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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 9/8/2025 has been entered.
Status of the Claims
No claims were amended or newly added. Claims 1-10, 13, 14, 16-18, 20, 22, 25-35, 37-48, 50-52 were previously cancelled. Accordingly, claims 11, 12, 15, 19, 21, 23, 24, 36, 49 and 53-57 remain pending in the application and are currently under examination.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 11, 12, 15, 19, 21, 23, 24, 36, 49 and 53-57 are rejected under 35 USC 103 as being obvious over OESTERR CHEM WERKE (GB 393,808 A, Jun. 15, 1933, hereinafter as “Oesterr”) in view of Lorsbach et al. (US 2013/0152233 A1, Jun. 13, 2013, hereafter as “Lorsbach”), Ben Yehuda et al. (USPN 6,797,302 B1, Sep. 28, 2004, hereafter as “Ben Yehuda”), Ng (US 2013/0047505 A, Feb. 28, 2013, hereinafter as “Ng”) and Ruban et al. (US 2011/0000411 A1, Jan. 6, 2011, hereinafter as “Ruban”).
The instant claims are drawn to a method of enhancing germination of seeds comprising combining a transition metal catalyst and hydrogen peroxide in an acidic solution and exposing the seeds to the solution for a treatment period of between about 30 minutes and about 8 hours, wherein the hydrogen peroxide is present at a concentration of between 0.02% and 0.4% by volume, wherein the transition metal catalyst comprises a transition metal salt comprising an iron salt.
Regarding instant claims 11, 49, 56 and 57, Oesterr teaches seeds for sowing that are treated with hydrogen peroxide, peroxides or per-salts for a protracted period substantially longer than fifteen minutes. The reagent used may be in the form of a solution, a suspension or a dry powder. The seeds may be completely covered in a large vat with the liquid or only moistened, as by spraying, with a little liquid and then stirred. Hydrogen peroxide is used in a strength of 0.5 to 2 percent. The duration of the treatment is usually from 12 to 24 hours when using hydrogen or other peroxide solutions or suspensions of solid per-salts in water; with dry peroxides or per-salts the treatment may extend for days or months. Oesterr teaches that treatment using hydrogen peroxide chiefly produces an increase of the sprouting energy, vitalization and a strengthening of the seeds so that the development after the sowing, takes place as quickly as is possible in view of the given conditions of soil (see column 2, lines 62-90).
The teachings of Oesterr differ from the claimed invention in that the claimed invention recites, “hydrogen peroxide is present at a concentration of between 0.02% and 0.4%” whereas Oesterr teaches hydrogen peroxide in concentrations of 0.5 to 2%. It is also noted that Oesterr expressly teaches that higher and lower concentrations may also be used (page 2, lines 28-29). Also, MPEP 2144.05(I) states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists… Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”. Thus, Oesterr’s teaching of “0.5%” is “merely close” to the claimed “0.4%” and, as such, a prima facie case of obviousness exists.
Oesterr is silent to the inclusion of an iron salt such as FeSO4.
Lorsbach teaches seed treatments comprising 5-flurocytosine (abstract). Lorsbach also teaches copper sulfate and ferrous sulfate are known herbicides that not phytotoxic to seeds ([0037]).
Ben Yehuda teaches processes and compositions for prevention of qualitative deterioration and quantitative loss of plant matter and foodstuffs, during all stages of storage and handling, including pre- and pose-harvest, pre- and post-planting, distribution and marketing (abstract). In a particular embodiment, Ben Yehuda teaches applying a treatment process and/or composition to seeds (paragraph bridging cols 6-7). Ben Yehuda also teaches particular compositions comprising hydrogen peroxide and metals ions selected from the groups consisting of copper, zinc, nickel, iron, manganese, molybdenum, potassium or combinations thereof (col. 9, lines 15-37).
The references are all drawn to treatments of seeds, thus, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to substitute the copper sulphate of Oesterr with an iron salt such as iron sulfate as suggested by Lorsbach and Ben Yehuda with a reasonable expectation of success. A skilled artisan would have been motivated to do so because the prior art teaches that copper sulfate and iron sulfate are functional equivalents, that is, both are known as seed treatments as herbicides, and both iron and copper ions are taught in the prior art as capable of being combined with hydrogen peroxide in the treatment of seeds. It is noted that a skilled artisan would also have known that copper sulfate and iron sulfate react similarly with hydrogen peroxide leading to a Fenton-type of reaction where the respective metal ions react with the hydrogen peroxide. Thus, a skilled artisan would have reasonably expected that substituting copper sulfate with iron sulfate would produce a similar reaction and, thereby, a similar activity (e.g., enhancing germination) on a seed.
Another difference between the invention of the instant application and that of Oesterr is that Oesterr does not expressly teach that: the solution is acidic and has a pH in the range of about 3.0 to about 6.0 (limitation of instant claims 12 and 55); treating the seeds with the solution by priming or surface application with or without gels (limitation of instant claim 21); the seeds comprise cereal grains for malting (limitation of instant claims 23 and 36); the seeds are germinated under stressful conditions, and wherein the stressful conditions comprise high or low temperature, high or low moisture, anaerobic stress, inadequate amounts of one or more nutrients, and/or high salinity (limitation of instant claim 24).
However, Ng teaches a ready to use seed treatment composition, wherein the seed treatment composition consists essentially of: ascorbic acid; choline chloride; indole-3-butyric acid; salicylic acid; at least one anti-fungal agent; at least one solvent; at least one buffer; and water as well as a method of treating seeds, the method comprising: contacting seeds with a liquid ready to use seed treatment composition, the liquid ready to use seed treatment composition comprising: between about 0.01% to about 0.5% ascorbic acid by weight of the liquid ready to use seed treatment composition; between about 0.01% and about 0.1% choline chloride by weight of the liquid ready to use seed treatment composition; between about 0.0005% and about 0.01% indole-3-butyric acid by weight of the liquid ready to use seed treatment composition; between about 0.001% and about 0.03% salicylic acid by weight of the liquid ready to use seed treatment composition; and water (claims 9 and 10 of Ng) wherein the seeds are selected from the group consisting of: corn, wheat (cereal grain of the instant claims), barley, rice (cereal grain of the instant claims), soybean, cucumber, cotton, lettuce, pepper, and watermelon (claim 14 of Ng). Ng teaches that the seed treatment composition has an acidic pH. In one example, the seed treatment composition has a pH of less than about 4.0 in its ready to use form. In another example, the seed treatment composition has a pH of less than 3.7. In a further example, the seed treatment composition has a pH of 3.5 or less. A buffering agent may be used to adjust the pH of the seed treatment composition and/or prevent a change in pH ([0023]). Ng teaches that embodiments of the invention can accelerate alpha amylase synthesis and secretion in seed germination, promoting mobilization of seed reserved starch and increasing the chemical energy and substrates necessary for the emergence of roots and shoots. Increased alpha-amylase (alpha-amylase) synthesis and secretion may lead to establishment of strong seedlings which are fast growing and have strong resistance against stresses, such as drought, cold, and heat ([0012]). Ng teaches that when treating seeds with the seed treatment composition, the seeds are contacted with the composition prior to sowing the seeds. The seeds may be treated using a batch process or a continuous process. Contacting seeds with the composition can include coating the seeds or soaking the seeds in the seed treatment composition. For example, the seeds can be sprayed, coated or mixed with the liquid seed treatment composition ([0026]).
Another difference between the invention of the instant application and that of Oesterr is that Oesterr does not expressly teach that the buffer comprises a polyvalent carboxylic acid present in the solution at a concentration between about 5 mM and about 100 mM, wherein the polyvalent carboxylic acid comprises citrate, oxalate, aconitate, isocitrate, alpha-ketoglutarate, succinate, fumarate, malate, oxaloacetate, pyruvate and/or a mixture thereof (limitation of instant claim 15).
However, Ruban teaches biologically active nanochips for treating seeds of agricultural plants in order to improve germination conditions of seeds and development of plants and for protecting plants from anticipated and averaged adverse conditions using biologically active nanochips that may include ions of zinc, copper, cobalt, iron, lithium, manganese, and other trace elements (abstract and [0045] of Ruban) in a broad range of 1*10-10 % to 100% ([0056] of Ruban). Ruban also teaches the use of succinic acid (claim 8 of Ruban). Ruban teaches that their methods and compositions have been known in the art for treating seeds to improve productivity of high crops, tolerance to changes in weather conditions, resistance to pathogenic microorganisms and cultural plant pests, etc. ([0004]).
The disclosures of both Ng and Oesterr are directed to compositions used for treating seeds. Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to combine the teachings of Ng and Oesterr to arrive at a composition for enhancing or controlling germination of seeds using a transition metal catalyst and hydrogen peroxide. Ng teaches that a buffering agent may be used to adjust the pH of the seed treatment composition and/or prevent a change in pH ([0023]). Thus, one of ordinary skill in the art would have been motivated to make this combination with the expectation of adjusting the pH of the seed treatment composition and/or prevent a change in pH. From the teaching of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the invention, as evidenced by the references, especially in the absence of evidence to the contrary.
The disclosures of both Oesterr and Ruban are directed to compositions used for treating seeds. Ruban teaches that a shortage of elements such as zinc, copper, cobalt, iron, lithium, manganese, molybdenum may result in plant metabolism disorders, lower yields, and impaired quality of produce ([0045]) and that their objective is to enhance seed germination and seed tolerance to pathogens, salinization, draught, frost, and other adverse environmental effects as instantly claimed ([0013-0021]). Thus, one of ordinary skill in the art would be motivated to make this combination with the expectation of providing a method of enhancing seed germination and seed tolerance to pathogens, salinization, draught, frost, and other adverse environmental effects. From the teaching of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of the invention, as evidenced by the references, especially in the absence of evidence to the contrary.
With regards to the limitation of instant claims 11, 19, 53, and 54 wherein Applicant claims exposing the seeds to the claimed solution for 30 minutes to 8 hours at 10-25 °C and washing the seeds to remove the solution after the treatment period, this is merely judicious selection of an enclosed volume by one of ordinary skill in the art in the absence of evidence to the contrary.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the instant claims would have been obvious within the meaning of 35 USC 103(a) over the combined teachings of Oesterr, Lorsbach, Ben Yehuda, Ng and Ruban.
Response to Arguments
Applicant's arguments, filed 9/8/2025, regarding the 103 rejection over Oesterr, Lorsbach, Ben Yehuda, Ng and Ruban have been fully considered but they are not persuasive.
Applicant argues that Lorsbach and Ben Yehuda teach away from their combination with Oesterr Chem Werke because they are taught to be useful for different purposes, and that any combination of these references is made based on impermissible hindsight. Applicant asserts that Lorsbach relates to an anti-fungal treatment for seeds containing 5-fluorocytosine which can optionally further include a herbicide such as copper sulfate or ferrous sulfate. Applicant asserts that herbicides are active agents that are used to prevent plant growth. Applicant asserts that the primary reference, Oesterr Chem Werke is concerned with increasing the sprouting energy of the seeds, whereas Lorsbach refers to ferrous sulfate as a herbicide. Applicant asserts that a person skilled in the art would recognize that the purpose of a herbicide is to destroy or at least inhibit plant growth and thereby would not be motivated to add a compound that is expressly taught as being a substance designed to kill or inhibit the growth of plants. Regarding the Ben Yehuda reference, applicant asserts that Ben Yehuda teaches the compositions are used to prevent sprouting and rooting whereas Oesterr Chem Werke is aimed at increasing sprouting energy of seeds. Remarks, pages 5-7.
In response, it is respectfully submitted that Oesterr is drawn to a treatment that increases sprouting energy and vitalization and strengthening of the seeds so that the development after the sowing, takes place as quickly as is possible (col. 2, lines 73-80). Oesterr also teaches that said treatment also assists in elimination and destruction of organisms that are injurious to the plants (col. 2, lines 68-72). Lorsbach is drawn to seed treatments comprising 5-fluorocytosine to prevent or control plant diseases (abstract). Lorsbach teaches that any material to which the composition can be added may be used, provided it yields the desired utility without significant interference with the desired activity of the pesticidally active ingredients as pesticidal agents and improved residual lifetime or decreased effective concentration is achieved ([0018]). Lorsbach teaches said composition provides a significant fungicidal effect, and may further improve the health of a plant, improve the yield of a plant, improve the vigor of a plant, improve the quality of the plant and improve the tolerance to abiotic and/or biotic stress ([0039]). Lorsbach also explicitly teaches herbicides that are not phytotoxic to the seeds, seedlings, or plants of interest can be included in said compositions and names the particular herbicides, copper sulfate and ferrous sulfate ([0037]). Accordingly, Lorsbach suggests that the inclusion of herbicides, copper sulfate and ferrous sulfate, does not interfere with the desired activity/benefits of the composition. Ben Yehuda teaches processes and compositions for prevention of qualitative deterioration and quantitative loss of plant matter and foodstuffs, during all stages of storage and handling including applying a composition to seeds (abstract; paragraph bridging cols 6-7). Ben Yehuda teaches particular compositions comprising hydrogen peroxide and metals ions selected from the groups consisting of copper, zinc, nickel, iron, manganese, molybdenum, potassium or combinations thereof (col. 9, lines 15-37). Ben Yehuda also teaches that the compositions promote enhanced sprouting capability among other benefits (col. 7, lines 8-33). Accordingly, not only does Ben Yehuda teach the particular combination of hydrogen peroxide and metals ions selected from the groups consisting of copper, zinc, nickel, iron, manganese, molybdenum, potassium or combinations thereof, but also teaches that the compositions promote enhanced sprouting capability. MPEP 2123 states that a teaching away is a disclosure that criticizes, discredits, or otherwise discourages the solution claimed. In this instance, the references are all drawn to protecting seeds from organisms and/or plant disease and improving the overall health of the seeds such that plant health is also improved. Nothing in Lorsbach and Ben Yehuda criticizes, discredits, or otherwise discourages the solution claimed. Thus, contrary to applicant’s assertions, Lorsbach and Ben Yehuda do not teach away from the teachings of Oesterr.
Applicant reiterates previous remarks as why a person of ordinary skill in the art would not combine the teachings of Ng, Ruban and Oesterr Chem Werke to arrive at the claimed invention. Remarks, page 7.
In response, it is respectfully submitted that for the same reasons of record, applicant’s arguments are not persuasive.
Thus, for these reasons, the rejection is maintained.
Conclusion
All claims have been rejected; no claims are allowed.
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CASEY HAGOPIAN whose telephone number is (571)272-6097. The examiner can normally be reached on M-F 9:00 am - 3:30 pm.
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, Sue Liu can be reached on 571-272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
Casey S. Hagopian
Examiner, Art Unit 1617
/CARLOS A AZPURU/Primary Examiner, Art Unit 1617