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 .
Claims 1-18, pending in this application, are examined.
Copending Applications
Applicants must bring to the attention of the Examiner, or other Office official involved with the examination of a particular application, information within their knowledge as to other copending United States applications, which are "material to patentability" of the application in question. MPEP 2001.06(b). See Dayco Products Inc. v. Total Containment Inc., 66 USPQ2d 1801 (CA FC 2003).
Specification
The status of US Application Serial No. 18/377, 946 on page 1 of the specification should be updated. It is suggested that , ---, now issued as United States Patent No. 12,457,950----- be inserted before the period in line 2.
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code. See, for example, page 10 , lines 17-18, of the specification. 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.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-33 and of U.S. Patent No. 12,457,950. Although the claim at issue are not identical, they are not patentably distinct from each other because the claims of both the application and issued patent are drawn to a method of rice seed production by growing a designated rice female parent plant comprising both male and female components, having a pollination window and exposed undesirable pollen during the pollination window with a first daily period wherein undesirable pollen is not shed and a second daily period wherein undesirable pollen is shed; intentionally pollinating said designated rice female parent plant on one or more occasions with said designated rice male pollen plant during said daily first period wherein pollen is not shed from the undesirable pollen source; growing the designated female parent plant to maturity; and harvesting the seed produced by said designated female parent plant; wherein the designated male pollen is from a rice plant genetically different from the designated rice female parent plant. The claims of the instant application drawn to rice seed production are obvious over the issued patent claims drawn to cereal seed production, wherein the cereal is rice.
Therefore, the claims of the instant application are obvious over the issued patent claims.
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 13 of U.S. Patent No. US 11,166,422 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of both the instant application and the issued patent are drawn to a method of rice seed production by growing a designated rice female parent plant comprising both male and female components; intentionally pollinating said designated rice female parent plant on one or more occasions with said designated rice male pollen plant male components are not shedding pollen on said one or more days; growing the designated female parent plant to maturity; and harvesting the seed produced by said designated female parent plant.
The claims of the instant application are drawn to a method of rice seed production by growing a designated female rice plant having a pollination window with a first daily period wherein the undesirable pollen is not shed and a second daily period wherein an undesirable period is shed; wherein said designated is exposed to undesirable pollen from undesirable pollen source during said pollination window; intentionally pollinating said designated female parent plant on one or more occasions with a designated male parent plant when the undesirable pollen is not shed, said designated male parent plant is genetically different from the designated female parent plant ; growing the designated female plant to maturity and harvesting the seed produced by said designated female parent.
The issued patent claims are drawn to a method of grain production comprising growing a designated female plant that includes both female and male components; selecting a designated male plant pollen; intentionally cross-pollinating on one or more days said designated female parent plant with said designated male plant pollen when said male component is not shedding pollen on said one or more days; growing the designated female plant to maturity; and harvesting the grain produced by said designated female plant; wherein said male components is not a male sterile at the time of cross-pollination and the female components are not covered from undesirable pollination; wherein said plant is a rice plant. The claims of instant application use the term “seed” while the patented claim use the term “grain” instead. However, the methods steps are identical.
Therefore, the claims of the instant application are obvious over the issued patent claims.
Claims 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 5 of U.S. Patent No. US 11,166,421 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of both the instant application of the patent are drawn to the claims of both the instant application and the issued patent are drawn to a method of rice seed production by growing a designated rice female parent plant comprising both male and female components; intentionally pollinating said designated rice female parent plant on one or more occasions with said designated rice male pollen plant male components are not shedding pollen on said one or more days; growing the designated female parent plant to maturity; and harvesting the seed produced by said designated female parent plant..
The claims of the instant application are drawn to a method of rice seed production by growing a designated female rice plant having a pollination window with a first daily period wherein the undesirable pollen is not shed and a second daily period wherein an undesirable period is shed; wherein said designated is exposed to undesirable pollen from undesirable pollen source during said pollination window; intentionally pollinating said designated female parent plant on one or more occasions with a designated male parent plant when the undesirable pollen is not shed, said designated male parent plant is from a rice plant genetically different from the designated female parent plant ; growing the designated female plant to maturity and harvesting the seed produced by said designated female parent.
The issued patent claim is drawn to a method of grain production comprising growing a designated female plant that includes both female and male components; selecting a designated male plant pollen; intentionally cross-pollinating, by automatic or semi-automatic means, on one or more days said designated female parent plant with said designated male plant pollen when said male component is not shedding pollen on said one or more days; growing the designated female plant to maturity; and harvesting the grain produced by said designated female plant; wherein said male components is not a male sterile at the time of cross-pollination and the female components are not covered from undesirable pollination; wherein said plant is a rice plant. The claims of instant application use the term “seed” while the patented claim use the term “grain” instead. However, the methods steps are substantially identical.
Therefore, the claims of the instant application are obvious over the issued patent claims.
Claims 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 4 of U.S. Patent No. US 10, 398,099 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of both the instant application and the issued patent are drawn to a method of rice seed production by growing a designated female parent plant comprising both male and female components; intentionally pollinating said designated female parent plant on one or more occasions with said designated male pollen plant male components are not shedding pollen on said one or more days; growing the designated female parent plant to maturity; and harvesting the seed produced by said designated female parent plant.
The claims of the instant application are drawn to a method of rice seed production by growing a designated female wheat plant having a pollination window with a first daily period wherein the undesirable pollen is not shed and a second daily period wherein an undesirable period is shed; wherein said designated is exposed to undesirable pollen from undesirable pollen source during said pollination window; intentionally pollinating said designated female parent plant on one or more occasions with a designated male parent plant when the undesirable pollen is not shed, said designated male parent plant is from a rice plant genetically different from the designated female parent plant ; growing the designated female plant to maturity and harvesting the seed produced by said designated female parent.
The claims of the issued patent are drawn to a method of grain production by growing a designated female plant comprising both male and female components; intentionally pollinating said designated female parent plant on one or more occasions with said designated male pollen plant male components are not shedding pollen on said one or more days; growing the designated female parent plant to maturity; and harvesting the seed produced by said designated female parent plant. The claims of the instant application, drawn to a method of rice seed production and the claims of the issued patent drawn to grain production, wherein the designated female parent is a rice plant; all the method steps in both the application and patent claims are substantially identical.
Therefore, the claims of the instant application are obvious over the issued patent claims.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Cope et al (WO 2013/070846 A1) in view of Creaves et al (US 6,141,904 A) and Feng et al (US 8, 618,358 B2).
The claims are drawn to a method of rice seed production having improved genetic purity by decreasing contamination, the method comprising growing a designated female parent plant that has both female and male components; intentionally pollinating, on one or more occasions, said designated female parent plant with designated male plant pollen, when the male components of said designated female parent plant and when other biologically compatible pollen sources are both not releasing viable pollen; growing the designated female plant to maturity; and harvesting the seed produced by said designated female plant, wherein said designated male plant pollen is applied on more than one occasion to the same designated female parent plant; wherein said method further includes the reduction or elimination of the need for male sterility of said designated female plant; physical and/or temporal isolation of said designated female plant from any biologically compatible pollen sources; and male pollinator plants to be grown in proximity of said designated female plant; wherein the designated male plant pollen is one or more of fresh pollen and/or preserved pollen; wherein the intentional application of designated male plant pollen is conducted by mechanical means , positive pressure, negative pressure, manual means, or combinations thereof, or by automated or semi-auto mated means that is a vehicle or drone; said method wherein said designated male pollen is fresh from a field, a growth chamber, a greenhouse, a glasshouse, a shade house, a hoop house, a vertical farming facility; wherein the designated male plant pollen has been collected from a source with normal circadian flowering wherein said male components of said designated female parent plants are allowed to shed with no delay; said method wherein the designated male pollen is obtained from a single genetic source or from multiple genetic sources and is combined prior to application.
Cope et al teach a method of generating hybrid maize seed having high genetic purity, the method comprising growing designated known female parents (that includes both male and female components) and intentionally pollinating them with known grains of pollen using an electronic sensor or a field sprayer and distributing the known grains of pollen (fresh) to one or more plants at a time when the electronic sensor senses the target pollination location of the one or more plants within a predefined proximity , and by preventing pollination of the one or more plants by an alternate pollen source by covering a plurality of silks of the one or more corn plants or by genetically predisposing the one or more plants to begin silk emergence at a time that differs the time of shedding pollen; said method further comprising preserving the known pollen grains prior to distributing to the one or more known female plants (see the whole document). Figure 3 of Cope et al substantially teach the steps of the instant claims.
While Cope et al substantially discloses the claimed method of producing hybrid seed, Cope et al do not explicitly the use of pollen grains which are preserved by cooling, chilling, cryopreservation, or teach the use of pollen obtained from greenhouse, growth chamber or pollen preserved by cooling or chilling or by freezing.
Greaves et al teach hybrid crop production methods which use viable preserved pollen in the field, the method comprising planting female plants; dispensing a plurality of maize grains of pollen using a device to pollinate the female plant, wherein the plants and the pollen are known (col. 3, lines 36-39); the desired pollen grains is provided mechanically to the flowering female parent plant, and harvesting hybrid seed from the female parent plant. Greaves also teach maize pollen grains are stored in freezer trucks or in dry ice; the plurality of pollen grains (col. 8, lines 43-49); and pollinating corn plants (Fig. 6); controlling an environmental conditions comprising humidity within the pollen storage (col. 3, lines 50-55).
Feng et al teach a method of hybrid maize seed production with improved seed purity by planting a first female parent plant, treating the female plant thereby preventing (delaying) viable pollen formation, administering the female plant with pollen from a second parent plant, and harvesting hybrid seed from the female parent plant (col. 4, lines 41-64, and example 10).
Cope et al in view of Creaves et al and Feng et al do not teach rice seed production, however, since maize and rice are both cereal plants the prior art method is also applicable to rice production. The method of rice production as claimed in the instant application is obvious over the method of maize production, given that no specific genotype of maize or rice is recited in respective methods.
Therefore, it would have been obvious to one of skill in the art to use the method of producing hybrid seed of important crops such as maize as taught by Cope et al or rice, given that rice and maize are both economically important cereal, and to modify that method by incorporating a preserved male pollen male from a second maize or rice plant to produce hybrid seed, given the availability of storage, transport and application system of a preserved maize or rice pollen plants as taught by Greaves et al; and further include a step of treating the designated female parent plant to delay its pollen shed and prevent self-pollination as taught by Feng et al .It is the desire of every plant breeder to prevent self-pollination in hybrid seed production to improve yield and vigor. One would have been motivated to produce maize or rice hybrid seed having improved purity, given that hybrid seeds are more vigor, provide greater yield, have better resistance to insects and disease as compared to their parental lines as known to an ordinary plant breeder . While Applicant’s specification puts emphasis on eliminating the need of male sterile female plants and physical and/or temporal isolation the desired female, or male pollinator grown in proximity of said female plant, the instant claims do not exclude these steps. Claim 18 requires reduction of the need of male sterile female plants and physical and/or temporal isolation the desired female, or male pollinator grown in proximity of said female plant. However, how much of reduction (1% or 99%) is unknown. Since maize and rice are both cereal, the hybrid seed production for maize can be applied to rice with a reasonable expectation of success, absent evidence to the contrary.
Therefore, for all the reasons discussed above, the claimed invention is obvious over the cited prior art. These prior art references are properly combined, because they are in the field of hybrid seed production and are pertinent to the particular problem with which the Applicants were concerned, and so may be relied upon as a basis for rejection of the claimed invention. in re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992).
Pertinent References
Tsai et al (Journal of the Science of Food and Agriculture (1991) 57:163-174) teach a method of crossing a designated female plant, Pioneer hybrid P3732, with fresh pollen from a designated field-grown male plant, B73 X Mol 7; wherein the female plant initially comprised both female and male components prior to detasseling, wherein the male pollen was applied several times via wind-mediated open-pollination over the course of several days; and wherein cross-pollinated plants exhibited increased grain yield and increased kernel protein content, when compared to that of sib-pollinated P3732 plants. Tsai et al teach that plants of the designated female were planted a few days later than plants of the designated male, so that pollen shed would occur when the female plant's silks are first receptive.
Wang et al (2009, industrial Crops and Products 29: 182-188, Applicant submitted) teach the cross-pollination of female corn plant Nongda108 with pollen from high-oil corn hybrids HOM202 and HOM115, wherein said cross-pollination resulted in increased grain yield and increased oil content when compared with self- or sib- pollinated Nongda108 plants. Wang et al teach that female plant Nongda108
contained both male and female components, wherein the ears were bagged in order to prevent pollen by unwanted sources, and wherein pollen harvested from Nongda108, HOM202 and HOM115 field-grown plants was manually applied at least four times to different Nongda108 plants.
Huang et al. (PLOS one (2022):1-16) a recent reference with post-publication date that teach hormonal regulation of floret opening and closure and its importance in rice hybrid production.
Conclusion
No claim is allowed.
Contact Information
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MEDINA AHMED. IBRAHIM
Primary Examiner
Art Unit 1662
/MEDINA A IBRAHIM/Primary Examiner, Art Unit 1662