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/Restrictions
Applicant’s election of the invention of broccoli inbred line BRM-8V21-4060SI and claims 1-4, 6-7 and 9-27 in the reply filed on March 06, 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Given applicant’s election of the inbred variety BRM-8V21-4060SI, claims 4 and 7, drawn to hybrid plants are also drawn to unelected inventions and are withdrawn.
Status of the Claims
Claims 1-27 are pending.
Claims 4-5 and 7-8 are withdrawn as being drawn to an unelected invention.
Claims 1-3, 6 and 9-27 are examined on the merits.
Claim Interpretation
In response to the restriction requirement mailed 01/14/2026 applicant elected on 03/06//2026 broccoli inbred line BRM-8V32-4060SI for examination. While the language of the claims refers to a plant comprising at least a first set of chromosome of Broccoli line BRM-8V21-4060SI, given that applicant has elected the inbred line BRM-8V32-4060SI, the claim is being interpreted to refer to broccoli plants of inbred line BRM-8V21-4060SI, a sample seed of said lines having been deposited under NCMA Accession No. 202211063, rather than any plants comprising at least a first set of chromosomes of the elected broccoli line because this would inherently include hybrid plants including broccoli hybrid SVBL4467.
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 21-23 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 21-23 are rejected as being indefinite in their recitation of “broccoli line BRM-8V21-4060SI”. Claims 21 and 22 are independent claims and these claims fail to recite the deposit information for the claimed variety. There is no art accepted meaning for “broccoli line BRM-8V21-4060SI”, therefore, the application is relying on the deposit of a sample of seed along with a description of the phenotypic characteristics of the variety and ordinarily a detailed breeding history to define genetic and morphological characteristics of the claimed variety and therefore the metes and bounds of the claims are not defined. Claim 23 is rejected for depending on an indefinite claim and failing to limit the scope of the claim to definite subject matter.
Claim Rejections - 35 USC § 112 (Improper Markush Grouping)
Claims 1, 3, 6, 17, 19 and 21-23 are rejected on the basis that they contain improper Markush groupings 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 broccoli line BRM-8V21-4060SI and broccoli line BRM-8V20-4058SI and the Markush grouping of broccoli line BRM-8V21-4060SI, broccoli line BRM-8V20-4058SI and broccoli hybrid SVBL4467 are improper because the alternatives defined by the Markush groupings do not share both a single structural similarity and a common use. These alternatives do not share both a single structural similarity and a common use for the following reasons: first as demonstrated in tables 1 and 2 of the instant application the alternatives all differ structurally in many ways including, homozygosity (hybrid vs inbred) and in specific phenotypic characteristics including leaf blade intensity of color, plant height, head height and cotyledon anthocyanin. Second, given that the alternatives include inbreds which can be used for producing progeny in breeding schemes and hybrids which are used to produce broccoli for sale to customers it is clear that the alternatives have different uses. Even the specific phenotypic characteristics that distinguish the two inbred lines would produce different uses given that the differences in head color would lead to different markets and uses for the broccoli heads.
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. Dependent claims are included.
Claim Rejections - 35 USC § 112 (Enablement)
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.
Regarding Biological Deposit
Claims 1-3, 6 and 9-27 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.
The invention appears to employ the seed of novel plants. Since the seed 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 seed is not so obtainable or available, the requirements of 35 U.S.C. 112 may be satisfied by a deposit thereof. The specification does not disclose a repeatable process to obtain the exact same seed in each occurrence and it is not apparent if such a seed is readily available to the public.
If the deposit of the seed is made under the terms of the Budapest Treaty, then an affidavit or declaration by the Applicant, or a statement by an attorney of record over his or her signature and registration number, stating the seed have been deposited and accepted under the Budapest Treaty and that the seed 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 (Emphasis added).
Although the rules do not specify a specific number of seeds to be deposited to meet the requirements of these rules, so long as the number of seeds deposited complies with the requirements of the Budapest Treaty International Depositary Authority (IDA) where the deposit is made, the USPTO would consider such a compliant submission as satisfying the rules under 37 CFR 1.801 through 1.809. Note that the American Type Culture Collection (ATCC), a Budapest IDA, requires a minimum deposit of 625 seeds; other IDAs may have different minimum requirements. Accordingly, any depositor should confirm that the number submitted to a specific IDA complies with that IDA's requirements for seed deposits.
If the deposit has not been made under the Budapest Treaty, then in order to certify that the deposit meets the criteria set forth in 37 CFR 1.801-1.809, Applicant may provide assurance of compliance by an affidavit or declaration, 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;
(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 CFR 1.807); and
(e) the deposit will be replaced if it should ever become unviable.
Applicant has NOT indicated that Applicant will irrevocably and for the life of the patent remove all restrictions upon the deposit. Accordingly, Applicant needs to provide a signed statement indicating that all restrictions upon the deposit will be irrevocably removed upon issuance of the patent. Compliance with this requirement may be held in abeyance until the application is otherwise in condition for an allowance.
Claim Rejections - 35 USC § 112 (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.
LACK OF BREEDING HISTORY
Claims 1-3, 6 and 9-27 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.
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 a 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 new broccoli line BRM-8V21-4060SI. So, the examiner will evaluate what is an adequate written description for a new broccoli line. In reviewing this question of fact, the examiner analyzed how plant cultivars are evaluated in the public domain. The review concluded that generally the minimum requirements for an adequate description of a new plant cultivar include a trait table and genetic information (via a breeding history). In reviewing applicant’s specification there is a phenotypic description as is seen in table 1. However, there is no accompanying detailed breeding history in the specification which sets out the parentage and specific breeding history of the claimed cultivar. While applicant has provided a breeding history in the transmittal letter dated 06/03/2025, as noted above, the 35 USC 112 (a) statute states that the specification shall contain written description of the invention and therefore while this information has been used to assess issues related to other grounds of patentability the information provided in the transmittal letter is not applicable to questions of adequate written description.
Because the specification lacks an adequate breeding history and that breeding history is part of the minimum description of a plant cultivar 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”.
A breeding history, including information about parentage and breeding methodology, is part of the requirements of Plant Cultivar Protection (PVP) applications. That information is used to “determine if development is sufficient to consider the cultivar new” (See “Applying for a Plant Cultivar Certificate of Protection”, USDA, https://www.ams.usda.gov/services/pv po/application-help/apply, downloaded 05/01/2023).
The International Union for the Protection of New Cultivars of Plants (UPOV) considers breeding history and methodology part of its evaluation of essentially derived plant cultivars (UPOV, Explanatory Notes on Essentially Derived Cultivars Under the 1991 Act of the UPOV Convention, April 6, 2017, See UPOV EDV Explanatory Notes 14 and 30).
Historically, the USPTO has considered breeding history information when determining the patentability of a new plant cultivar. (See Ex Parte C (USPQ 2d 1492 (1992) (W) and Ex Parte McGowen Board Decision in Application 14/996,093, decided June 15, 2020). In both of these cases, there were many differences cited by the Applicant when comparing the prior art and the new plant cultivar. 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.
As seen above in Ex Parte C and Ex Parte McGowan, a trait table is insufficient to differentiate cultivars by itself. It has been long established that intracultivar heterogeneity exists in crop species. Haun et al. (Plant Physiology, Feb. 2011, Vol. 155, pp. 645-655) teaches that the assumption that elite cultivars are composed of relatively homogenous genetic pools is false. (p. 645, left column). Segregation, recombination, DNA transposition, epigenetic processes, and spontaneous mutations are some of the reasons elite cultivar populations will maintain some degree of plant-to-plant variation (p. 645, right column and p. 646, left column). In addition to genetic variation, environmental variation may lead to phenotypic variation within a cultivar. (Großkinsky et al., J. Exp. Bot., Vol. 66, No. 11, pp. 5429-5440, 2015, p. 5430, left column, 1st full paragraph, and right column, 2nd full paragraph). In view of this variability, a breeding history is an essential and the least burdensome way to provide genetic information needed to adequately describe a newly developed plant.
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 help 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 cultivar.
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 line. 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 line and all other potential names for the claimed line. If Applicant’s breeding history uses proprietary line names, Applicant should notate in the specification all other names of the proprietary lines, especially publicly disclosed or patented line 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 line). 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). While applicant has provided some breeding history in the transmittal letter dated 06/03/2025, with one exception (Grandparent NJAECB), the great grandparents, grandparents and parents of the instant line all appear to be unknown in the art, as such the office requests any other names for these lines or confirmation that they are proprietary.
35 USC 112(a) clearly states “The specification (emphasis added) shall contain a written description of the invention”. In the instant application, Applicant has not included a complete breeding history for broccoli line BRM-8V21-4060SI. Therefore, the instant disclosure is insufficient because it does not address all the issues set forth above. Thus, the breeding history for the claimed cultivar as disclosed in the Specification is incomplete.
WRITTEN DESCRIPTION
Claims 16-20 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 pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
In claim 16 applicant claims a broccoli plant produced by introducing a transgene into the plant of claim 1, while claim 17 is drawn to a broccoli plant of line BRM-8V21-4060SI, further comprising a transgene. Claim 18 limits the plants of claim 17 to those having a transgene which confer traits from a list of selected traits.
Similarly, claim 19 is drawn to a broccoli plant of line BRM-8V21-4060SI, further comprising a single locus conversion, while claim 20 limits the plants of claim 19 to those wherein the single locus conversion confers a trait selected from a select group of traits.
Applicant describes broccoli line BRM-8V21-4060SI in Table 2 on pages 13-17 of the instant specification.
Applicant does not describe the genus of broccoli plants comprising additional transgenes or locus conversions derived from broccoli line BRM-8V21-4060SI. The definition in paragraph 0027, on page 8 of the specification, explains that articles “a” and “an” are used to “denote “one or more”, unless specifically noted otherwise”. In view of this definition, the terms “a mutation” and “a single locus conversion” would encompass any number of mutations or locus conversions that may confer any number of morphological and/or physiological characteristics to the mutant plant. Applicant has failed to describe said genera.
See Vas-Cath Inc. v. Mahurkar 1991 (CA FC) 19 USPQ2d 1111, 1115, which teaches that the purpose of the written description is for the purpose of warning an innocent purchaser, or other person using a machine, of his infringement of the patent; and at the same time, of taking from the inventor the means of practicing upon the credulity or the fears of other persons, by pretending that his invention is more than what it really is, or different from its ostensible objects, that the patentee is required to distinguish his invention in his specification. In this case, there is no way that a practitioner would be able to determine if any particular soybean plant is infringing the instant claims, and therefore, the public has not been put on notice with a sufficient description of the claimed invention.
Claims 16-20 are thus “reach through” claims in which the Applicant has described a starting material and at least one method step, but has not described the resulting product; and wherein the genus of products that can be produced by the recited method steps and materials is so large that one of skill in the art is not able to envision the members of the genus. (See Univ. of Rochester v. G.D. Searle & Co., 358 F.3d 916, 920-23, 69 USPQ2d 1886, 1890-93 (Fed. Cir. 2004)). Accordingly, the specification fails to provide adequate written description to support the genera of Broccoli plants produced by introducing a mutation or a single locus conversion into broccoli line BRM-8V21-4060SI.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 and 10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 8 of copending Application No. 18/754,616 (reference application), which shares an inventor and an applicant with the instant application.
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claim 1 and claim 10 are drawn to broccoli plants of line BRM-8V21-4060SI deposited under NCMA Accession No. 202211063 and broccoli plants having all of the physiological and morphological characteristics of the plant of claim 1, respectively.
Claim 8 of the reference application is drawn to an elite broccoli plant comprising a recombinant chromosomal segment on chromosome 6, wherein said recombinant chromosomal segment comprises an allele from Brassica oleracea var. capitata f. rubra that confers to said plant a purple phenotype compared to a plant not comprising the allele, wherein a sample of seed comprising said recombinant chromosomal segment has been deposited under NCMA Accession No. 202211063.
As such the instant claim is drawn to a broccoli plant of line BRM-8V21-4060SI, deposited under NCMA Accession No. 202211063, while the reference claim is drawn to an elite broccoli plant comprising a specific chromosomal segment on chromosome 6, wherein a sample of seed comprising said recombinant chromosomal segment has been deposited under NCMA Accession No. 02211063.
Both inventions are drawn to purple broccoli plants having a specific chromosomal segment on chromosome 6 wherein representative seeds have been deposited under NCMA Accession No. 02211063. Therefore, while the language of the claims differs it appears that both claims are drawn to the same scope and therefore instant claims 1 and 10 are provisionally rejected on the grounds of non-statutory double patenting over claim 8 of the reference application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Close Prior Art
The claims all require broccoli line BRM-8V21-4060SI which appears to be free of the art.
The closest prior art appears to be found in US Patent Application Publication, van den Bosch, US 2013/0198885 A1, published August 1, 2013, which is drawn to Broccoli Hybrid RX 05900099 and parents of this variety. The instant and reference cultivars share many characteristics including cotyledon color, plant height, number of stems, leaf width, outer leaf color and male sterility (Table 2 or instant application and reference publication). Importantly, the instant and reference cultivars differ in parentage, breeding history, days to harvest, cotyledon anthocyanin, hypocotyl anthocyanin, growth habit, head length, head color and color of head leaves. As such, the instant broccoli line appears to be free of the art.
Conclusion
No claims are allowed.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN JAMES SULLIVAN whose telephone number is (571)272-0561. The examiner can normally be reached 7:30 to 5:00.
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 on (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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//BRIAN JAMES SULLIVAN/ Examiner, Art Unit 1663
/Amjad Abraham/SPE, Art Unit 1663
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