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 Claims
Claims 1-2, 4 & 11-22 are under examination on the merits.
Claims 5-8 are withdrawn with traverse.
The objection to claims 1 & 4 are withdrawn in light of Applicant’s amendments.
The rejection of claims 1 & 11-22 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, for New Matter is withdrawn in light of Applicant’s amendments.
The rejection of claims 19-20 under 35 U.S.C. 102(a)(1) as being anticipated by Van Andel (US 8,063,271 B2) is withdrawn in light of Applicant’s amendments.
Claim Objections
Claims 13 & 16 are objected to because of the following informalities:
Claim 13 (lines 1-2): --a plant, representative seed of which was deposited as-- should be inserted after “from”, or similar wording to that effect.
Claim 16 (line 10): “the protein having an amino acid sequence of SEQ ID NO: 3” should read --a protein having the amino acid sequence of SEQ ID NO: 3--.
Appropriate correction is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 16 is rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural phenomenon without significantly more. The claim(s) recite(s) identifying by genetic analysis the presence of a gene and selecting a plant that comprises the gene. This judicial exception is not integrated into a practical application because no active steps are required beyond “identifying” by genetic analysis and selecting. Genetic analysis is not defined by the instant specification to require anything more than genotyping a plant, which is merely characterizing the plant, and identifying the gene and selecting a plant are though processes.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because any additional steps recited are optional, and the gene described is itself a natural phenomenon.
Claim 21, which further requires a step of testing the selected plant for resistance, requires a step that amounts to more than a mental process and is therefore more than the judicial exception.
Claim 22 is rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural phenomenon without significantly more. The claim(s) recite(s) introducing a gene that confers resistance to Albugo candida into the genome of a Raphanus sativus plant. This judicial exception is not integrated into a practical application because introducing a gene into a genome is a process that could occur through natural sexual reproduction in plants, without any intervention by a human.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the gene conferring resistance is a natural phenomenon. According to Applicant’s response to the request for information under 37 CRF 1.105 filed 7/20/2026, the ancestor of NCIMB 43737 from which the gene for resistance to Albugo candida is derived comes from a USDA accession designated PI 121012 (Response page 2, sections i-ii) and only some individuals of the accession comprise resistance (section c). The USDA GRIN details page for accession PI 121012 (last updated 2/24/2025) teaches that the USDA Raphanus sativus accession numbered 121012 was collected in Turkey and has an uncertain improvement status.
Thus, a method comprising introducing the resistance gene of the instant invention into the genome of a Raphanus sativus plant encompasses the natural phenomenon of sexual crosses even within the population of PI 121012 plants and represents a judicial exception.
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 1, 2, 4 & 11-22 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 the rejections below.
Due to Applicant' s amendment of the claims, the rejection is modified from the rejection as set forth in the Office action mailed 11/14/2025 as applied to claim 3. Applicant' s arguments filed 2/12/2026 have been fully considered but they are not persuasive.
Claim 1 recites the limitation "the amino acid sequence having at least 95% sequence identity to SEQ ID NO: 3" in lines 6-7 and “the coding sequence having at least 95% sequence identity to SEQ ID NO: 2” in lines 11-12. Claim 16 recites the limitation “the protein having an amino acid sequence having at least 95% sequence identity to SEQ ID NO: 3” (lines 12-13) and “the coding sequence having at least 95% sequence identity to SEQ ID NO: 2” (lines 17-18). Claim 17 recites “the amino acid sequence having at least 95% sequence identity to SEQ ID NO: 3” in lines 14-15 and “the coding sequence having at least 95% sequence identity to SEQ ID NO: 2” in lines 19-20. Claim 18 recites “the amino acid sequence having at least 95% sequence identity to SEQ ID NO: 3” in lines 11-12 and “the coding sequence having at least 95% sequence identity to SEQ ID NO: 2” in lines 16-17. Claim 22 recites “the amino acid sequence having at least 95% sequence identity to SEQ ID NO: 3” in lines 6-7 and “the coding sequence having at least 95% sequence identity to SEQ ID NO: 2” in lines 11-12.
There is insufficient antecedent basis for these limitations in the claims. Because sequences having at least 95% sequence identity to SEQ ID NO: 3 or SEQ ID NO: 2 encompasses a genera of multiple distinct amino acid sequences or nucleotide sequences respectively, it is not clear which would be “the” sequence required by the claims. The wording “an amino acid sequence” (claim 1 line 6; claim 16 line 12; claim 17 line 14; claim 18 line 11; claim 22 line 6) or “a coding sequence” (claim 1 line 11; claim 16 line 17; claim 17 line 19; claim 18 line 16; claim 22 line 11) would be correct for a limitation requiring any amino acid sequence having at least 95% sequence identity to SEQ ID NO: 3 or any nucleotide sequence having at least 95% sequence identity to SEQ ID NO: 2.
Applicant urges that claim 3 is canceled, so the rejection to the claim is moot (Remarks, page 14, paragraph 5).
This argument is unpersuasive, because although claim 3 is canceled, Applicant’s amendments introduce issues of indefiniteness under 35 U.S.C. 112(b) to other claims.
Written Description
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.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
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 of carrying out his invention.
Claims 1 & 11-22 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.
Due to Applicant' s amendment of the claims, the rejection is modified from the rejection as set forth in the Office action mailed 11/14/2025 as applied to claims 1, 3, & 11-22. Applicant' s arguments filed 2/12/2026 have been fully considered but they are not persuasive.
Claims 1 & 11-22 require a gene encoding a protein conferring resistance to Albugo candida comprising a nucleotide sequence having a coding sequence of at least 95% sequence identity to SEQ ID NO: 2 or encoding a protein having an amino acid sequence of at least 95% sequence identity to SEQ ID NO: 3 or comprising a nucleotide sequence encoding at least the amino acids at position 15 to position 195, position 209 to position 432, and position 540 to position 1023 of SEQ ID NO: 3, or a nucleotide sequence encoding an LRR domain having at least 95% sequence identity to the amino acids at position 540 to 1023 of SEQ ID NO: 3. Claim 13 requires that the gene is introgressed from NCIMB 43737. Because the process of introgression may take multiple generations and the gene may have undergone crossing over or spontaneous mutation, a plant encompassed by claim 13 will not necessarily comprise a nucleotide sequence with 100% sequence identity to SEQ ID NO: 2 or encoding an amino acid sequence with 100% identity to instant SEQ ID NO: 3.
Nucleotide sequences encoding a protein having an amino acid sequence of at least 95% sequence identity to the 1128 amino acid-long SEQ ID NO: 3 encompass sequences with 56 substitutions relative to SEQ ID NO: 3. Nucleotide sequences having a coding sequence of at least 95% sequence identity to the 3384 nucleotide-long SEQ ID NO: 2 encompass sequences with 169 substitutions relative to SEQ ID NO: 2, including sequences where every substitution is in a position that results in a different amino acid. This would result in an amino acid sequence with 169 substitutions relative to instant SEQ ID NO: 3, or 85% sequence identity to SEQ ID NO: 3.
A nucleotide sequence encoding an LRR domain having at least 95% sequence identity to the amino acids at position 540 to 1023 of SEQ ID NO: 3 encompasses sequences with 24 substitutions relative to the 483 amino acid long segment. Such a sequence would only need to share 459 amino acids with the 1128 amino acid long protein of SEQ ID NO: 3, or 40% sequence identity.
Similarly, a sequence encoding the amino acids at position 15 to position 195 of SEQ ID NO: 3, the amino acids at position 209 to position 432, and the amino acids at position 540 to 1023 of SEQ ID NO: 3 encompasses sequences that share only 886 amino acids with SEQ ID NO: 3 (180 + 223 + 483), which represents 78.5% sequence identity to SEQ ID NO: 3.
The amended claims require that the nucleotide sequence of the gene with 95% sequence identity to SEQ ID NO: 2 or encoding a protein with 95% sequence identity to SEQ ID NO: 3 or encoding an LRR domain having 95% sequence identity to positions 540-1023 of SEQ ID NO: 3 furthermore comprise a thymine at a position corresponding to position 2240 of SEQ ID NO: 2. Because the nucleotides adjacent to the position corresponding to position 2240 of SEQ ID NO: 2 are not constrained, this limitation to the nucleotide sequence does not require any specific amino acid sequence at the position.
The instant specification has provided a single example of a genomic nucleic acid sequence (SEQ ID NO: 1) with a single coding sequence (SEQ ID NO: 2) encoding one protein with an amino acid sequence (SEQ ID NO: 3). The instant specification has not taught any variants of the provided nucleic and amino acid sequences that do not have 100% sequence identity to SEQ ID NOs: 1 & 2 or 3 respectively or that comprise positions 15 to 195, 209 to 432 or 540 to 1023 of SEQ ID NO: 3 but do not comprise SEQ ID NO: 3 in its entirety.
The specification describes the protein of SEQ ID NO: 3 as a TIR-NBS-LRR protein comprising a Toll/Interleukin-1 receptor (TIR), nucleotide binding site (NBS) domain, and Leucine Rich Repeat (LRR) domain (paragraph [0014]). The specification describes that TIR-NBS-LIRR proteins are R-proteins providing resistance to a wide array of pathogens and abiotic stress factors and that the LRR domain is involved in protein-protein interaction with the pathogen and assumed to play a key role in providing resistance (paragraph [0014]). The specification describes that position 15-192 of SEQ ID NO: 3 is a TIR domain, positions 209-432 of SEQ ID NO: 3 define an NBS domain, and positions 540-1023 define the LRR domain of SEQ ID NO: 3 (paragraph [0028]). A Raphanus sativus plant comprising the described gene has been deposited under accession number 43737 at NCIMB (paragraph [0035]). The specification describes radish plants that comprise this gene with resistance to 3 isolates of Albugo candida (paragraph [0079-0081], table 3).
The specification describes that in one F3 population crossed with a susceptible parent line, all susceptible variants of the gene of the invention had a cytosine in position 2240 of SEQ ID NO: 2 while all the resistant forms carried a thymine at this position (paragraphs [0084-0086]). Despite referring to gene variants, no variation in the gene other than this single SNP difference is described in the specification. No mechanism is described to account for the activity that results in resistance to Albugo candida.
Putative radish TIR-NBS-LRR resistance genes have been described in the art, including 21 resistance gene analogs identified from the transcriptome (Wang et al (2017) Scientia Horticulturae. 216: 284-292, published 1/19/2017, hereafter Wang: page 286, right column, paragraph 2-page 287, left column, paragraph 1). Wang also describes that many resistance gene analogs that are nonfunctional pseudogenes exist in plant genomes (page 290, left column, paragraph 1). TIR-NBS-LRR genes are considered to be involved in recognizing “species-specific” pathogens, and the LRR domain exhibits high diversity and has been associated with pathogen recognition (Priyamedha et al (2020) in Brassica Improvement. Wani et al (eds) pages 147-157, available online 3/14/2020, hereafter Priyamedha: Page 149, paragraph 1-page 150, paragraph 1). Priyamedha describes resistance loci for Albugo candida in Brassica crops, including a CC-NB-LRR R gene (page 152, paragraph 4).
Xu et al (2022) Horticulturae. 8. 1164. Published 12/8/2022, after the effective filing date of the instant application; hereafter Xu) describes a total of 187 NBS-LRR genes in radish (abstract). Xu describes that the TIR domain plays a crucial function in pathogen recognition through NADase activity (page 1, paragraph 1). In addition to structural differences, NBS-LRR genes in radish can have tissue-specific expression, which indicates that some NBS-LRR genes play crucial roles in tissue-specific disease resistance (page 9, paragraph 2).
Sequences with at least 95% identity to SEQ ID NO: 2 or 3 are not described in the art, although Engelen et al (WO 2019/178554 filed 3/15/2019) teaches a Brassica napus protein sequence with 61% sequence identity to instant SEQ ID NO: 3 or potentially 74% sequence similarity to the amino acid sequence encoded by instant SEQ ID NO: 2 that provides clubroot resistance in Brassica napus and comprises a Toll-Interleukin receptor domain (Engelen SEQ ID NO: 3, see alignment below; paragraphs [12 & 31]).
Sequence 3, PC/TUS1922601A
GENERAL INFORMATION
APPLICANT: BASF Agricultural Solutions Seed US LLC
TITLE OF INVENTION: Brassica plant resistant to Plasmodiophora brassicae (clubroot)
FILE REFERENCE: BCS18-2008
CURRENT APPLICATION NUMBER: PCT/US19,22601
CURRENT FILING DATE: 2019-03-15
NUMBER OF SEQ ID NOS: 12
SEQ ID NO 3
LENGTH: 1207
TYPE: PRT
ORGANISM: Brassica napus
Instant SEQ ID NO: 3
Query Match 61.7%; Score 3602; Length 1207;
Best Local Similarity 64.9%;
Matches 740; Conservative 111; Mismatches 189; Indels 100; Gaps 11;
Qy 1 MALSLASSSSSSRTWVYDVFPSFSGADVRVTFLSHFRKELDRKLIISFKDNEIERSRSLD 60
|||||||| || |||:||||||||| ||||||||| || |:||| :|||||||||||||
Db 1 MALSLASSPSSCRTWLYDVFPSFSGVDVRVTFLSHLLKEFDKKLITAFKDNEIERSRSLD 60
Qy 61 PELKQAIRDSRIAVVIFSENYASSSWCLNELLEIVKCRDECGQMVIPVFYRLDPSHVRKQ 120
|||||||:||||||||||:||||||||||||||||| ||||||||||||||||||||
Db 61 PELKQAIKDSRIAVVIFSQNYASSSWCLNELLEIVK----CGQMVIPVFYRLDPSHVRKQ 116
Qy 121 TDDFGQIFEKTCHNETEEVKMQWRRALTNVANITGFHSVNWGNEAKMIEEIVSDVLEKLL 180
| |||: ||:||:|:||| |:|||||||:||| |:||||||||| ||||| :|||:|||
Db 117 TGDFGKFFEETCNNKTEEEKIQWRRALTDVANTLGYHSVNWGNEAAMIEEIANDVLDKLL 176
Qy 181 LTPSKDSENFVGIEGHIADLSVLLELELEEVRMVGLWGASGIGKTTIARVLFNRLSRHFQ 240
|| ||||||||||| |:| |||||:|: ||||||||||:||||||||||||| ||||||:
Db 177 LTSSKDSENFVGIEDHVAKLSVLLQLDAEEVRMVGLWGSSGIGKTTIARVLFQRLSRHFR 236
Qy 241 GSIFIDRAFISKSTEVFSRANPGDYSMMLHLQSRFLSKILGKNDIEISQLGELAGRLKHH 300
|||||||||:||: |:| ||| ||:| |||| |||:|||| ||:|: | : |||:
Db 237 GSIFIDRAFVSKTMEIFKAANPDDYNMKLHLQRNFLSEILGKGDIKINHLSAVGERLKNQ 296
Qy 301 KVLIFIDDFNDQVVLDSLVGQTQWFGSGSRIVVVTNDKHHLRSHGIDHIYEVCLPSQKLA 360
|||||||||:|||||::||||||||||||||||||||| :||:|||:|||:||||::|||
Db 297 KVLIFIDDFDDQVVLEALVGQTQWFGSGSRIVVVTNDKQYLRAHGINHIYKVCLPTKKLA 356
Qy 361 VEMFCRSAFNENSPPEGFEVLVAEITRLAGSLPLGLSVLGSSLRGRDKEYWVDLLPTLQT 420
||| ||||| : : ||||| |||::| |||||||||:|||| |||||||||:|||| ||
Db 357 VEMLCRSAFRKKAAPEGFEELVAKVTGLAGSLPLGLNVLGSYLRGRDKEYWMDLLPRLQN 416
Qy 421 GIDGKIERTLKVSYEGLSSKGDKTLFRHIACLFNGEKVTYLKLLLADSDLSVNVGMENLA 480
|:|||||:||:|||:||:|: || ||||||||| ||||||||||||| ||| ||:||||
Db 417 GLDGKIEKTLRVSYDGLTSEEDKALFRHIACLFQWEKVTYLKLLLADSGLSVTVGLENLA 476
Qy 481 DKSLIHVSPWGHVEMHRLLQEMGRSIVRLDEPGTREFLMDSQDICDVLSDGTGTQKILGI 540
||||||| :|:|||||:|||| ||||||| ||||:|:|||||||| ||| |||||
Db 477 DKSLIHVRE-DYVKMHRLLEEMGRRIVRLDEPEKREFLVDAQDICDVLSQDTGTHKILGI 535
Qy 541 SLDTDEIDELHIHENAFTGMRNLRFLKFYSR----YGVGTVKLHIPKSFDYLPLKLKSLC 596
|: ||||||::||||| ||||||||: :|: :| |::|:|::||||| ||| |
Db 536 KLNIDEIDELNVHENAFKGMRNLRFLEIHSQNRHEFGNEEVRIHLPENFDYLPPKLKILD 595
Qy 597 WPRYPMRCLPSTFRPENLTELKMQGSKLEKLWEGVVSLPCLKKMDLSFSHNLIEMPDLSK 656
| |||||||| |||| | :||| |||||||||:||| |||||::| | ||||||||||
Db 596 WYEYPMRCLPSKFRPEKLVKLKMVNSKLEKLWEGIVSLTCLKKMNMSGSQNLIEMPDLSK 655
Qy 657 ATNLETLDLDDCYSLVKLPSSIPHPNKLMRLHLMNCQNLEIIPIGISLKSLEELYLDGCS 716
||||||| |:||:||||||||||||||| | | ||:|:| ||||||||||: | ||||
Db 656 ATNLETLYLEDCFSLVKLPSSIPHPNKLTTLILKNCRNVETIPIGISLKSLKNLRTDGCS 715
Qy 717 RLRNFPQILTNIETINIDETRIEEIPSNLHLEDGRLRELSMQNAKSKKPWERVKPLILLT 776
|:| |||| : || : | | |||||||| | | :| : || ||||: | |||
Db 716 RMRTFPQISSTIEDVYIGATSIEEIPSNLSLCFENLHTFTMHS--PKKLWERVQLLTLLT 773
Qy 777 AIMSPPLKYLYLSDMPTLVELPSSFQNLHQLTHLEITDCINLETLPTGINLRSLDDLYLN 836
|||| | || ||| | ||||||||:||| | ||| :|:||||||||||| || | |
Db 774 TIMSPSLWYLDLSDNPGLVELPSSFKNLHNLRRLEIRNCVNLETLPTGINLGSLKILDLR 833
Qy 837 GCSRLSTFPDISTNIKVLSLIATAIEDVPGSVDKFSVLEELRMERCINLKILPSGINLAS 896
||||
Db 834 GCSR-------------------------------------------------------- 837
Qy 897 LKFLGFSGCPQLSTFPDISTNIEVLYLNETAIEEVPCWVEKFTRLGVLEMKGCNKLKFVS 956
| |||||||:| |||: | |||:|| :|||:||| | | ||| |::|:
Db 838 -----------LRTFPDISTHITHLYLSGTGIEEIPCSIEKFSRLGSLHMNGCNNLEYVN 886
Qy 957 LNISKLKRLGRVELSD--CLNLDQEAL---KTYSDCLLKLSSEEVPSYFIHRTTVTSSFS 1011
||: ||| | |: || ||||||||| |||| | |||| ||||||| |||| || |
Db 887 LNLFKLKHLHEVDFSDCKCLNLDQEALFQKKTYSVCQLKLSGEEVPSYFTHRTTGTS--S 944
Qy 1012 SLTVPLLPSSLSQPFLQFTACLV--HTWDNMSEIDAMPSFTNRFWNSSDSYVQEQDFYG- 1068
|||:||| | :|| ||:| ||:| || | | | | |||| | |||
Db 945 SLTIPLLHSCISQSFLRFRACIVFDSDKDNESYSRCAFRFKGSFRNCSDSYNQAQDFCAV 1004
Qy 1069 -------TCTSDRHMLTLVYYIFLSRDRDILAQMNYTHVDVQLDIKNRSPSEFKEWGIRL 1121
: | :| | | : | :||: :|::: | :: | ||||:
Db 1005 TDDYKIRSYKKDGCLLVLDYQM-----SQIPLEMNFDGLDLKIHIDYCRSAKIKGWGIRI 1059
Instant SEQ ID NO: 2
Length: 1207
Score: 3602.00 Matches: 740
Percent Similarity: 74.6% Conservative: 111
Best Local Similarity: 64.9% Mismatches: 189
Query Match: 61.0% Indels: 100
Gaps: 11
US-18-673-456-2 (1-3384) x PCT-US19-22601A-3 (1-1207)
Qy 1 ATGGCTCTCTCATTAGCTTCTTCTTCTTCCTCTTCTCGCACTTGGGTGTACGATGTTTTC 60
|||||||||||||||||||||||| |||||| |||||||||:::||||||||||||
Db 1 MetAlaLeuSerLeuAlaSerSerProSerSerCysArgThrTrpLeuTyrAspValPhe 20
Qy 61 CCGAGCTTCAGTGGGGCAGACGTCCGTGTTACTTTCCTCAGCCACTTTCGAAAGGAGCTT 120
||||||||||||||| ||||||||||||||||||||||||||| ||||||
Db 21 ProSerPheSerGlyValAspValArgValThrPheLeuSerHisLeuLeuLysGluPhe 40
Qy 121 GACCGGAAACTGATCATTTCTTTCAAAGACAACGAGATAGAGAGAAGCCGGTCACTGGAT 180
|||:::||||||||| :::|||||||||||||||||||||||||||||||||||||||
Db 41 AspLysLysLeuIleThrAlaPheLysAspAsnGluIleGluArgSerArgSerLeuAsp 60
Qy 181 CCAGAGCTTAAACAAGCCATAAGAGATTCGAGGATCGCCGTGGTTATCTTCTCTGAAAAC 240
|||||||||||||||||||||:::||||||||||||||||||||||||||||||:::|||
Db 61 ProGluLeuLysGlnAlaIleLysAspSerArgIleAlaValValIlePheSerGlnAsn 80
Qy 241 TACGCATCTTCAAGCTGGTGTCTAAATGAGTTGCTGGAGATCGTCAAGTGCAGGGATGAG 300
||||||||||||||||||||||||||||||||||||||||||||||||
Db 81 TyrAlaSerSerSerTrpCysLeuAsnGluLeuLeuGluIleValLys------------ 96
Qy 301 TGTGGTCAAATGGTGATACCTGTTTTCTACCGTTTGGATCCTTCCCATGTCAGGAAACAA 360
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 97 CysGlyGlnMetValIleProValPheTyrArgLeuAspProSerHisValArgLysGln 116
Qy 361 ACTGATGACTTTGGACAGATCTTTGAAAAAACATGCCACAACGAAACGGAGGAGGTGAAA 420
||| |||||||||::: ||||||:::||||||:::|||:::||||||||| |||
Db 117 ThrGlyAspPheGlyLysPhePheGluGluThrCysAsnAsnLysThrGluGluGluLys 136
Qy 421 ATGCAATGGAGGAGAGCTTTGACAAATGTAGCTAATATCACCGGATTCCATTCTGTAAAC 480
:::|||||||||||||||||||||:::||||||||| |||:::||||||||||||
Db 137 IleGlnTrpArgArgAlaLeuThrAspValAlaAsnThrLeuGlyTyrHisSerValAsn 156
Qy 481 TGGGGTAACGAAGCAAAAATGATTGAAGAAATTGTCAGTGATGTTTTGGAGAAACTACTT 540
||||||||||||||| ||||||||||||||| :::|||||||||:::|||||||||
Db 157 TrpGlyAsnGluAlaAlaMetIleGluGluIleAlaAsnAspValLeuAspLysLeuLeu 176
Qy 541 TTAACTCCATCGAAGGATTCTGAGAACTTTGTGGGCATCGAAGGTCATATCGCAGATCTG 600
|||||| ||||||||||||||||||||||||||||||||| |||:::||| |||
Db 177 LeuThrSerSerLysAspSerGluAsnPheValGlyIleGluAspHisValAlaLysLeu 196
Qy 601 AGTGTATTGCTGGAGTTGGAATTAGAGGAAGTGAGGATGGTTGGTTTATGGGGTGCTTCA 660
||||||||||||:::|||::: ||||||||||||||||||||||||||||||:::|||
Db 197 SerValLeuLeuGlnLeuAspAlaGluGluValArgMetValGlyLeuTrpGlySerSer 216
Qy 661 GGGATTGGCAAGACTACAATTGCAAGAGTTCTGTTCAACCGACTTTCTCGACACTTTCAA 720
|||||||||||||||||||||||||||||||||||| ||||||||||||||||||:::
Db 217 GlyIleGlyLysThrThrIleAlaArgValLeuPheGlnArgLeuSerArgHisPheArg 236
Qy 721 GGTAGCATTTTCATTGACAGGGCTTTCATATCTAAGAGTACTGAAGTTTTCAGCAGAGCT 780
|||||||||||||||||||||||||||:::||||||::: |||:::||| |||
Db 237 GlySerIlePheIleAspArgAlaPheValSerLysThrMetGluIlePheLysAlaAla 256
Qy 781 AATCCGGGCGACTACAGCATGATGTTGCATTTGCAATCGAGATTCCTATCGAAAATTCTA 840
|||||| ||||||:::||| |||||||||||| |||||||||:::||||||
Db 257 AsnProAspAspTyrAsnMetLysLeuHisLeuGlnArgAsnPheLeuSerGluIleLeu 276
Qy 841 GGGAAAAATGACATAGAGATAAGTCAATTAGGCGAGTTAGCAGGGAGGCTGAAGCACCAT 900
|||||| ||||||:::|||::: ||| ::: |||||||||:::
Db 277 GlyLysGlyAspIleLysIleAsnHisLeuSerAlaValGlyGluArgLeuLysAsnGln 296
Qy 901 AAAGTTCTTATTTTCATTGATGATTTCAACGACCAAGTGGTGCTAGATTCCTTGGTTGGT 960
|||||||||||||||||||||||||||:::|||||||||||||||::::::|||||||||
Db 297 LysValLeuIlePheIleAspAspPheAspAspGlnValValLeuGluAlaLeuValGly 316
Qy 961 CAAACTCAATGGTTTGGAAGTGGGAGCAGAATCGTTGTGGTTACAAATGATAAGCATCAT 1020
|||||||||||||||||||||||||||||||||||||||||||||||||||||| :::
Db 317 GlnThrGlnTrpPheGlySerGlySerArgIleValValValThrAsnAspLysGlnTyr 336
Qy 1021 TTACGATCCCATGGGATTGATCACATTTACGAGGTTTGTCTCCCATCTCAAAAGCTAGCT 1080
||||||:::|||||||||:::|||||||||:::||||||||||||::::::|||||||||
Db 337 LeuArgAlaHisGlyIleAsnHisIleTyrLysValCysLeuProThrLysLysLeuAla 356
Qy 1081 GTTGAGATGTTTTGTCGATCTGCTTTCAACGAAAACTCTCCACCTGAAGGTTTTGAGGTG 1140
||||||||| ||||||||||||||| ::: ::: |||||||||||||||
Db 357 ValGluMetLeuCysArgSerAlaPheArgLysLysAlaAlaProGluGlyPheGluGlu 376
Qy 1141 CTTGTAGCTGAAATTACAAGACTTGCGGGTAGTCTTCCTTTAGGTCTTAGTGTTTTGGGT 1200
|||||||||::::::||| |||||||||||||||||||||||||||:::|||||||||
Db 377 LeuValAlaLysValThrGlyLeuAlaGlySerLeuProLeuGlyLeuAsnValLeuGly 396
Qy 1201 TCATCTCTACGGGGGAGGGATAAAGAGTACTGGGTAGATTTGTTGCCAACGCTTCAGACT 1260
||| |||||||||||||||||||||||||||:::|||||||||||| ||||||
Db 397 SerTyrLeuArgGlyArgAspLysGluTyrTrpMetAspLeuLeuProArgLeuGlnAsn 416
Qy 1261 GGTATAGATGGGAAAATCGAGAGAACATTGAAAGTCAGCTACGAAGGATTAAGTAGCAAA 1320
|||:::|||||||||||||||:::||||||:::|||||||||:::||||||:::|||:::
Db 417 GlyLeuAspGlyLysIleGluLysThrLeuArgValSerTyrAspGlyLeuThrSerGlu 436
Qy 1321 GGAGATAAAACGCTATTTCGACATATCGCATGCCTTTTCAATGGTGAAAAAGTCACATAC 1380
|||||| ||||||||||||||||||||||||||| |||||||||||||||
Db 437 GluAspLysAlaLeuPheArgHisIleAlaCysLeuPheGlnTrpGluLysValThrTyr 456
Qy 1381 CTAAAGTTGTTGCTCGCAGATAGTGACTTGAGTGTTAATGTTGGGATGGAAAACCTAGCT 1440
|||||||||||||||||||||||| ||||||||| ||||||:::||||||||||||
Db 457 LeuLysLeuLeuLeuAlaAspSerGlyLeuSerValThrValGlyLeuGluAsnLeuAla 476
Qy 1441 GATAAGTCCCTCATTCATGTAAGTCCGTGGGGTCATGTGGAGATGCACCGTTTGCTACAA 1500
||||||||||||||||||||| :::|||:::|||||||||||||||:::
Db 477 AspLysSerLeuIleHisValArgGlu---AspTyrValLysMetHisArgLeuLeuGlu 495
Qy 1501 GAGATGGGTAGAAGTATTGTTCGTCTTGACGAGCCTGGGACACGAGAATTTCTTATGGAC 1560
|||||||||||| ||||||||||||||||||||| ||||||||||||:::|||
Db 496 GluMetGlyArgArgIleValArgLeuAspGluProGluLysArgGluPheLeuValAsp 515
Qy 1561 TCACAAGATATATGTGATGTACTCAGTGATGGCACTGGGACTCAAAAGATATTAGGTATA 1620
:::|||||||||||||||||||||||| ||||||||| |||||||||||||||
Db 516 AlaGlnAspIleCysAspValLeuSerGlnAspThrGlyThrHisLysIleLeuGlyIle 535
Qy 1621 TCACTGGACACCGATGAGATTGATGAGTTGCATATACATGAGAACGCCTTCACAGGGATG 1680
|||::: ||||||||||||||||||::::::||||||||||||||| ||||||
Db 536 LysLeuAsnIleAspGluIleAspGluLeuAsnValHisGluAsnAlaPheLysGlyMet 555
Qy 1681 CGTAATCTCCGTTTCCTAAAATTTTACTCGAGA------------TATGGAGTTGGCACA 1728
||||||||||||||||||::: :::|||::: :::|||
Db 556 ArgAsnLeuArgPheLeuGluIleHisSerGlnAsnArgHisGluPheGlyAsnGluGlu 575
Qy 1729 GTGAAATTGCACATACCCAAAAGCTTCGACTATTTGCCGCTTAAACTGAAATCATTGTGT 1788
|||::::::|||:::|||::::::||||||||||||||| ||||||||| |||
Db 576 ValArgIleHisLeuProGluAsnPheAspTyrLeuProProLysLeuLysIleLeuAsp 595
Qy 1789 TGGCCGAGATATCCAATGAGATGTCTTCCTTCTACATTTCGTCCTGAAAACCTCACCGAG 1848
||| |||||||||||||||||||||||| |||||||||||| ||| :::
Db 596 TrpTyrGluTyrProMetArgCysLeuProSerLysPheArgProGluLysLeuValLys 615
Qy 1849 CTTAAAATGCAGGGTAGCAAGCTCGAGAAGCTGTGGGAAGGGGTTGTGTCGCTTCCATGT 1908
||||||||| |||||||||||||||||||||||||||:::||||||||| |||
Db 616 LeuLysMetValAsnSerLysLeuGluLysLeuTrpGluGlyIleValSerLeuThrCys 635
Qy 1909 CTCAAGAAGATGGATTTGAGTTTTTCTCACAACCTGATAGAAATGCCAGATCTTTCAAAG 1968
||||||||||||::::::||| ||| ||||||||||||||||||||||||||||||
Db 636 LeuLysLysMetAsnMetSerGlySerGlnAsnLeuIleGluMetProAspLeuSerLys 655
Qy 1969 GCCACCAATCTGGAGACACTTGATCTTGACGATTGCTATAGTTTGGTGAAGCTTCCTTCC 2028
||||||||||||||||||||| |||:::||||||:::|||||||||||||||||||||
Db 656 AlaThrAsnLeuGluThrLeuTyrLeuGluAspCysPheSerLeuValLysLeuProSer 675
Qy 2029 TCTATCCCACATCCCAACAAACTGATGAGATTGCACCTGATGAATTGTCAAAATCTGGAG 2088
|||||||||||||||||||||||| ||| ||| ||||||:::|||:::|||
Db 676 SerIleProHisProAsnLysLeuThrThrLeuIleLeuLysAsnCysArgAsnValGlu 695
Qy 2089 ATTATTCCAATTGGCATTAGCCTCAAATCTCTCGAAGAGCTATATCTCGATGGATGCTCA 2148
||||||||||||||||||||||||||||||::: ||| ||||||||||||
Db 696 ThrIleProIleGlyIleSerLeuLysSerLeuLysAsnLeuArgThrAspGlyCysSer 715
Qy 2149 CGGTTGAGGAATTTTCCTCAAATCTTAACCAACATCGAAACGATCAATATAGACGAAACA 2208
|||:::||| |||||||||||| ::: |||||| ::: ||| |||
Db 716 ArgMetArgThrPheProGlnIleSerSerThrIleGluAspValTyrIleGlyAlaThr 735
Qy 2209 CGCATTGAAGAAATCCCTTCAAATTTGCATCTGGAGGATGGGCGTCTCAGGGAACTCAGT 2268
|||||||||||||||||||||||| ||| ||| :::
Db 736 SerIleGluGluIleProSerAsnLeuSerLeuCysPheGluAsnLeuHisThrPheThr 755
Qy 2269 ATGCAAAACGCAAAGAGTAAAAAACCATGGGAAAGGGTGAAGCCGCTTATTCTACTCACG 2328
||| ::: |||||| ||||||||||||::: ||| |||||||||
Db 756 MetHisSer------ProLysLysLeuTrpGluArgValGlnLeuLeuThrLeuLeuThr 773
Qy 2329 GCGATCATGTCTCCACCTTTGAAGTATTTGTATCTATCGGATATGCCAACCTTGGTGGAG 2388
|||||||||||| ||| |||||| ||||||||| ||| |||||||||
Db 774 ThrIleMetSerProSerLeuTrpTyrLeuAspLeuSerAspAsnProGlyLeuValGlu 793
Qy 2389 CTCCCTTCTTCATTTCAGAATCTCCATCAACTGACGCATTTGGAAATTACGGACTGCATA 2448
|||||||||||||||:::||||||||| ||| ||||||||| :::|||:::
Db 794 LeuProSerSerPheLysAsnLeuHisAsnLeuArgArgLeuGluIleArgAsnCysVal 813
Qy 2449 AATCTGGAGACTCTTCCCACCGGAATCAACCTCCGTTCTCTCGATGATCTCTATCTCAAT 2508
||||||||||||||||||||||||||||||||| |||||| ||| |||
Db 814 AsnLeuGluThrLeuProThrGlyIleAsnLeuGlySerLeuLysIleLeuAspLeuArg 833
Qy 2509 GGATGCTCAAGGTTGAGTACTTTTCCTGATATCTCAACCAACATCAAAGTCCTCAGCCTA 2568
||||||||||||
Db 834 GlyCysSerArg------------------------------------------------ 837
Qy 2569 ATCGCAACAGCCATTGAAGATGTTCCTGGGTCAGTTGATAAATTCTCTGTGCTTGAAGAG 2628
Db 837 ------------------------------------------------------------ 837
Qy 2629 CTAAGGATGGAAAGATGCATAAATCTGAAGATTCTTCCCTCTGGTATCAACCTCGCATCC 2688
Db 837 ------------------------------------------------------------ 837
Qy 2689 CTCAAATTCTTAGGTTTCAGTGGATGCCCACAGTTGAGTACTTTTCCAGATATCTCTACC 2748
||| |||||||||||||||||||||
Db 838 ---------------------------------LeuArgThrPheProAspIleSerThr 846
Qy 2749 AACATTGAAGTGCTCTATCTAAACGAAACAGCCATTGAAGAGGTTCCTTGTTGGGTTGAG 2808
:::||| |||||||||::: ||| |||||||||:::|||||| :::|||
Db 847 HisIleThrHisLeuTyrLeuSerGlyThrGlyIleGluGluIleProCysSerIleGlu 866
Qy 2809 AAATTCACCAGGCTTGGAGTCTTGGAGATGAAGGGATGCAATAAATTAAAATTTGTAAGC 2868
||||||:::||||||||| ||| ||| ||||||||| |||::::::|||:::
Db 867 LysPheSerArgLeuGlySerLeuHisMetAsnGlyCysAsnAsnLeuGluTyrValAsn 886
Qy 2869 TTAAACATTTCTAAACTCAAACGTCTTGGGAGAGTTGAGTTATCAGAC------TGCTTA 2922
||||||::: ||||||||| ||| |||::: |||||| ||||||
Db 887 LeuAsnLeuPheLysLeuLysHisLeuHisGluValAspPheSerAspCysLysCysLeu 906
Qy 2923 AACTTGGATCAAGAAGCTCTG---------AAAACATATTCAGATTGTCTACTGAAGTTG 2973
||||||||||||||||||||| |||||||||||| ||| |||||||||
Db 907 AsnLeuAspGlnGluAlaLeuPheGlnLysLysThrTyrSerValCysGlnLeuLysLeu 926
Qy 2974 TCAAGTGAAGAAGTGCCTTCATATTTCATTCACCGTACTACGGTAACCTCCTCCTTCTCC 3033
||| ||||||||||||||||||||| |||||||||||| |||||| |||
Db 927 SerGlyGluGluValProSerTyrPheThrHisArgThrThrGlyThrSer------Ser 944
Qy 3034 TCTTTAACCGTCCCTCTACTTCCCAGCTCTCTCTCGCAGCCATTCCTCCAATTCACGGCT 3093
|||||||||:::||||||||| ||| :::|||||| ||||||:::||| |||
Db 945 SerLeuThrIleProLeuLeuHisSerCysIleSerGlnSerPheLeuArgPheArgAla 964
Qy 3094 TGCCTTGTG------CATACTTGGGACAATATGTCAGAAATTGATGCTATGCCTAGTTTT 3147
|||:::||| |||||| ||| |||
Db 965 CysIleValPheAspSerAspLysAspAsnGluSerTyrSerArgCysAlaPheArgPhe 984
Qy 3148 ACAAACAGATTTTGGAACAGCTCTGATTCCTATGTTCAGGAACAAGACTTCTACGGA--- 3204
||| ||| |||||||||||| ||| |||||||||
Db 985 LysGlySerPheArgAsnCysSerAspSerTyrAsnGlnAlaGlnAspPheCysAlaVal 1004
Qy 3205 ---------------------ACATGTACGAGTGATAGGCATATGTTAACATTGGTCTAT 3243
::: ||| :::||| ||| |||
Db 1005 ThrAspAspTyrLysIleArgSerTyrLysLysAspGlyCysLeuLeuValLeuAspTyr 1024
Qy 3244 TATATCTTTCTAAGCAGAGATAGGGATATCCTAGCTCAAATGAACTACACGCATGTCGAT 3303
::: ||| :::||||||::: :::|||
Db 1025 GlnMet---------------SerGlnIleProLeuGluMetAsnPheAspGlyLeuAsp 1039
Qy 3304 GTGCAGCTTGATATTAAGAATCGTAGTCCCTCTGAGTTCAAAGAGTGGGGTATACGACTA 3363
::::::::: ||| :::::: ||| ||||||||||||:::
Db 1040 LeuLysIleHisIleAspTyrCysArgSerAlaLysIleLysGlyTrpGlyIleArgIle 1059
No genes are described in the art that have a coding sequence with 95% sequence identity to instant SEQ ID NO: 2 or that encode an amino acid sequence with 95% sequence to instant SEQ ID NO: 3 or that comprise positions 15 to 195, positions 209 to 432, and positions 540 to 1023 of SEQ ID NO: 3, or a sequence with 95% identity to positions 540 to 1023 of SEQ ID NO: 3. The specification fails to make up for the lack of knowledge on the art.
The structural features that provide resistance to Albugo candida in genes with a coding sequence with 95% identity to SEQ ID NO: 2 or encoding an amino acid sequence with 95% identity to SEQ ID NO: 3 or encoding an amino acid sequence that comprises positions 15 to 195, positions 209 to 432, and positions 540 to 1023 of SEQ ID NO: 3, or a sequence encoding an LRR domain with 95% identity to positions 540 to 1023 of SEQ ID NO: 3, from other proteins with the required sequence identity, even when limited to sequences comprising a thymine at a position corresponding to position 2240 of SEQ ID NO: 2, are not described in the specification.
Hence, Applicant has not, in fact, described nucleic acids that encode a protein that confers resistance to Albugo candida over the full scope of the claims, and the specification fails to provide an adequate written description of the claimed invention. Therefore, given the lack of written description in the specification with regard to the structural and functional characteristics of the claimed compositions, Applicant does not appear to have been in possession of the claimed genus at the time this application was filed.
Claims 2 & 4, drawn to the plant wherein the gene comprises the nucleotide sequence having the coding sequence of SEQ ID NO: 2 or as comprised in the genome of a seed deposited with the NCIMB under NCIMB 43737 are supported by Written Description.
Applicant urges that because the specification teaches that all susceptible variants of the gene in a F3 population of a cross with a susceptible parent line had a cytosine on position 45 of SEQ ID NO: 5 & 6 corresponding to position 2240 of SEQ ID NO: 2, then a gene which encodes an amino acid sequence having 95% identity to SEQ ID NO: 3 and comprises a thymine at position 2240 of SEQ ID NO: 2 is exemplified to be the gene that confers Albugo candida resistance to a Raphanus sativus plant. (Remarks, page 18, paragraph 9-page 19, paragraph 2).
This argument is unpersuasive, because the susceptible and resistant gene variants assayed in a single F3 family cross do not describe genes that confer resistance over the full scope of all possible genes encoding proteins with an amino acid sequence with as little as 85% identity to SEQ ID NO: 3 (eg claim 1, option d) or even as little as 40% sequence identity to the 1128 amino acid long protein of SEQ ID NO: 3 (claim 1, option g). Moreover, the variants themselves are not provided as examples beyond the description of a single variant nucleotide. The identity of a single base residue, absent a mechanism of the effect of this residue change, is not a structural feature sufficient to demonstrate that Applicant was in possession of the full genus of all encompassed genes encoding proteins that confer resistance to Albugo candida.
Applicant urges that the specification describes that the gene can comprise a sequence encoding the specific amino acids required by limitations e in claims 1, 18, & 22 and limitation v in claim 16 and limitation 5 in claim 17, and so these limitations have support in the specification as filed (Remarks, page 19, paragraph 3).
This argument is unpersuasive, because the claims encompass more than option e in claims 1, 18 & 22, option v in claim 16, and option 5 in claim 17. Applicant has not described the structural features of genes that confer resistance over the full scope of all possible genes encoding proteins with an amino acid sequence with as little as 85% identity to SEQ ID NO: 3 (eg claim 1, option d) or even as little as 40% sequence identity to the 1128 amino acid long protein of SEQ ID NO: 3 (eg claim 1, option g) nor has applicant provided examples of genes conferring resistance over the full scope of the claims.
Scope of Enablement
Claims 1 & 11-22 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 a gene encoding a protein which confers resistance to Albugo candida wherein the coding sequence of the gene is SEQ ID NO: 2 and the amino acid encoded is SEQ ID NO: 3 and the gene is as comprised in the genome of NCIMB deposit number 43737, does not reasonably provide enablement for any gene with a coding sequence with 95% identity to SEQ ID NO: 2 or encoding an amino acid sequence with 95% identity to SEQ ID NO: 3 or encoding an amino acid sequence that comprise positions 15 to 195, positions 209 to 432 or a sequence with 95% identity to positions 540 to 1023 of SEQ ID NO: 3. 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 the invention commensurate in scope with these claims.
Due to Applicant' s amendment of the claims, the rejection is modified from the rejection as set forth in the Office action mailed 11/14/2025 as applied to claims 1, 3, & 11-22. Applicant' s arguments filed 2/12/2026 have been fully considered but they are not persuasive.
Claims 1, 3, 11-12 & 14-22 are drawn to or require a Raphanus sativus plant comprising a gene encoding a protein conferring resistance to Albugo candida comprising a nucleotide sequence having a coding sequence of at least 95% sequence identity to SEQ ID NO: 2 or encoding a protein having an amino acid sequence of at least 95% sequence identity to SEQ ID NO: 3 or comprising a nucleotide sequence encoding at least the amino acids at position 15 to position 195, position 209 to position 432, and position 540 to position 1023 of SEQ ID NO: 3, or a nucleotide sequence encoding an LRR domain having at least 95% sequence identity to the amino acids at position 540 to 1023 of SEQ ID NO: 3. Claim 13 requires that the gene is introgressed from NCIMB 43737. Because the process of introgression may take multiple generations and the gene may have undergone crossing over or spontaneous mutation, a plant encompassed by claim 13 will not necessarily comprise a nucleotide sequence with 100% sequence identity to SEQ ID NO: 2 or encoding an amino acid sequence with 100% identity to instant SEQ ID NO: 3.
Nucleotide sequences encoding a protein having an amino acid sequence of at least 95% sequence identity to the 1128 amino acid-long SEQ ID NO: 3 encompass sequences with 56 substitutions relative to SEQ ID NO: 3. Nucleotide sequences having a coding sequence of at least 95% sequence identity to the 3384 nucleotide-long SEQ ID NO: 2 encompass sequences with 169 substitutions relative to SEQ ID NO: 2, including sequences where every substitution is in a position that results in a different amino acid. This would result in an amino acid sequence with 169 substitutions relative to instant SEQ ID NO: 3, or 85% sequence identity to SEQ ID NO: 3.
A nucleotide sequence encoding an LRR domain having at least 95% sequence identity to the amino acids at position 540 to 1023 of SEQ ID NO: 3 encompasses sequences with 24 substitutions relative to the 483 amino acid long segment. Such a sequence would only need to share 459 amino acids with the 1128 amino acid long protein of SEQ ID NO: 3, or 40% sequence identity.
Similarly, a sequence encoding the amino acids at position 15 to position 195 of SEQ ID NO: 3, the amino acids at position 209 to position 432, and the amino acids at position 540 to 1023 of SEQ ID NO: 3 encompasses sequences that share only 886 amino acids with SEQ ID NO: 3 (180 + 223 + 483), which represents 78.5% sequence identity to SEQ ID NO: 3.
The amended claims require that the nucleotide sequence of the gene with 95% sequence identity to SEQ ID NO: 2 or encoding a protein with 95% sequence identity to SEQ ID NO: 3 or encoding an LRR domain having 95% sequence identity to positions 540-1023 of SEQ ID NO: 3 furthermore comprise a thymine at a position corresponding to position 2240 of SEQ ID NO: 2. Because the nucleotides adjacent to the position corresponding to position 2240 of SEQ ID NO: 2 are not constrained, this limitation to the nucleotide sequence does not require any specific amino acid sequence at the position.
The instant specification teaches a single example of a genomic nucleic acid sequence (SEQ ID NO: 1) with a single coding sequence (SEQ ID NO: 2) encoding one protein with an amino acid sequence (SEQ ID NO: 3). The instant specification has not taught any variants of the provided nucleic and amino acid sequences that do not have 100% sequence identity to SEQ ID NOs: 1 & 2 or 3 respectively or that comprise positions 15 to 195, 209 to 432, and/or 540 to 1023 of SEQ ID NO: 3 but do not comprise SEQ ID NO: 3 in its entirety.
The specification teaches that the protein of SEQ ID NO: 3 is a TIR-NBS-LRR protein comprising a Toll/Interleukin-1 receptor (TIR), nucleotide binding site (NBS) domain, and Leucine Rich Repeat (LRR) domain (paragraph [0014]). The specification teaches that TIR-NBS-LIRR proteins are R-proteins providing resistance to a wide array of pathogens and abiotic stress factors and that the LRR domain is involved in protein-protein interaction with the pathogen and assumed to play a key role in providing resistance (paragraph [0014]). The specification teaches that position 15-192 of SEQ ID NO: 3 is a TIR domain, positions 209-432 of SEQ ID NO: 3 define an NBS domain, and positions 540-1023 define the LRR domain of SEQ ID NO: 3 (paragraph [0028]). A Raphanus sativus plant comprising the gene of the invention has been deposited under accession number 43737 at NCIMB (paragraph [0035]). The specification teaches radish plants that comprise this gene with resistance to 3 isolates of Albugo candida (paragraph [0079-0081], table 3).
The specification describes that in one F3 population crossed with a susceptible parent line, all susceptible variants of the gene of the invention had a cytosine on position 2240 of SEQ ID NO: 2 while all the resistant forms carried a thymine at this position (paragraphs [0084-0086]). Despite referring to gene variants, no variation in the gene other than this single SNP difference is described in the specification. No mechanism is described to account for the activity that results in resistance to Albugo candida.
TIR-NBS-LRR genes are involved in recognizing “species-specific” pathogens, and the LRR domain exhibits high diversity and has been associated with pathogen recognition (Priyamedha et al (2020) in Brassica Improvement. Wani et al (eds) pages 147-157, available online 3/14/2020, hereafter Priyamedha: Page 149, paragraph 1-page 150, paragraph 1). Priyamedha teaches resistance loci for Albugo candida in Brassica crops, including a CC-NB-LRR R gene (page 152, paragraph 4).
Xu et al (2022) Horticulturae. 8. 1164. Published 12/8/2022, after the effective filing date of the instant application; hereafter Xu) teaches a total of 187 NBS-LRR genes in radish (abstract) and teaches that the TIR domain plays a crucial function in pathogen recognition through NADase activity (page 1, paragraph 1). In addition to structural differences, NBS-LRR genes in radish can have tissue-specific expression, which indicates that some NBS-LRR genes play crucial roles in tissue-specific disease resistance (page 9, paragraph 2).
Sequences with at least 95% identity to SEQ ID NO: 2 or 3 are not described in the art, although Engelen et al (WO 2019/178554 filed 3/15/2019) teaches a Brassica napus protein sequence with 61% sequence identity to instant SEQ ID NO: 3 or potentially 74% sequence similarity to the amino acid sequence encoded by instant SEQ ID NO: 2 that provides clubroot resistance in Brassica napus and comprises a Toll-Interleukin receptor domain (Engelen SEQ ID NO: 3, see alignments above; paragraphs [12 & 31]).
Given NBS-LRR genes’ pathogen specific recognition based on the TIR and LRR domains and on expression in specific tissues, and given the lack of guidance in the in instant specification regarding what amino acids or expression profiles may be important in providing Albugo candida resistance, one of ordinary skill in the art would not readily recognize which sequences with 95% identity to SEQ ID NO: 2 or encoding an amino acid sequence with 95% identity to SEQ ID NO: 3 or encoding an amino acid sequence that comprise positions 15 to 195, positions 209 to 432, and positions 540 to 1023 of SEQ ID NO: 3 or a sequence with 95% identity to positions 540 to 1023 of SEQ ID NO: 3 encoding an LRR domain, or a sequence introgressed from a plant representative seeds of which are deposited as NCIMB 43737 would confer the required resistance. One of ordinary skill in the art would be required to conduct undue experimentation to determine which encompassed sequences, if any, provide resistance to Albugo candida. Thus, the instant disclosure does not reasonably enable one of ordinary skill in the art to make the gene of the instant invention over the full scope of claimed genus of sequences.
Claims 2 & 4, drawn to the plant wherein the gene comprises the nucleotide sequence having the coding sequence of SEQ ID NO: 2 or as comprised in the genus of a seed deposited with the NCIMB under NCIMB 43737 are Enabled.
Applicant urges that because the claims require the sequence encoding the protein conferring resistance to Albugo candida to have a thymine at position 2240 of SEQ ID NO: 2, no undue experimentation is necessary to practice the underlying invention and the inventions of claim 1, 16-18, 22, and all dependent claims are sufficiently enabled (Remarks, page 20, paragraph 9-page 21, paragraph 3).
This argument is unpersuasive, because the invention of the instant claims is not limited to only Raphanus sativus plants descended from the singular backcross described in Example 3 of the specification, and so the single SNP variation provided by the specification does not meaningfully reduce the amount of experimentation required for one of skill in the art to determine which encompassed sequences would confer resistance to Albugo candida.
Because of degeneracy in the genetic code, sequences with a thymine at position 2240 of SEQ ID NO: 2 may not have the same amino acid at the corresponding amino acid position of SEQ ID NO: 3. Alternatively, sequences with a nucleotide other than a thymine at position 2240 of SEQ ID NO: 2 could conceivably have the same amino acid sequence or one with a function identical to SEQ ID NO: 3. The claims encompass genes encoding proteins with an amino acid sequence with as little as 85% identity to SEQ ID NO: 3 (eg claim 1, option d) or even as little as 40% sequence identity to the 1128 amino acid long protein of SEQ ID NO: 3 (claim 1, option g). The gene variants of example 3 themselves are not provided as examples beyond the teaching of a single variant nucleotide. Knowledge of the identity of a single base residue, absent a mechanism of the effect of this residue change, does not sufficiently enable of ordinary skill in the art to generate Raphanus sativus plants resistant to Albugo candida over the full scope of the nucleotide sequences of the claims.
Claim Rejections - 35 USC §§ 102, 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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, 2, 4, 11, 13, 14 & 15 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 Morrison. 1942. USDA Inventory No. 130. Plant Material Introduced by the Division of Plant Exploration and Introduction, Bureau of Plant Industry, January 1 to March 31, 1937. (relevant pages 1-2 & 42 provided. Issued May 1942, hereafter Morrison) taken with the evidence of the USDA GRIN details page for accession PI 121012 (last updated 2/24/2025, hereafter PI 121012 record).
This is a new rejection.
Claims 1, 2, 4, 11, 13, 14 & 15 are drawn to an agronomically elite Raphanus sativus plant, or seed, or propagation material, comprising a gene encoding a protein which confers resistance to Albugo candida having a nucleotide sequence encoding the amino acid sequence of SEQ ID NO: 3.
Morrison teaches a Raphanus sativus accession numbered 121012 number 587 described as a small red radish (page 42, left column, entry 15).
The PI 121012 record provides evidence that the accession was received as seed and has an uncertain improvement status.
Applicant’s response to the request for information under 37 CRF 1.105 filed 7/20/2026 describes the ancestor of NCIMB 43737 from which resistance to Albugo candida is derived comes from a USDA accession designated PI 121012 (page 2, sections i-ii).
The instant specification defines “agronomically elite” as a plant that "as a result of human intervention comprises an accumulation of distinguishable and desirable agronomic traits which allow a producer to harvest a product of commercial significance (paragraph [0045])." The PI 121012 record of uncertain improvement status reads on the broadest reasonable interpretation of this requirement, because the accession produces small red radishes.
Thus, at least some of the plants of Raphanus sativus accession 121012 disclosed by Morrison, which was received as seed, are agronomically elite Raphanus sativus plants comprising the gene having the coding sequence of SEQ ID NO: 2 and encoding the protein of amino acid sequence of SEQ ID NO: 3 conferring resistance to Albugo candida of the instant invention (claims 1, 2, 14). Some of the plants of this line, through random statistical combination of alleles during recombination, would comprise the gene homozygously (claim 11). Seeds inherently comprise cotyledon, meristematic cell, embryo etc. which would be suitable for tissue culture (claim 15).
The plants of Raphanus sativus accession 121012 disclosed by Morrison would comprise the gene as comprised in the genome of NCIMB 43737 (claim 4) and would therefore read on a plant wherein the gene is introgressed from 43737 (claim 13), since the plant of claim 13 is claimed as a product-by-process and requires no additional patentably distinct features.
Therefore, claims 1, 2, 4, 11, 13, 14, & 15 are anticipated by or obvious over Morrison.
Claim Rejections - 35 USC §§ 102, 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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) 1-2, 4, 11-20 & 22 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 Bonnet (1981) Cruciferae Newsletter. No. 6, 60 ref. 2. (available 1/1/1982, hereafter Bonnet).
Due to Applicant' s amendment of the claims, the rejection is modified from the rejection as set forth in the Office action mailed 11/14/2025 as applied to claims 1-4, 11-20 & 22. Applicant' s arguments filed 2/12/2026 have been fully considered but they are not persuasive.
Claim(s) 1-2, 4, 11-20 & 22 are drawn to a Raphanus sativus plant, seed, propagation material, or a method of selecting or producing such a plant, comprising a gene encoding a protein which confers resistance to Albugo candida wherein the gene comprises a nucleotide sequence encoding a protein having an amino acid sequence of SEQ ID NO: 3.
Bonnet teaches plants of a round scarlet radish variety, Rubiso, with resistance to Albugo candida (page 60, paragraph 2). Bonnet teaches a cross between resistant plant Rubiso 2 and a susceptible line and teaches progeny that are selfed, F1, F2, F3, and backcross 1 generations (page 60, paragraph 3-4). Bonnet teaches that segregation analysis of the progeny of Rubiso 2, which reads on genetic analysis, suggests that the resistance is from a single dominant gene and teachings obtaining homozygous resistant lines (page 60, paragraphs 3-4).
Although the art is silent regarding the presence or absence of a nucleic acid encoding a protein with 95% sequence identity to SEQ ID NO: 3 or having the coding sequence of SEQ ID NO: 2, Rubiso plants with white rust resistance appear to be radish plants within the scope of the claims. The instant specification defines agronomically elite as having a genotype that as a result of human intervention comprises an accumulation of distinguishable and desirable agronomic traits which allow a producer to harvest a product of commercial significance (paragraph [0045]). Under this definition, the white rust resistant Rubiso radish plants of Bonnet read on the Raphanus sativus plant of instant claims 1-2. The white rust resistant plants and their progeny also comprise or make obvious a seed from such a plant or leaves or roots, which read on the seed of claim 14 and the propagation material of claim 15.
Bonnet teaches homozygous resistant lines from selfing Rubiso radish plants, which reads on having the gene homozygously present, instant claim 11. The F1 progeny between Rusbiso and the susceptible line read on a hybrid variety (instant claim 12).
The art is also silent as to whether the resistance gene found in Rubisco is as comprised in the genome of seed deposited under NCIMB 43737, so this plant reads on instant claim 4. Claim 13 is drawn to the plant wherein the gene is introgressed from a plant, representative seed of which has been deposited as NCIMB 43737. There is no reason why introgression of the single gene from NCIMB 43737 would impart structural characteristics to differentiate the resulting plant from any other introgression history that resulted in a plant with the same resistance gene. So, because art is silent as to whether the resistance gene found in Rubisco is as comprised in the genome of seed deposited under NCIMB 43737, instant claim 13 is obvious.
The method taught by Bonnet to produce crosses between Rubiso and a susceptible parent and then perform segregation analysis to determine that the resistance is controlled by a single gene reads on a method of instant claim 17, comprising crossing a first parent plant and a second parent plant to obtain an F1 population performing one or more rounds of selfing or crossing with a plant from the F1 population, and selecting from the resulting population a plant that comprises the gene that confers resistance. In order to determine the genetic source of the resistance, Bonnet had to identify, and select, plants that have resistance to perform the analysis. The cross between Rubiso and a susceptible parent also reads on a method for producing hybrid Raphanus sativus seed comprising crossing the first and second parent plant and harvesting the hybrid seed (instant claim 18). The F1 generation plants read on or make obvious the hybrid seed (instant claim 19) and the plant grown from the seed (instant claim 20). The method also reads on a method of claim 22 because introgressing a resistance gene reads on introducing a gene encoding a protein that confers resistance into the genome of the plant to produce a plant exhibiting resistance to Albugo candida.
Because there is no required order to steps in a method claim, Bonnet’s method to determine that resistance is due to a single gene reads on the method of claim 16, comprising selecting a plant that comprises the gene (because Bonnet had to select plants that had resistance and therefore comprised the gene) and identifying by genetic analysis the presence of the gene encoding the protein that confers resistance.
Thus, instant claims 1-2, 4, 11-20 & 22 are anticipated or obvious over Bonnet.
Applicant urges that the prior art must contain all of the elements of the claimed invention and must contain an enabling disclosure such that one of ordinary skill in the art could have combined the description in the prior art reference with his own knowledge to place himself in possession of the invention (Remarks, page 28, paragraph 2).
This argument is unpersuasive, because the Examiner cannot determine whether the prior art possesses the unrecited characteristics. The Examiner does not have sufficient facts to determine whether the Albugo candida resistance gene of the Raphanus sativus plants and seeds of the prior art are inherently the same as those being claimed. In addition, the Examiner cannot conclude that the claimed subject matter would have been obvious since it cannot be determined whether the plants differ. Both the resistance gene of Bonnet and that of the instant invention are described as dominant resistance genes to Albugo candida. Where the prior art product seems to be identical, except that the prior art is silent to a characteristic or property claimed, then the burden shifts to Applicant to provide evidence that the prior art would neither anticipate nor render obvious the claimed invention. See In re Best 195 USPQ 430, 433 (CCPA 1977).
Bonnet’s resistant Raphanus sativus plants and methods of using such plants read on the instant invention and would have enabled one of ordinary skill in the art to make and use such plants.
Applicant urges that all elements of the claims must be shown in the art and common sense cannot be used to supply a missing claim limitation (Remarks, page 28, paragraphs 3-4).
This argument is unpersuasive, because the rejection provided above does not rely on common sense to supply any claim limitations. The prior art describes plants and methods of using said plants that read on the Albugo candida resistant Raphanus sativus plants of the instant application but is silent with respect to the sequence of the gene conferring resistance. Where the prior art product seems to be identical, except that the prior art is silent to a characteristic or property claimed, then the burden shifts to Applicant to provide evidence that the prior art would neither anticipate nor render obvious the claimed invention. See In re Best 195 USPQ 430, 433 (CCPA 1977).
Applicant urges that a finding of obviousness requires a reason to combine known elements in the fashion claimed and a reasonable expectation of success in doing so. Applicant asserts that a reasonable expectation of success or a motivation to modify prior art teachings has not been shown (Remarks, page 28, paragraph 5-page 30, paragraph 2).
This argument is unpersuasive, because the rejection above does not require any combination of prior art elements. The rejection above is over the plants and methods of Bonnet, without modification, which one of ordinary skill in the art would have had a reasonable expectation of success in making and using as taught by Bonnet.
Applicant urges that because Bonnet does not teach the gene comprising a nucleotide sequence encoding a protein having the amino acid sequence of SEQ ID NO: 3, Bonnet fails to meet every element of the invention as claimed and does not anticipate or render obvious the instant claims (Remarks, page 30, paragraph 4-page 31, paragraph 3).
This argument is unpersuasive, and the rejection is made, because the Examiner cannot determine whether the prior art possesses the unrecited characteristics. The Examiner does not have sufficient facts to determine whether the Albugo candida resistance gene of the Raphanus sativus plants and seeds of the prior art are inherently the same. In addition, the Examiner cannot conclude that the claimed subject matter would have been obvious since it cannot be determined whether the resistance gene of the plants differ. Where the prior art product seems to be identical, except that the prior art is silent to a characteristic or property claimed, then the burden shifts to Applicant to provide evidence that the prior art would neither anticipate nor render obvious the claimed invention. See In re Best 195 USPQ 430, 433 (CCPA 1977).
Claim(s) 21 is rejected under 35 U.S.C. 103 as being unpatentable over Bonnet as applied to claims 1-2, 4, 11-20 & 22 above, and further in view of Van Andel (US 8,063,271 B2; patented 11/22/2011, hereafter Van Andel).
Due to Applicant' s amendment of the claims, the rejection is modified from the rejection as set forth in the Office action mailed 11/14/2025 as applied to claims 1-4 & 11-22. Applicant' s arguments filed 2/12/2026 have been fully considered but they are not persuasive.
Claim 21 is drawn to a method for selecting a plant that is resistant to Albugo candida comprising, identifying by genetic analysis the presence of a gene encoding a protein that confers resistance, selecting a plant that comprises the gene, further testing the selected plant for resistance to Albugo candida, and selecting the further tested plant that exhibits resistance.
Bonnet teaches a method of crossing the Albugo candida resistant Rubisco radish with another parent plant to produce offspring and performing genetic analysis to describe the genetic source of resistance as a single dominant gene.
Bonnet does not teach further testing the selected plant for resistance and selecting the further tested plants that exhibit resistance.
Van Andel teaches a method of backcrossing with a radish line comprising resistance to Albugo candida (Van Andel claim 13), comprising crossing a line with another line, selecting progeny plants that have a desired trait such as disease resistance, crossing the progeny, and selecting backcross progeny that have the desired trait and physiological and morphological characteristics. Van Andel teaches that backcrossing methods may include a test of the progeny to determine if desired characteristics have been transferred, including through genetically associated markers (column 16, lines 20-29). Although Van Andel suggests genetically associated markers are necessary for recessive alleles as opposed to dominant alleles, Van Andel also teaches that backcrossing methods are used in radish and that at the end of backcrossing, transferred genes will be heterozygous. Selfing after the backcross coupled with selection will produce homozygosity for the gene for which the improvement program was undertaken (column 16, lines 42-56).
Before the filing of the instant application, it would have been obvious to one of ordinary skill in the art to modify the method of Bonnet of backcrossing a resistant radish plant and a susceptible line with the method suggested by Van Andel to test progeny with genetic markers as well as screening for disease resistance and further selecting resistant offspring. One of ordinary skill in the art would have been motivated to use both testing for resistance and selecting a plant with the gene identified by genetic analysis, because backcrossed plants will be heterozygous. Testing by phenotype alone will not determine which selfed progeny are homozygous, which is desirable in a backcross program. One of ordinary skill in the art would have had reasonable expectation of success, because backcrossing in radish to incorporate disease resistance traits was routine prior to the filing date of the instant application. Therefore, claims 1-2, 4 & 11-22 are obvious over Bonnet and Van Andel.
Applicant urges that the prior art must contain all of the elements of the claimed invention and must contain an enabling disclosure such that one of ordinary skill in the art could have combined the description in the prior art reference with his own knowledge to place himself in possession of the invention (Remarks, page 28, paragraph 2).
This argument is unpersuasive, because the Examiner cannot determine whether the prior art possesses unrecited characteristics. The Examiner does not have sufficient facts to determine whether the Albugo candida resistance gene of the Raphanus sativus plants and seeds of the prior art are inherently the same. In addition, the Examiner cannot conclude that the claimed subject matter would have been obvious since it cannot be determined whether the plants differ. Both the resistance gene of Bonnet and that of the instant invention are described as dominant resistance genes to Albugo candida. Where the prior art product seems to be identical, except that the prior art is silent to a characteristic or property claimed, then the burden shifts to Applicant to provide evidence that the prior art would neither anticipate nor render obvious the claimed invention. See In re Best 195 USPQ 430, 433 (CCPA 1977).
With respect to enablement, one of ordinary skill in the art would have been enabled to follow the methods of Bonnet and Van Andel comprising the steps of testing for resistance and selecting a plant with the gene identified by genetic analysis in the backcrossing of radish. Genetic screening and resistance screening were routine methods in plant breeding prior to the filing of the instant application as well as being taught by Bonnet and Van Andel.
Applicant urges that all elements of the claims must be shown in the art and common sense cannot be used to supply a missing claim limitation (Remarks, page 28, paragraphs 3-4).
This argument is unpersuasive, because the rejection provided above does not rely on common sense to supply any claim limitations. The prior art describes plants and methods of using said plants that read on the Albugo candida resistant Raphanus sativus plants of the instant application but is silent with respect to the sequence of the gene conferring resistance. Where the prior art product seems to be identical, except that the prior art is silent to a characteristic or property claimed, then the burden shifts to Applicant to provide evidence that the prior art would neither anticipate nor render obvious the claimed invention. See In re Best 195 USPQ 430, 433 (CCPA 1977).
With respect to the combination of Van Andel and Bonnet, the motivation to combine testing for resistance and selecting a plant with the gene identified by genetic analysis, as presented above, is to select homozygous plants, because Van Andel teaches homozygous plants to be desirable for backcrossing.
Applicant urges that a finding of obviousness requires a reason to combine known elements in the fashion claimed and a reasonable expectation of success in doing so. Applicant asserts that a reasonable expectation of success or a motivation to modify prior art teachings has not been shown (Remarks, page 28, paragraph 5-page 30, paragraph 2).
This argument is unpersuasive, because the motivation to Bonnet and Van Andel to arrive at a method comprising both testing for resistance and selecting a plant with the gene identified by genetic analysis, as presented above, is to select homozygous plants. Van Andel teaches homozygous plants to be desirable for backcrossing, which is motivation to use the methods of Van Andel for selecting homozygous plants in the method of Bonnet of crossing a resistant Rubisco Raphanus sativus plant.
One of ordinary skill in the art would have had reasonable expectation of success to modify the teachings of Bonnet in this way, because both Van Andel and Bonnet teach methods for breeding in Raphanus sativus.
Applicant urges that because Bonnet and Van Andel does not teach the gene comprising a nucleotide sequence encoding a protein having the amino acid sequence of SEQ ID NO: 3, the prior art fails to meet every element of the invention as claimed and does not anticipate or render obvious the instant claims (Remarks, page 30, paragraph 4-page 31, paragraph 3).
This argument is unpersuasive, and the rejection is made, because the Examiner cannot determine whether the prior art possesses the unrecited characteristics. While the instant specification teaches the gene of the instant invention to be different from, and found on a different chromosome than, the resistance gene of inbred line NIZ-AC2 (paragraph [0008, 0012-0013]), the instant specification does not teach how, or even if, the gene of the instant invention differs from the resistance gene taught by Bonnet. Thus, the Examiner does not have sufficient facts to determine whether the Albugo candida resistance gene of the Raphanus sativus plants and seeds of the prior art are inherently the same. In addition, the Examiner cannot conclude that the claimed subject matter would have been obvious since it cannot be determined whether the resistance gene of the plants differ. Where the prior art product seems to be identical, except that the prior art is silent to a characteristic or property claimed, then the burden shifts to Applicant to provide evidence that the prior art would neither anticipate nor render obvious the claimed invention. See In re Best 195 USPQ 430, 433 (CCPA 1977).
Conclusion
No claims are allowed.
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/VICTORIA L DELEO/Examiner, Art Unit 1662
/Anne Kubelik/Primary Examiner, Art Unit 1663
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