wheat by Microsatellite Marker”, Acta Genetica Sinica 30 (5): 459-464; English translation) disclose a method for producing a wheat plant comprising a functional restorer gene allele for wheat T-type cytoplasmic male sterility. Zhang et al do not teach or suggest applicants claimed method.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES A LOGSDON whose telephone number is (571)270-0282. The examiner can normally be reached M-F 8:30 - 5:00 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, Shubo (Joe) Zhou can be reached on (571)272-0724. 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.
/CHARLES LOGSDON/Primary Examiner, Art Unit 1662