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 .
Claim Status
Claims 1-20 are pending and examined on the merits.
Claims 1 and 18-19 are currently amended.
Response to Arguments - Specification
Applicant's amendments filed 19 May 2026 have overcome the rejection of record.
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.
Claims 3-4, 6-9, and 19-20 remain 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 pre-AIA the applicant regards as the invention.
Claims 3-4, 6-9, and 19-20 all recite “locus conversion.” In regard to “locus conversions, there are two screen captures below. One states that “one or a few traits” may be modified by locus conversions. Paragraph 82 states that a locus conversion of the claimed variety can have as little as 92% of the base genetics of 2PGLR95A. Allowing for 8% genetic difference, yet saying that “one or a few traits” may be modified by locus conversions seems incongruous as changing the genetic base by 8% would almost certainly result in more than a few traits being altered compared to the deposited variety. While Applicant is allowed to be their own lexicographer, the provided definitions must be clear. Given conflicting language in the specification regarding “locus conversion,” the metes and bounds of the claims cannot be determined.
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Response to Arguments - Indefiniteness
Applicant's arguments filed 19 May 2026 have been fully considered but they are not persuasive.
Applicant urges that the specification has additional recitations (paragraph 28 for example) which provide other statements about locus converted plants and that the paragraphs cited by the Examiner, “merely further the stated definition by providing clarity around percent of base genetics.”
This argument is not persuasive, because the statements in the specification have not provided a clear statement over what can and cannot be considered a locus converted plant. All the language in the “definition” cited in paragraph 28 is so non-limiting that a clear definition cannot be ascertained. “A locus converted plant can include, for example…”
Lack of Written Description
The following is a quotation 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.
Claims 3-4, 6-9, and 19-20 remain 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.
The claims are broadly drawn to plants, plant parts, or seeds of sorghum variety 2PGLR95A further comprising “a locus conversion.” In regard to locus conversions, there are two screen captures above. One states that “one or a few traits” may be modified by locus conversions. Paragraph 82 states that a locus conversion of the claimed variety can have as little as 92% of the base genetics of 2PGLR95A. Allowing for 8% genetic difference, yet saying that “one or a few traits” may be modified by locus conversions seems incongruous as changing the genetic base by 8% would almost certainly result in more than a few traits being altered compared to the deposited variety.
The instant disclosure describes traits of the deposited variety 2PGLR95A and the hybrid R20D2043 who has variety 2PGLR95A as one of its inbred parents (Tables 1-2). They also contemplate variants of variety 2PGLR95A based on locus conversion yet are unclear as to how phenotypically different a plant may be from 2PGLR95A and still be deemed a locus conversion of 2PGLR95A given the seeming contradiction that the genetic base may be changed by 8% yet only a “few traits” may be altered compared to the deposited variety.
These descriptions are insufficient, because they fail to describe the potentially broad scope of any locus conversion of 2PGLR95A having as little as 92% of the genetic base of 2PGLR95A.
Given the broad scope of the claimed genus, the lack of working examples and the failure to describe the structures and/or phenotypes required for a plant to be deemed a locus conversion of 2PGLR95A, one of skill in the art would not have recognized that Applicant was in possession of the claimed genus at the time of filing.
Response to Arguments – Lack of Written Description
Applicant's arguments filed 19 May 2026 have been fully considered but they are not persuasive.
Applicant urges that the claims have been amended to additionally recite, “otherwise comprises all of the physiological and morphological characteristics of sorghum variety 2PLYR98A when grown under the same environmental characteristics.”
This argument is not persuasive, because a person of ordinary skill would not understand what is encompassed within the scope of a locus conversion of a plant (see indefiniteness rejection above) and thus would not be able to discern the claimed subject matter from other materials.
Conclusion
No claims are allowed. THIS ACTION IS MADE FINAL. 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 extension fee 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 MATTHEW R KEOGH whose telephone number is (571)272-2960. The examiner can normally be reached M-Th 7-4:30, half day on Fridays.
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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/MATTHEW R KEOGH/Primary Examiner, Art Unit 1663
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