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 without traverse of cultivar ‘CMC-001’ in the reply filed on May 4, 2026 is acknowledged.
Objection to the Disclosure
37 CFR 1.163
The following is a quotation of section (a) of 37 CFR 1.163:
(a) The specification must contain as full and complete a disclosure as possible of the plant and the characteristics thereof that distinguish the same over related known varieties, and its antecedents, and must particularly point out where and in what manner the variety of plant has been asexually reproduced. In the case of a newly found plant, the specification must particularly point out the location and character of the area where the plant was discovered.
35 USC 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(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 of carrying out his invention.
The following is a quotation of 35 U.S.C. 112(b):
CONCLUSION.-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.
As specific to United States Plant Patent applications, the specifics of 37 CFR 1.164 (reproduced below) are controlling:
The claim shall be in formal terms to the new and distinct variety of the specified plant as described and illustrated, and may also recite the principal distinguishing characteristics. More than one claim is not permitted.
In plant applications filed under 35 U.S.C 161, the requirements of 35 U.S.C. 112 are limited. The following is a quotation of 35 U.S.C. 162:
No plant patent shall be declared invalid for noncompliance with section 112 of this title if the description is as complete as is reasonably possible. The claim in the specification shall be in formal terms to the plant shown and described.
The disclosure is objected to under 35 CFR 1.163(a) and under 35 U.S.C. 112(a), first paragraph, because the specification presents less than a full, clear, and complete botanical description of the plant and the characteristics which define same per se and which distinguish the plant from related known cultivars and antecedents.
More Specifically:
Applicant should change the title of the instant application to --Cacao Plant Named ‘CMC-001’--.
Applicant should delete the claim and insert the following claim: --A new and distinct variety of Cacao Plant Named ‘CMC-001’ as illustrated and described herein.-- (MPEP 1605).
Applicant should correct the abstract by only referring to the instant plant.
Where color is a distinctive feature of the plant, the color should be positively identified in the specification by reference to a designated color as given by a recognized color dictionary or color chart (MPEP 1605). The Royal Horticultural Society Colour Chart is recommended.
Applicant should set forth in the specification a brief comparison between the instant plant and its parents, closest comparison cultivar, and its sibling cultivars (‘CMC-002’, ‘CMC-011’, ‘CMC-019’, and ‘CMC-024’). Such need not be in any great detail but should at least distinguish the plants from each other (MPEP 1605).
Page 1, lines 8-14 should be deleted and the following should be inserted in its place:
--Variety denomination: the varietal denomination of the cacao variety disclosed herein is ‘CMC-001’.--.
Page 2, line 2, Applicant should delete “improved varieties” and insert --an improved variety--.
Page 2, line 4, Applicant should delete “Each” and insert --The-- in its place.
Applicant should set forth in the specification the age of the plant when illustrated.
Page 2, lines 7-9, Applicant should delete lines 7-9 and insert the following:
--The new cacao plant is illustrated by the accompanying photographs. The colors shown are as true as can be reasonably obtained by conventional photographic procedures.--.
Applicant should delete paragraphs [0014]-[0238] (page 2, line 15 to page 9, line 26) and FIGs 6-231 should be cancelled because the photographs depicted in FIGS 6-231 are for other cacao varieties. Photographs of comparison varieties are not necessary as the claimed invention is for cacao plant ‘CMC-001’. See MPEP 608.02(g).
Page 9, line 29, Applicant should delete “varieties” and insert --variety-- in its place.
Page 10, before line 9, Applicant should set forth in the specification the age of the plant when described.
Page 10, line 9, Applicant should delete “In certain aspects, the” and insert --The-- in its place.
Page 10, line 12, Applicant should set forth in the specification the patent status for ‘GU-144C’ and ‘MC-08091’. If patented, Applicant should set forth in the specification the U.S. Plant Patent number after the cultivar name. If not patented, such should be inserted after the cultivar name.
Applicant must particularly point out where and in what manner the variety has been asexually reproduced (MPEP 1605). It is noted Applicant has stated in what manner the instant plant has been asexually reproduced but has not stated the location on line 14 of page 10.
Page 10, line 14, Applicant should set forth in the specification the patent status for ‘VB-1151’. If patented, Applicant should set forth in the specification the U.S. Plant Patent number after the cultivar name. If not patented, such should be inserted after the cultivar name.
Page 10, line 14, Applicant states “open-pollinated ‘VB-1151’ rootstock”. It is not understood what applicant is intending “open pollinated” to mean. Correction and/or clarification is necessary.
In the specification, Applicant has not disclosed a detailed, written botanical description of the claimed plant to distinguish it over other cacao varieties. These characteristics should include overall plant information (height, width, shape, vigor, root system), detailed information regarding the stem, foliage, flower buds, immature/mature inflorescence, reproductive organs, disease/pest resistance/susceptibility, crop time, etc. Information should include a botanical description which should be as detailed as possible in such that colors (using a recognized color chart) on all surfaces should be disclosed as well as textures.
Applicant set forth in the specification information relative to the average height and diameter of the instant tree. Additionally, Applicant should disclose the average number of branches, length and diameter, and color as well as bark color. Applicant should also disclose the trunk diameter at a given height above the ground. All colors should be referenced by a recognized color dictionary or color chart as stated in “D” above.
Applicant should set forth in the specification information relative to the instant plant’s petioles including the typical and observed petiole length, diameter, texture, and color with reference to a recognized color dictionary or color chart as stated in “D” above.
Applicant should set forth in the specification information relative to the instant plant’s leaves including the typical and observed leaf arrangement, shape, margin descriptor, texture (both surfaces), juvenile and mature color (both surfaces), venation pattern, and venation color. All colors should be referenced by a recognized color dictionary or color chart as stated in “D” above.
Page 10, line 16, Applicant states young flush leaf color is “Medium red”. The recitation “Medium red” is vague and insufficient in this instance. Applicant should set forth in the specification a color designation for the “Medium red” coloration with reference to a recognized color dictionary or color chart as stated in “D” above.
Page 10, lines 23 and 24, Applicant states “The intensity of green in immature leaves is medium red,”. It is not understood how an intensity can be a color. Correction and/or clarification is necessary.
Applicant should set forth in the specification the typical and observed inflorescence depth, diameter, number of petals per inflorescence, petal shape, length, width, apex, margin, and base descriptors, texture (both surfaces), and color (both surfaces). Colors should be referenced by a recognized color dictionary or color chart as stated in “D” above.
Applicant should set forth in the specification the typical and observed sepal number, shape, apex and margin descriptors, texture (both surfaces), and color (both surfaces) with reference to a recognized color dictionary or color chart as stated in “D” above. In addition, Applicant states anthocyanin is “Absent or very low”. Because the anthocyanin can by “very low”, Applicant should set forth in the specification a color designation for the anthocyanin with reference to a recognized color dictionary or color chart as stated in “D” above.
Applicant should set forth in the specification information relative to the instant plant’s reproductive organs. Applicant should disclose such information and describe the different structures in the specification.
AB. Applicant should set forth in the specification information relative to the instant plant’s cold tolerance and drought/heat tolerance.
AC. Applicant should positively set forth in the specification the instant plant’s known shipping and storage characteristics of the instant plant’s fruit such as the number of days the fruit has been stored under specific conditions.
AD. Applicant should set forth in the specification the names, including Latin names (i.e. genus and species), of any pests and/or diseases to which the instant plant is resistant and/or susceptible.
AE. Page 10, lines 19-21, Applicant should set forth in the specification additional information relative to the instant plant’s fruit including the typical and observed fruit shape.
AF. Page 11, line 2, Applicant states fruit/pod color is “yellow”. The recitation “yellow” is vague and insufficient in this instance. Applicant should set forth in the specification a color designation for the “yellow” coloration with reference to a recognized color dictionary or color chart as stated in “D” above.
AG. Page 11, line 4, Applicant states pulp is “white”. The recitation “white” is vague and insufficient in this instance. Applicant should set forth in the specification a color designation for the “white” coloration with reference to a recognized color dictionary or color chart as stated in “D” above.
AH. Page 11, lines 6-8, Applicant should set forth in the specification additional information relative to the instant plant’s seed including the typical and observed seed texture and color with reference to a recognized color dictionary or color chart as stated in “D” above.
AI. Page 11, line 8, Applicant states the instant plant’s cotyledon color is “dark red”. The recitation “dark red” is vague and insufficient in this instance. Applicant should set forth in the specification a color designation for the “dark red” coloration with reference to a recognized color dictionary or color chart as stated in “D” above.
AJ. Page 10, line 26, Applicant states the instant plant’s ligula color is “yellow’. The recitation “yellow” is vague and insufficient in this instance. Applicant should set forth in the specification a color designation for the “yellow” coloration with reference to a recognized color dictionary or color chart as stated in “D” above.
AK. Page 10, line 27, Applicant states the instant plant’s staminode has strong anthocyanin coloration. Applicant should set forth in the specification a color designation for the strong anthocyanin coloration with reference to a recognized color dictionary or color chart as stated in “D” above.
AL. Page 10, line 27, Applicant states the instant plant’s pedicels have a weak anthocyanin coloration. Applicant should set forth in the specification a color designation for the anthocyanin coloration with reference to a recognized color dictionary or color chart as stated in “D” above. In addition, Applicant should set forth in the specification the typical and observed pedicel length, diameter, texture, and color with reference to a recognized color dictionary or color chart as stated in “D” above.
AM. Page 11, Table 1, lines 15 and 30, Applicant states “CCN 51”. This recitation appears to be a cultivar designation. If such is accurate, Applicant should place single quotation marks around “CCN 51” as this is the proper way to set forth a cultivar designation.
AN. Page 12, line 1 to page 81, last line in Table 36, Applicant should delete this information as it is not necessary to set forth this information relative to other cultivars in the specification unless the cultivars are the closest cultivars, parent cultivars, or sibling cultivars to the instant cultivar.
AO. Page 82, line 1, Table 37 to page 114, Table 51, last line, Applicant should place single quotation marks around the cultivar names as this is the proper way to set forth a cultivar name.
AP. Page 100, Table 47, line 1 to page 103, Applicant should set forth in the specification what applicant intends “total number of trees” and “count” to mean. In addition, Applicant should place single quotation marks around the cultivar names as this is the proper way to set forth a cultivar name.
AQ. Page 103, and page 103, Table 48, lines 1 and 2, and page 107, Table 49, lines 1-3, Applicant should set forth in the specification what “TDBW” means and what the abbreviations mean.
AR. Page 110, Table 50, lines 1-3, Applicant should set forth in the specification what the abbreviations mean.
AS. Page 114, Table 51, lines 1-2, Applicant should set forth in the specification what the abbreviations mean.
The above listing may not be complete. Applicant should carefully review the disclosure and import into same any corrected or additional information which would aid in botanically identifying and/or distinguishing the cultivar for which United States Plant Patent protection is sought.
Claim Rejection
35 U.S.C. 112, 1st & 2nd Paragraphs
Claim 1 is rejected under 35 U.S.C. 112, first and second paragraphs as not being supported by a clear and complete botanical description of the plant for the reasons set forth in the Objection to the Disclosure Section above.
Examiner Comments
The Examiner acknowledges Applicant’s reply on May 4, 2026 in response to the Election/Restriction requirement mailed February 5, 2026. Applicant states “Applicant reserves the right under 35 U.S.C. § 121 to file one or more divisional applications directed to the non-elected subject matter during the pendency of this application, or an application claiming priority from this application.”. If Applicant decides to file an application under 35 U.S.C. § 121 directed to one of the non-elected cultivars, Applicant should take this non-final office action into consideration and include the requested information relative to the chosen plant into the specification, claim, and abstract, when setting forth information in the divisional application. Including the requested information would aid in providing a description of the claimed plant as complete as reasonably as possible. The divisional application would be examined upon its own merits.
Future Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KENT L BELL whose telephone number is (571)272-0973. The examiner can normally be reached M- Th, 6 - 4:30pm.
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, Bratislav Stankovic can be reached at 571-270-0305. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KENT L. BELL/
Primary Examiner
Art Unit 1661
/KENT L BELL/Primary Examiner, Art Unit 1661
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