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 .
Response to Amendment
Applicant’s IDS submission and amendments necessitated new grounds of rejection. This action is made final in view of the new grounds of rejection.
This office action is made final.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-2, 4-6, 8, 11, 19-23, 25, 30-31, and 34-35 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Miller et al., (Enhance Strawberry Seed Germination through in Vitro Culture of Cut Achenes), hereinafter Miller.
In re. claim 1, Miller teaches a method of reducing germination time of Rubus seeds, the method comprising: cutting (cutting transversely with a scalpel) (last para. of pg. 13) each of one or more Rubus seeds (strawberry achenes) into two portions to produce Rubus seed portions (cut and uncut portions); and cultivating the Rubus seed portions on a germination medium (medium in food jars) in a humid environment (plastic-capped food jar) to produce one or more seedlings that comprise a radicle, thereby reducing the time to germination of the Rubus seeds (germinated seedling clearly evident after 5 days) (pg. 315, col. 1, 2nd to last para.).
In re. claim 2, Miller teaches a method of reducing time from seed to production of Rubus seedlings having roots and plumules, the method comprising: cutting (cutting transversely with a scalpel) (last para. of pg. 13) each of one or more Rubus seeds (strawberry achenes) into two portions to produce Rubus seed portions (cut and uncut portions); cultivating the Rubus seed portions on a germination medium (medium in food jars) in a humid environment (plastic-capped food jar) to produce one or more Rubus seedlings that comprise a radicle (germinated seedling clearly evident after 5 days) (pg. 315, col. 1, 2nd to last para.); and cultivating the one or more Rubus seedlings to produce one or more Rubus seedlings having roots and a plumule (root and shoot) (pg. 314, col. 2, last para.).
In re. claim 4, Miller teaches the method of claim 1, wherein cultivating of (b) is for about 24 hours to about 12 days (germinated seedling clearly evident after 5 days) (pg. 315, col. 1, 2nd to last para.).
In re. claim 5, Miller teaches the method of claim 2, wherein the cultivating of (c) is for about 48 hours to about three weeks (max germination 2-3 weeks) (pg. 314, table 3).
In re. claim 6, Miller teaches the method of claim 1, wherein the germination time is reduced to about 24 hours to about 12 days (max germination 2-3 weeks) (pg. 314, table 3) as compared to about 12 weeks to about 16 weeks for a control (as the control fails to further define the method).
In re. claim 8, Miller teaches the method of claim 2, wherein the time from seed to production of plants having roots and a plumule is reduced by about 3 days to about 35 days (2-3 weeks) (table 3) as compared to about 105 days to about 133 days for a control (as the control fails to further define the method).
In re. claim 11, Miller teaches the method of claim 1, wherein the cultivating of (b) comprises a temperature in a range from about 21°C to about 28°C (27°C) (pg. 314, 2nd to last para.).
In re. claim 19, Miller teaches the method of claim 1, wherein the one or more Rubus seeds are mature seeds harvested from fully ripe fruit from Rubus plants (achenes from white and red-ripe fruit) (pg. 315, last para.).
In re. claim 20, Miller teaches the method of claim 1, wherein the one or more Rubus seeds that are harvested are desiccated (dried to 10% to 14% water content) (pg. 313, 2nd to last para.).
In re. claim 21, Miller teaches the method of claim 1, further comprising surface sterilizing the one or more Rubus seeds prior to cutting (pg. 315, last para.).
In re. claim 22, Miller teaches the method of claim 21, wherein the surface sterilizing comprises comprising contacting the one or more Rubus seeds with a disinfecting solution (Clorox) (pg. 315, last para.).
In re. claim 23, Miller teaches the method of claim 22, wherein the disinfecting solution is a bleach solution (Clorox) (pg. 315, last para.).
In re. claim 25, Miller teaches the method of claim 23, wherein the surface sterilizing comprises maintaining the one or more Rubus seeds in the bleach solution for about 5 minutes to about 30 minutes (10 rein understood to be a typo of 10 min.) (pg. 315, last para.).
In re. claim 30, Miller teaches the method of claim 1, wherein the method does not comprise stratification (not stratified) (pg. 315, last para.).
In re. claim 31, Miller teaches the method of claim 1, wherein the method does not comprise sterile tissue culture (sterilizing of tissue culture not discussed in disclosure).
In re. claim 34, Miller teaches the method of claim 31, wherein the one or more Rubus seeds are mature seeds harvested from fully ripe fruit from Rubus plants and the one or more Rubus seeds are not desiccated (not dried) (pg. 315, last para.).
In re. claim 35, Miller teaches the method of claim 2, wherein the one or more Rubus seedlings further comprise two cotyledons (as the growth of the seedling fails to further define the method).
Claim Rejections - 35 USC § 103
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 12 is rejected under 35 U.S.C. 103 as being unpatentable over Miller as applied to claim 1 above, and further in view of Wada et al. ‘Standardizing Germination Protocols For Diverse Raspberry And Blackberry Species’, hereinafter Wada.
In re. claim 12, Miller fails to disclose the cultivating of (b) comprises a day length of about 14 hours to about 18 hours.
Wada teaches cultivating comprises a day length of about 14 hours to about 18 hours (16 hours light) (section 2.2.2).
Therefore, it would have been prima facie obvious to one having ordinary skill in the art at the time the invention was filed to have modified Miller to incorporate the teachings of Wada to have the recited day length, for the purpose of utilizing warm stratification for breaking dormancy in seeds (Wada, pg. 1, last para.).
Claims 27-28 are rejected under 35 U.S.C. 103 as being unpatentable over Miller as applied to claim 1 above, and further in view of Sakakibara et al. (US 2019/0223401).
In re. claim 27, Miller fails to disclose exposing the one or more Rubus seedlings to conditions of decreasing humidity, thereby producing one or more Rubus seedlings or plants having roots and a plumule that are hardened.
Sakakibara teaches disclose exposing the one or more Rubus seedlings (para [00129]) to conditions of decreasing humidity (para [0242]), thereby producing one or more Rubus seedlings or plants having roots and a plumule that are hardened (as is understood by acclimating to environment).
Therefore, it would have been prima facie obvious to one having ordinary skill in the art at the time the invention was filed to have modified Miller to incorporate the teachings of Sakakibara to expose the one or more Rubus seedlings to conditions of decreasing humidity, for the purpose of acclimatizing the seedlings to the environment.
In re. claim 28, Miller as modified by Sakakibara (see Sakakibara) teach the method of claim 27, wherein the conditions of decreasing humidity are carried out for about 7 days to about 5 weeks (one week ) to produce a hardened plant (para [0242]).
Miller as modified by Sakakibara fail to disclose a relative humidity of about 80% or lower.
It would have been prima facie obvious to one having ordinary skill in the art at the time the invention was filed to have modified Miller as modified by Sakakibara to have the conditions of decreasing humidity at a relative humidity of about 80% or lower, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. MPEP 2144.05(II) Doing so allows the plant to be acclimated in an environment below 80% humidity.
Response to Arguments
Applicant’s arguments with respect to the claims above have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's submission of an information disclosure statement under 37 CFR 1.97(c) with the timing fee set forth in 37 CFR 1.17(p) on 11/11/2025 prompted the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 609.04(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Christopher D. Hutchens whose telephone number is (571)270-5535. The examiner can normally be reached M-F 9-5.
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/C.D.H./
Primary Examiner
Art Unit 3647
/Christopher D Hutchens/ Primary Examiner, Art Unit 3647