DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restriction
Applicant’s election without traverse of Group I (claims 1-2, 4-8, and 10-12) in the reply filed on 09/30/2025 is acknowledged.
It is noted that Applicant did not elect a species for Group I in the reply filed on 09/30/2025; however, the Examiner has searched instant sequences SEQ ID NOs: 1-4 and 72-78.
Status of Claims
The amendments received on 09/30/2025 have been entered. Claims 1-2, 4-8, 10-16, 18-22, and 26 are pending.
Claims 13-16, 18-22, and 26 are withdrawn for being directed to a non-elected invention(s).
Claims 1-2, 4-8, and 10-12 are examined in this office action.
Information Disclosure Statement
Initialed and dated copy of Applicant’s information disclosure statements (IDS) filed on 04/19/2024 and 11/13/2025 are attached to the instant Office Action. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Japan on 10/22/2021. It is noted, however, that applicant has not filed a certified copy, in English, of the JP2021-173508 application as required by 37 CFR 1.55.
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code(s); see, for example, page 4, line 34, and page 5, line 1. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
Claim Objections
Claim 2 is objected to because of the following informalities: there appears to be a dash between the first two words of the claim. It is suggested to delete the dash in “The-Eustoma”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
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.
Indefiniteness
Claims 4 and 5 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. All dependent claims are included in these rejections unless they contain a limitation that overcomes the deficiencies of the parent claim from which they depend.
Claim 4 recites "base sequence" (of SEQ ID NO:1, for example). The Specification does not define a "base sequence". Applicants clearly intend for the claims to encompass a "base sequence", but it is unclear what "base" is required of these sequences; and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
In the interest of compact prosecution and for purposes of examination, the phrase "base sequence" (of SEQ ID NO:1, for example) is interpreted to refer to the full-length polynucleotide sequence (of SEQ ID NO:1).
Written Description
Claims 1-2, 4-8, and 10-12 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. All dependent claims are included in these rejections unless they contain a limitation that overcomes the deficiencies of the parent claim from which they depend.
The claims are broadly drawn to a Eustoma fusarium wilt-resistant Eustoma plant comprising: a Eustoma fusarium wilt resistance locus on chromosome 20.
Applicants describe the identification of a fusarium wilt-resistant Eustoma line that exhibits a high degree of fusarium wilt resistance (Example 1, page 75, paragraph 0189).
Applicants describe the identification of a Eustoma fusarium wilt resistance locus on chromosome 20 between 3,703,734bp and 3,961,378bp (Example 1, page 77, paragraph 0197).
Applicants describe the identification of 66 SNP markers, including Egra20_3703734, Egra20_3759258, Egra20_3833476, Egra20_3839851, Egra20_3849059, Egra20_3854638, Egra20_3857016, Egra20_3879982, Egra20_3914662, Egra20_3939402, and Egra20_3961378 within the Eustoma fusarium wilt resistance locus on chromosome 20 (Tables 5A-C, pages 81-83, paragraphs 0205-0207).
The Eustoma fusarium wilt-resistant Eustoma plant described by the Applicant is of the species E. grandiflorum. Onozaki (Onozaki et al., 2020, The Horticulture Journal, Vol. 89, pages 473-480; included on IDS dated 04/19/2024) teaches that the genus Eustoma is a member of the family Gentianaceae and includes three species, E. grandiflorum, E. exaltatum, and E. barkleyi. Eustoma grandiflorum, from which most commercial cultivars have been derived, is native to the midwestern and southern prairies of the USA; Eustoma exaltatum is distributed in the southernmost USA, Mexico, British Honduras (now called Belize) and the West Indies; and Eustoma barkleyi is known only from a limited area in Coahuila, Mexico (Onozaki, Introduction, page 473, right column, first full paragraph). Onozaki further teaches that in a disease resistance study, E. exaltatum Ohkawa No. 1 was found to be highly resistant to Fusarium solani isolate MAFF712388, and resistant to isolate MAFF712411, while only one E. grandiflorum cultivar (Papillon Pink Flash) of the 29 cultivars tested showed a high resistance to both Fusarium solani isolates (Onozaki, Abstract, page 473). Applicant has broadly claimed a “Eustoma plant”, which encompasses the three species of Eustoma, yet has only reduced to practice the identification of a Eustoma fusarium wilt resistance locus on chromosome 20 in Eustoma grandiflorum.
Furthermore, Applicants claim broad-spectrum “fusarium wilt resistance” caused by the fungus Fusarium oxysporum. Fusarium oxysporum is a genetically diverse species complex of different formae speciales (f. sp.) found to exhibit narrow host adaptation and to exploit a broad range of environmental niches. Fusarium oxysporum formae speciales include both nonpathogenic and pathogenic strains capable of causing severe disease in plants, endangering production of economically important crops (Kanapin et al., 2020, Molecular Plant-Microbe Interactions, Vol. 33(9), pages 1112-1115; see page 1112, left column, second paragraph). As evidenced by Onozaki, Eustoma plants can display different levels of resistance to different isolates of Fusarium solani. For example, Eustoma cultivars ‘Bolero White’ and ‘Shihai’ were susceptible in two tests of F. solani isolate MAFF712411, but their percentages of wilted plants ranged between 50% (moderately susceptible) and 90% (susceptible) upon exposure to MAFF712388. Eustoma cultivar ‘Annie Light Pink’ was resistant in the spring 2018 test to MAFF712388 and highly resistant in the autumn 2018 test to MAFF712411, but its percentage of wilted plants reached 60% (moderately susceptible) in the spring 2019 test with MAFF712411. Additionally, MAFF712411 was found to have greater pathogenicity than MAFF712388. For example, although ‘Cecil Passion ME’, ‘Clare Pink’, ‘Cocktail Blue’, ‘Suzukaze’, and ‘Voyage (Type 2) White’ were highly resistant or resistant to MAFF712388, at least 50% of plants of these five cultivars wilted upon exposure to MAFF712411 (Onozaki, Results, page 477, left column, last paragraph; Table 1, page 475).
Applicants describe the identification of a correlation between five SNP markers (a-e) and the Eustoma fusarium wilt resistance in eleven lines from F2 and F3 generations (Example 1, Table 3, page 77, paragraph 0196). However, the results described in Table 3 demonstrate that individual markers are unlikely to be predictive of the Eustoma fusarium wilt resistance trait. In lines 6 and 8, the presence of only Egra20_3961378 SNP (d) (either hetero- or homozygous) alone was not indicative of the Eustoma fusarium wilt resistance trait. Based on the information presented in Table 3 below, the identification of the Eustoma fusarium wilt resistance trait relies on the identification of more than one SNP marker on chromosome 20.
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Based on the disclosure, it appears that the claimed chromosomal region between sites of the two SNP markers Egra20_3656645 and Egra20_3961378 is 304,733 bp long; this corresponds to the distance between the upstream position of marker Egra20_3656645, and the downstream position of marker Egra20_3961378. However, Applicants do not specifically describe nor do they reduce to practice a representative number of markers and/or SNPs/marker alleles that are located in this region, and are determinative of Eustoma fusarium wilt resistance in Eustoma plants. The claimed chromosomal region encompasses a myriad of genes, motifs, loci, alleles, and other genetic determinants, which may or may not be associated with resistance to Eustoma fusarium wilt; and most of which were not in Applicants’ possession at the time of filing. The Specification does not provide sufficient guidance for the number, identity, and physiochemical characteristics of the broadly claimed genus of markers and SNPs that are present (i) on chromosome 20 or (ii) in the broadly claimed chromosomal region, and which are causally related to Eustoma fusarium wilt resistance. The Applicants also fail to describe structural or functional features common to members of the claimed genus of markers on the claimed chromosome 20 or in the claimed chromosomal interval, which are determinants of increased Eustoma fusarium wilt resistance in a Eustoma plant.
Relating to structure vs. function, Applicants do not claim the necessary (i.e., Eustoma fusarium wilt resistance-conveying) SNP(s)/allele(s) associated with the claimed phenotype(s), such that, Applicants do not disclose a conserved structure responsible with respect to the marker loci and alleles as to accomplish the instantly claimed function of resistance to Eustoma fusarium wilt in Eustoma plants. The claims are drawn to any unspecified allele, as long as the marker locus is located (i) on the instantly claimed chromosome 20, or (ii) within the instantly claimed chromosome interval. The claims are not limited to alleles indicative of the claimed phenotype of resistance to Eustoma fusarium wilt in Eustoma plants. This leads to a situation where the instantly claimed (alleles of the claimed) marker loci would not possess the necessary structural features needed to accomplish the claimed phenotype. The Specification makes clear that the specific single nucleotide polymorphisms comprised within the marker alleles lend to the phenotype, thus it is necessary to claim the polymorphisms as such (i.e., specific Eustoma fusarium wilt resistance-conveying alleles).
Accordingly, the claims are drawn to an extremely large genus of marker loci encompassing any possible yet unspecified alleles associated with the claimed phenotype of resistance to all Eustoma fusarium wilt isolates in all Eustoma plants, when Applicants have only reduced to practice twelve SNPs/alleles within the claimed region between Egra20_3656645 and Egra20_3961378. The claims are drawn to any marker of any type and sequence vs. the exemplified SNPs/alleles listed in the Specification.
Given Applicants have provided no description of the structures that would link a myriad of unspecified marker loci that comprise SNPs/alleles on chromosome 20 (or in a region between Egra20_3656645 and Egra20_3961378 on chromosome 20) which are somehow determinants of Eustoma fusarium wilt in Eustoma plants, it remains unclear what features are capable of performing the claimed function. The Specification fails to provide an adequate written description to support the breadth of the claims. Therefore, one skilled in the art would not have recognized Applicants to be in possession of the claimed invention at the time the application was filed.
Missing Breeding History
Claim 10 is 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.
Applicants describe the identification of a Eustoma wilt-resistant Eustoma plant. This Eustoma wilt-resistant Eustoma plant was deposited under Accession No. FERM BP-22427. However, the instant Specification inadequately describes what starting materials and methods were used to produce the FERM BP-22427 Eustoma plant
35 USC 112 (a) states that “The specification shall contain a written description of the invention”. In evaluating written description, the threshold question is what is “an adequate written description”. This is question of fact that is evaluated by the factfinder (examiner). MPEP 2163.04 clearly states that “The inquiry into whether the description requirement is met must be determined on a case-by-case basis and is a question of fact. In re Wertheim, 541 F.2d 257, 262, 191 USPQ 90, 96 (CCPA 1976).”
The instant invention is a new Eustoma wilt-resistant Eustoma plant. So, the examiner will evaluate what is an adequate written description for a new Eustoma wilt-resistant Eustoma plant. In reviewing this question of fact, the examiner analyzed how plant varieties are evaluated in the public domain. The review concluded that generally the minimum requirements for an adequate description of a new plant variety has a trait table and genetic information (via a breeding history). In reviewing applicant’s specification, there is a phenotypic description; however, there is no accompanying breeding history in the specification. Because the specification lacks a breeding history and that breeding history is part of the minimum description of a plant variety, the applicant has not fulfilled the requirement of 35 USC 112(a) to provide a written description in the specification. The office’s reasonable basis for challenging the adequacy of written description is informed by a review of the following:
With regard to Plant Patents, MPEP 1605 states that a complete detailed description of a plant includes “the origin or parentage”.
Historically, the USPTO has considered breeding history information when determining the patentability of a new plant variety. (See Ex Parte C (USPQ 2d 1492 (1992) (W) and Ex Parte McGowen Board Decision in Application 14/996,093, decided June 15, 2020 (X)). In both of these cases, there were many differences cited by the Applicant when comparing the prior art and the new plant variety. However, because the breeding history was available, these differences were deemed to be obvious and within the natural variation expected in a backcrossing breeding process. Without a breeding history in these cases, a complete comparison with the prior art could not have been possible.
The above factual evidence provides a reasonable basis that a breeding history is necessary written description. With this information the examiner has met the initial burden of presenting by a preponderance of evidence why a person of ordinary skill in the art would not recognize in an Applicant’s disclosure a description of the invention defined by the claims. (See MPEP 2163.04). Please note, the citations above are not for legal authority, the legal authority relied upon by the examiner is the 35 USC 112(a) statute. The citations are presented to support the finding of fact that a breeding history is necessary to the adequate description of a plant.
Although not directly relied upon for the above written description position, a complete written description additionally helps drive examination and helps with infringement verification.
MPEP 2163 (I) states “The written description of the deposited material needs to be as complete as possible because the examination for patentability proceeds solely on the basis of the written description. See, e.g., In re Lundak, 773 F.2d 1216, 227 USPQ 90 (Fed. Cir. 1985); see also 54 Fed. Reg. at 34,880 ("As a general rule, the more information that is provided about a particular deposited biological material, the better the examiner will be able to compare the identity and characteristics of the deposited biological material with the prior art.").”
MPEP 2163(I) states “The description must be sufficient to permit verification that the deposited biological material is in fact that disclosed. Once the patent issues, the description must be sufficient to aid in the resolution of questions of infringement." Id. at 34,880.)” (Quoting the Deposit of Biological Materials for Patent Purposes, Final Rule, 54 Fed. Reg. 34,864 (August 22, 1989) at 34,880).
The breeding history aids in the resolution of patent infringement by providing information necessary to determine whether differences in the plants are genetic differences, differences caused by the environment, or differences within the accepted variation within a variety.
Moreover, a specification devoid of a complete breeding history hampers the public’s ability to resolve infringement analysis with plants already in the prior art as well as plants that have not yet been patented. Because the instant specification lacks the complete breeding history, the public will not be able to fully resolve questions of infringement. Since the breeding history, including the parents, is not known to the public, the public could only rely on the phenotypes of the claimed plants for assessing potential infringement.
Thus, an application that does not clearly describe the breeding history does not provide an adequate written description of the invention.
To overcome this rejection, Applicant must amend the specification/drawing to provide the breeding history used to develop the instant Eustoma wilt-resistant Eustoma plant. When identifying the breeding history, Applicant should identify any and all other potential names for all parental lines utilized in the development of the instant Eustoma wilt-resistant Eustoma plant and all other potential names for the claimed Eustoma plant. If Applicant’s breeding history uses proprietary cultivar names, Applicant should notate in the specification all other names of the proprietary cultivars, especially publicly disclosed or patented cultivar information. If the breeding history encompasses a locus conversion or a backcrossing process, Applicant should clearly indicate the recurrent parent and the donor plant and specifically name the trait or transgenic event that is being donated to the recurrent parent. If one of the parents is a backcross progeny or locus converted line of a publicly disclosed line, Applicant should provide the breeding history of the parent line as well (i.e., grandparents). Applicant should identify the breeding method used, such as single seed descent, bulk method, backcross method, etc., and the filial generation in which the instant plant was chosen. Information pertaining to the homozygosity or heterozygosity of the parents as well as the instant plant should be set forth.
Applicant is reminded that they have a duty to disclose information material to patentability. Applicant should also notate the most similar plants which should include any other plants created using similar breeding history (such as siblings of the instant cultivar). If there any patent applications or patents in which sibs or parents of the instant plant are claimed, the serial numbers and names of the sibs or parents should be disclosed. This information can be submitted in an IDS with a notation of the relevancy to the instant application or as information submitted as described in MPEP 724 (e.g., trade secret, proprietary, and Protective Order).
Deposit of Biological Material
Claims 1-2, 4-8, and 10-12 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 enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Since the Eustoma plant claimed is essential to the claimed invention, it must be obtainable by a repeatable method set forth in the Specification or otherwise be readily available to the public. If a Eustoma plant is not so obtainable or available, a deposit of seed thereof may satisfy the requirements of 35 U.S.C. § 112. A deposit of 650 seeds of each of the claimed invention is considered sufficient to ensure public availability. The Specification does not disclose a repeatable process to obtain the exact same Eustoma plant in each occurrence and it is not apparent if such a Eustoma plant is readily available to the public.
It is noted that Applicants have deposited a Eustoma plant under Accession No. FERM BP-22427 with the National Institute of Technology and Evaluation in Japan (page 64, paragraph 0133). However, there is no affirmative statement in the Specification that all restrictions upon availability to the public will be irrevocably removed upon granting of the patent.
If the deposit of these seeds was/is made under the terms of the Budapest Treaty, then an affidavit or declaration by the Applicants, or a statement by an attorney of record over his or her signature and registration number, or someone empowered to make such a statement, stating that the seeds have been deposited and accepted, will be irrevocably and without restriction or condition released to the public upon the issuance of a patent would satisfy the deposit requirement made herein. A minimum deposit of 625 seeds is considered sufficient in the ordinary case to assure availability through the period for which a deposit must be maintained.
If the deposit was/is not made under the Budapest Treaty, then in order to certify that the deposit meets the requirements set forth in 37 C.F.R. §§ 1.801-1.809, Applicants may provide assurance of compliance by statement, an affidavit or declaration, or by someone empowered to make the same, or by a statement by an attorney of record over his or her signature and registration number showing that
(a) during the pendency of the application, access to the invention will be afforded to the Commissioner upon request;
(b) all restrictions upon availability to the public will be irrevocably removed upon granting of the patent in accordance with 37 CFR 1.808(a)(2);
(c) the deposit will be maintained in a public depository for a period of 30 years or 5 years after the last request or for the enforceable life of the patent, whichever is longer;
(d) the viability of the biological material at the time of deposit will be tested (see 37 C.F.R. § 1.807); and
(e) the deposit will be replaced if it should ever become inviable.
Compliance with this requirement may be held in abeyance until the application is otherwise in condition for an allowance.
Improper Markush Group
Claims 2 and 4-8 are rejected on the basis that it contains an improper Markush grouping of alternatives. See In re Harnisch, 631 F.2d 716, 721-22 (CCPA 1980) and Ex parte Hozumi, 3 USPQ2d 1059, 1060 (Bd. Pat. App. & Int. 1984). A Markush grouping is proper if the alternatives defined by the Markush group (i.e., alternatives from which a selection is to be made in the context of a combination or process, or alternative chemical compounds as a whole) share a “single structural similarity” and a common use. A Markush grouping meets these requirements in two situations. First, a Markush grouping is proper if the alternatives are all members of the same recognized physical or chemical class or the same art-recognized class, and are disclosed in the specification or known in the art to be functionally equivalent and have a common use. Second, where a Markush grouping describes alternative chemical compounds, whether by words or chemical formulas, and the alternatives do not belong to a recognized class as set forth above, the members of the Markush grouping may be considered to share a “single structural similarity” and common use where the alternatives share both a substantial structural feature and a common use that flows from the substantial structural feature. See MPEP § 2117.
The Markush grouping of SNP markers Egra20_3703734, Egra20_3759258, Egra20_3833476, Egra20_3839851, Egra20_3849059, Egra20_3854638, Egra20_3857016, Egra20_3879982, Egra20_3914662, Egra20_3939402, and Egra20_3961378, and their corresponding polynucleotide (a) to (d) and (f) to (l) is improper because the alternatives defined by the Markush grouping do not share both a single structural similarity and a common use for the following reasons: the claims encompass different nucleotide sequences which are biochemically divergent, they have no conserved structure throughout the genus, and may or may not be associated with the recited fusarium wilt resistance trait in all possible Eustoma varieties, against all possible fusarium wilt isolates, and under all possible environmental conditions. The species lack a substantial structural feature as evidenced by the failure of the sequence searches for one sequence to recover any of the other recited sequences. Thus, the species do not share a substantial structural feature or a common use which flows therefrom.
To overcome this rejection, Applicant may set forth each alternative (or grouping of patentably indistinct alternatives) within an improper Markush grouping in a series of independent or dependent claims and/or present convincing arguments that the group members recited in the alternative within a single claim in fact share a single structural similarity as well as a common use.
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.
Claims 1-2, 4-8, and 10-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a product of nature without significantly more. The claims recite a Eustoma fusarium wilt-resistant Eustoma plant identifiable by the SNP markers recited in claim 2 and their corresponding SEQ ID NO recited in claim 4. This judicial exception is not integrated into a practical application because the base sequences 1-4 and 72-78 recited in instant claim 4 are genomic DNA sequences of chromosome 20 present in the Eustoma grandiflorum genome (instant Specification, page 76, paragraph 0191; and sequence listing).
The instant Specification describes the plants used in the inoculation test of Example 1 were “various Eustoma plants owned by TAKII & CO., LTD” (page 74, paragraph 0183). The instant Specification does not describe any transformation event or additional elements encompassed by these plants. Eustoma lines resistant to fusarium are known to occur naturally. For example, Onozaki (Onozaki et al., 2020, The Horticulture Journal, Vol. 89, pages 473-480; included on IDS dated 04/19/2024) teaches evaluating 29 lisianthus cultivars (Eustoma grandiflorum) and one inbred line of Eustoma exaltatum for resistance to two isolates (MAFF712388 and MAFF712411) of Fusarium solani. Large differences were found in resistance among the 29 cultivars and the one inbred line tested. E. grandiflorum cultivar ‘Papillon Pink Flash’ was found to be highly resistant to both isolates, and E. exaltatum Ohkawa No. 1 was highly resistant to isolate MAFF712388 and resistant to isolate MAFF712411.
Furthermore, the claim(s) do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claimed invention is directed to naturally-occurring nucleotides, cells, and organisms. The claimed compositions have the inherent property/ies that are recited in the claims. The instant claims do not require any transformation event or any additional element to show a practical application or integration of the natural principle. A claim that focuses on a natural principle must also include additional elements to show that the inventor has added something significant to the natural principle itself. Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. _, 132 S. Ct. 1289,101 USPQ2d 1961 (2012), at 1966. To show integration, the additional elements must relate to the natural principle in a significant way to impose a meaningful limit on the claim scope.
The claimed products are not patent-eligible pursuant to the Supreme Court decision in Ass'n. for Molecular Pathology v. Myriad Genetics (formerly v. USPTO), 653 F.3d 1329, 99 USPQ2d 1398 (Fed. Cir. 2011), cert. granted, judgment vacated and remanded to the Court of Appeals for the Federal Circuit, No. 11-725, 80 U.S.L.W. 3380, 2012 BL 72224 (U.S. Mar. 26, 2012), reversed, ---- S.Ct. ----, 106 USPQ2d 1972, 1974-75 (2013). The claimed invention does not rise to a level that is markedly different in structure from what exists in nature. See “2014 Interim Guidance On Patent Subject Matter Eligibility”, December, 2014, available from the USPTO website at http://www.gpo. gov/fdsys/pkg/FR-2014-12-16/pdf/2014- 29414.pdf.
Summary
No claim is allowed.
However, claims 1-2, 4-8, and 10-12 appear to be free of the prior art, given the failure of the prior art to teach or reasonably suggest a Eustoma fusarium wilt-resistant Eustoma plant. Additionally, a thorough sequence search failed to disclose any of the base sequences SEQ ID NOs: 1-4 and 72-78.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTINA MEADOWS whose telephone number is (703)756-1430. The examiner can normally be reached Monday - Friday 9:00 am - 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, Amjad Abraham can be reached at 571-270-7058. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTINA L MEADOWS/Examiner, Art Unit 1663
CHRISTINA MEADOWS
Examiner
Art Unit 1663
/Amjad Abraham/SPE, Art Unit 1663
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