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 .
Receipt is acknowledged of Amendments and Remarks filed on 09/24/25. Claim 31 has been amended, claims 56-58 have been cancelled and no new claims have been added. Accordingly, claims 31, 33-35, 37-43 and 55 remain pending and under examination on the merits.
Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
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.
Applicant’s claims:
Claim 31 is drawn to a method for enhancing pre-emergent seed conditions, comprising: placing one or more crop seeds in a furrow; and applying a sugar into the furrow simultaneously with said crop seeds at the time of planting such that the sugar is immediately available to microflora in soil surrounding the crop seed when the furrow is closed, said application of sugar being independent of the crop seed placement, said sugar being applied at a rate of at least 25 pounds per acre and not to exceed 250 pounds of sugar per acre, wherein the sugar is selected from the group consisting of: a monosaccharide, a disaccharide, a polysaccharide and combinations thereof and exposing the crop seeds to increased levels of carbon dioxide as the sugar is consumed by the microflora as the crop seeds experience a pre-emergence growth stage, said increased levels of carbon dioxide represented by increased carbon dioxide burst concentrations in comparison to other crop seeds that are planted in other furrows absent any sugar, and wherein the sugar is selected from the group consisting of sucrose, fructose, dextrose and cellulose.
Claims 31, 33-35, 37-43 and 55 are rejected under 35 U.S.C. 103 as being unpatentable over Lehtonen et al (WO 2013/128080) in view of Nonomura et al (5,958,104), Stoller et al (US 20130065762) and FAO (Chapter 3. Furrow Irrigation; of record) as evidenced by Anthony et al (WO 02058466).
Lehtonen et al teach fertilizer compositions comprising a carbon source and a source of nitrogen. Carbon is in the form that can be readily up-taken by soil bacteria, and the fertilizer is used to promote uptake of endogenous soil nutrient resources by plant (abstract). An object of Lehtonen’s invention is to provide alternative ways of feeding soil using novel fertilization compositions comprising at least carbon and nitrogen sources. Particularly, the object is to provide fertilizer that enhances function of natural soil bacteria resulting in enhanced microbial activity and thereby availability of mineralized nutrients in soil and activated humus biosynthesis (pg.2, In.28 to pg.3, In.1). In an embodiment, the fertilizer composition is used for fertilizing soil bacteria and plants. Among the preferable uses of the fertilizer composition is for agricultural plant production (pg. 13, In.27-30).
Lehtonen discloses that it is known in the art that addition of glucose into soil activates soil bacteria to degrade soil organic matter in a process called priming effects. Priming effects have been found to depend on the microbial carbon content of the soil: priming effect vs. easily-available substrate carbon added to the soi/microbial carbon content of the organic carbon content of the soil (% by weight). This dependence of glucose induced priming effects is linear to 15% by weight (of added priming carbon in relation to microbial carbon), and after 50% by weight an exponential decrease or even a switch to negative priming effect is often observed at about 500 or 600% by weight. Lehtonen discloses that it is also known nitrogen compounds, e.g., amino acids or fertilizer nitrogen, at low levels strengthen the priming effects. Soil bacteria need two energy carbons for cell respiration to bind one carbon into their cell structure. Soil bacteria bind carbon and nitrogen in their cell structure in the carbon/nitrogen ratio 5:106:1. Nutrients from the turnover of soil bacterial will become available plant nutrients (pg.1, In.21 to pg.2, In.2).
Among the suitable carbon sources include mono- and disaccharides or any mixture thereof, glucose being the most typical monosaccharide, and sucrose as the disaccharide (pg.5, In.5-30). The priming carbon content should be at least 5% by weight (Lehtonen claim 1). In an embodiment, the priming carbon content is at least 33% by weight, most preferably at least 55% by weight (pg.9, In.29-32; Lehtonen claim 2). The amount of the easily available carbon in said carbon source is 2-35% by weight calculated form the dry weight of the fertilizer. The amount of carbon to be added is dependent on the organic carbon content in the soil and on the microbial carbon content in the organic carbon. Typical amounts in an average Finnish agricultural soil amounts to from 100 to 350 kg/ha, preferably from 200 to 300 kg/ha of added priming carbon (pg.5, In.31 to pg. 6 ln. 3 and Table 1).
Lehtonen discloses that the priming carbon source in the fertilizer product is preferably an industrial or agricultural by-product which is accepted or will be accepted for use as a fertilizer or soil amendment (pg.6, In.25-27).
Lehtonen discloses that the nitrogen source is preferably an organic nitrogen source or ammonium nitrogen source or a combination of both. Ammonium nitrogen sources include urea and various ammonium salts and urea and ammonium containing fertilizers (pg.9, In. 1-11).
One aspect of the invention is a method for fertilizing soil comprising applying priming carbon, nitrogen and optionally other nutrients to the soil. When carbon need is high, it may be advisable to apply, e.g. 2 t/ha of carbon source separately, and then the rest in conventional time or when needed. Sometimes the nutrients may be applied together with e.g. sludge manures, which are poor in nutrients (pg 12. Ln 4-13).
The fertilizer composition is suitable to be applied in any known method such as granulates. The composition can be applied to cultivated soil (pg.12, In.20-23). In a method of manufacturing the fertilizer, the steps comprise: providing a priming carbon source and nitrogen source; and forming a dry or wet mixture of components (reading on wherein the fertilizer and sugar are mixed prior to application); and optionally drying said mixture to decrease water content of wet or moist mixture (pg.13, In. 1-9). In an embodiment, the mixture is formed into a granulated fertilizer product (Lehtonen claim 13). Granulated product is obtained by forming the mixture having suitable humidity into granulated fertilizer (pg.13, In.17-18). Granules are formed using conventional methods (pg. 13, In.19-21).
Suitable carbon sources selected from group comprising hydrolysed, various mono- and disaccharide fractions from sugar industries and the mixtures thereof (pg. 6, ln. 27-32).
Lehtonen does not appear to explicitly disclose applying their fertilizer composition simultaneous with planting a crop seed, or the sugar application rate as recited in the instant claim 31. These are known in the art as taught by Nonomura et al and Stoller et al as evidenced by Anthony et al.
Nonomura et al teach methods for treating plants, and for enhancing the growth of plants, the methods include applying an alkyl glucoside compound to the plant (See abstract).
It is disclosed that the said alkyl glucosides function in a manner similar to conventional fertilizers, and are used to enhance growth in juvenile and mature plants, as well as cuttings and seeds. The said alkyl glucoside compounds may be applied to the plant at a location including leaves, root, seed, etc, (Col. 3, lines 49-58).
It is further disclosed that the alkyl glucoside compounds employed in the methods of the present invention may be applied to the plants using conventional application techniques. Plants nearing or at maturity may be treated at any time before and during seed development. Fruit bearing plants may be treated before or after the onset of bud or fruit formation. Improved growth occurs as a result of the exogenus application of alkyl glucoside (Col. 4, lines 58-65).
The said compositions may also advantageously include one or more conventional fertilizers, such as fertilizers containing elements such as nitrogen, phosphorus, potassium, elevated carbon dioxide, etc. In order to support rapid vegetative growth above normally fertilized crops, the most highly preferred fertilizer for inclusion in methyl glucoside formulations are nitrogenous fertilizers, especially nitrate, urea, and ammonium salts (Col. 6, lines 40-60).
Nonomura et al teach that the said compositions and methods may be applied to virtually any variety of plants and fruits, including all crop plants, such as, alfalfa, barley, basil, corn, cotton, peanut, pepper, potato, rice, sesame, sorghum, soy, sweet potato, sugar beet, sugar cane, tobacco, tomato, wheat, yam, etc (Col. 2, line 62 to col. 3, line 45).
It is also disclosed that root applications by side dressing into soil near the root zone will preferably be in the range of 10 to 100 pounds per acre. Additionally, the compositions are typically applied in the amount of between about 3 gallons per acre and about 200 gallons per acre, depending upon the application method (Col.5, lines 55-60 and Col. 8, lines 59-66).
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(See Table on Col.s 11-12).
Stoller et al teach a method for increasing and/or preserving yields and/or biomass in crop species including potatoes, beets, sugar cane, corn, soybeans and others by exogenous application of trehalose and/or trehalose derivatives at any time in the growing process such as before crop sowing, during sowing, or during plant establishment. The method, when applied early in crop production results in enhanced health and vigor of the mother plant resulting in healthier produce having reduced sugars from the mother plant (See abstract and [0033]).
Stoller et al disclose a method for enhancing yield of crop plants comprising the steps of preparing a molecular signaling solution including trehalose and water or a modified form of trehalose and water or a derivative of trehalose in water, applying the molecular signaling solution to the foliage of the crop plants or into the soil in which the crop plants are growing, or onto seeds prior to planting (See claim 1).
FAO discloses that furrow irrigation in fields is suitable for many crops. FAO discloses that crops that would be damaged if water covered their stem or crown should be irrigated by furrows. Among the suitable crops that can be irrigated by furrow irrigation includes corn, wheat, sugarcane, tomatoes, potatoes, and soybeans (pg.1-2, 3.1.1 Suitable crops; pg.4, 3.2 Furrow Layout; pg.5, Field length). Furrows can be used on most soil types (pg.4, 3.1.3 Suitable soils). FAO discloses that the location of plants in a furrow system is not fixed, but depends on the natural circumstances. If water is scarce, the plants may be put in the furrow itself to benefit more from the limited water. In areas with heavy rainfall, the plants should stand on top of the ridge in order to prevent damage as a result of waterlogging. For winter and early spring crops in colder areas, the seeds may be planted on the sunny side of the ridge. In hotter areas, seeds may be planted on the shady side of the ridge to protect them from the sun (pg. 13, 3.5 Planting Techniques, Figure 44).
As evidenced:
Anthony et al teach composition, as a solution or dry flowable powder peptide- polysaccharide complex, used as a plant, soil, seed or seed piece treatment for commercial crops to enhance germination, emergence, root mass development, plant growth crop maturity and ultimately increase crop yield. The soils, seeds or seed pieces of agricultural or horticultural value are treated before, during, or after planting with a peptide-polysaccharide complex. Preferably, the administering is performed simultaneously with seeding of said crop (See abstract, claims 1-3 and 6).
It would have been prima facie obvious to a person of ordinary skilled in the art at the time the invention was made to have combined the teachings of FAO, Stoller et al and Nonomura et al and as evidenced by Anthony et al with that of Lehtonen et al to arrive at the instant invention.
It would have been obvious to do so because Lehtonen et al teach a fertilizer composition, which comprises a carbon source (e.g., monosaccharides and disaccharides such as glucose or sucrose) and a nitrogen source (e.g., urea) used for fertilizing soil bacteria. Lehtonen’s composition is suitable for use as a fertilizer or soil amendment. Similarly, Nonomura et al teach methods and compositions for enhancing plant growth comprising an alkyl glucoside and fertilizers such as nitrogen containing compounds. While Lehtonen do not expressly disclose application of such formulation to seeds, Nonomura et al does. Also, Nonomura et al provide guidance on the amount of the said sugar compound applied to the area and crops that can benefit from such application. Thus, one of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the teachings of Lehtonen with the teachings of Nonomura et al, and apply Lehtonen’s fertilizer composition as a soil amendment composition to the soil or crop seeds at a desired rate with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to do so in order to obtain the advantage of assisting the seed germination and plant growth from applying the formulation directly to the seeds.
It also would have been obvious to one of ordinary skill in the art at the time of the invention to have combined the teachings of Stoller et al and FAO into the methods and compositions of Lehtonen et al and Nonomura et al to arrive at the claimed invention with a reasonable expectation of success. It would have been obvious to do so because Lehtonen et al teach application of the said compositions to soil and Nonomura et al teach applying the formulation to seeds in in the soil of row crops. FAO, also teach that there are benefits to planting the seeds in a furrow (row). Additionally, Stoller et al teach that similar formulations can be applied to the plant before, at the time of sowing (i.e. simultaneously) or after sowing.
Additionally, as evidenced by Anthony et al, the seeds are typically treated simultaneously as planting. Thus, one of ordinary skill in the art is given reason and motivation to incorporate the teachings and suggestions of Stoller et al, FAO and Anthony et al into the methods of the combined references with a reasonable expectation of success as the befits are disclosed.
Regarding the limitation of an application rate of from 25 pounds per acre to 250 pound per acre, it is noted that Nonomura et al provide sufficient guidance to one of ordinary skill in the art to use the appropriate amount to achieve the goal of enhanced plant growth. That is, Nonomura teach a composition comprising 1.0 grams per liter of alkyl glucoside and 10 grams per liter of sucrose. It is also disclosed that alkyl glucoside is applied at a rate of 10 to 100 pounds per acre. Thus, the exemplified formulation applied to seeds and soil encompasses a rate of application of sucrose that is 10x 10 pounds of alkyl glucoside, which is 100 pounds per acre, meeting the claimed range. Furthermore, it is held that “Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation”. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955).
Regarding the limitation of refined sugar in claims 37, the references teach applying industrial sugars, which is the same as refined sugar.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the combined teachings of the prior art references is fairly suggestive of the claimed invention.
Claim 31, 33-35, 38-43, and 55 are rejected under 35 U.S.C. 103 as being unpatentable over Yamashita (US 2005/0197252), Yamashita 2015 (US 2015/0075239), Stoller et al (US 20130065762) and FAO (Chapter 3. Furrow Irrigation; of record) as evidenced by Anthony et al (WO 02058466).
Yamashita discloses methods of treating a plant exposed to a phytotoxic ant, which includes identifying a plant exposed to a phytotoxicant and applying an assimilable carbon-skeleton energy component-comprising composition to the identified plant. The composition may also include one or more of a macronutrient component, micronutrient component, vitamin/cofactor component, complexing agent, and microbe. The methods find use in a variety of different application in which a plant is phytotoxic or at least in danger of becoming phytotoxic due to exposure or potential exposure to a phytotoxic ant (abstract; Yamashita claims | and 3).
As disclosed above, Yamashita’s composition comprises an assimilable carbon skeleton energy (ACSE) component. The ACSE components that find use in the subject compositions are carbon-containing substances which provide a readily plant-assimilable source of both carbon and energy for the plant. Among the suitable compounds for use as the ACSE component include complex organic compositions such as molasses, and sugars such as sucrose, fructose, glucose, lactose, galactose, dextrose, maltose, and amylose (para.0034-0035; Yamashita claim 11).
The ACSE component is present in an amount suitable to at least reduce the phytotoxic effects of a phytotoxicant contacted with a plant, where the ACSE component may provide for at least reduced phytotoxicity alone or may function in combination with other components in a composition. In many embodiments, the amount of ACSE component in a composition may range from about 0.1% to about 20% w/w (para.0036).
The composition may be aqueous or non-aqueous composition. The composition may be in solid form, semi-solid form, or liquid form (para.0038).
The compositions may be applied to the plant and/or to soil associated with the plant. In certain embodiments, the composition may be contacted with the soil by spraying, injecting, or flooding the soil with the composition. The amount of a given composition used during any one application will vary greatly depending on the nature of the plant and the number of plants to be treated (e.g. acreage), the nature of the composition, the environmental conditions, the particular phytotoxicant, the degree of phytotoxicity, etc. Where more than one plant is treated, e.g. where crops are treated, the amount that is applied based on acreage may range from about 10 gallons per acre to about 250 gallons per acre (para. 0100, 0101).
As discussed above, in an embodiment, the ACSE component is in the composition in an amount ranging from about 0.1% to about 20% w/w. In the case that that the ACSE is glucose, sucrose, fructose, or amylose and makes up 10% w/w of the composition, the following chart displays the approximate calculations of the range of amounts of the ACSE being applied (Ibs/acre) when the composition is applied at a rate of 10-250 gal/acre:
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In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05 [R-5].
Yamashita discloses that the methods may be used on any number of different types of plants. Exemplary types of plants that may be treated using the method include: wheat, corn, soybean, sugar cane, potato, onion, tomato, and fruit and nut crops (para.0107, 0108).
Further, as discussed above, Yamashita discloses that the composition may also include one or more macronutrient components (reading on fertilizer) for plant nutrition, development, and growth. The number of macronutrient components present in the composition may range from about | to about 15 or more. Representative macronutrients are compounds that include one or more of (but which are not limited to): N, P, K, Ca, Mg, S, Cl, Na, C, H, and O (para.0045-0052; Yamashita claim 16, 17).
Yamashita discloses that the compositions are prepared by combining the components (e.g. ACSE and macronutrients) together (para.0094).
With regards to the limitation in the instant claim 31 “such that the sugar is available to microflora in soil proximate the crops seeds at the time of planting,” Yamashita 2015 is relied upon as evidence for this limitation. The teachings of Yamashita 2015 are set forth herein below.
Yamashita does not appear to explicitly disclose applying the sugar to the crop seed simultaneously at the time of planting or placing one or more crop seeds in a furrow. These are known in the art as taught by Stoller et al and FAO as evidenced by Anthony et al.
Yamashita 2015 discloses soil amendment compositions used to improve soil. The compositions are aqueous compositions that include a carbon skeleton energy component (CSE); a macronutrient; a vitamin cofactor; a complexing agent; and at least one exotic micronutrient component, and an ionophore component (abstract; para.0068). The composition is applied to the soil, and among the beneficial uses of Yamashita’s aqueous compositions are increasing indigenous soil microbe populations, control of soil borne pests and pathogens, improvement in mineral release, the enhancement of the decomposition of plant tissues and accelerated degradation of potentially toxic chemicals and/or allelopathic chemicals; and the like (para.0070, 0076).
Beneficial microbes whose population may be increased by the composition include bacteria, fungi, actinomycetes, various free-living invertebrates, and the like. Yamashita 2015 discloses that applying the composition to the soil results in at least a 2-fold increase, usually at least about a 20-fold increase and more usually at least about 40-fold increase in the microbe population in the treated soil (para.0079).
The CSE components are carbon containing substances which provide a readily assimilable source of both carbon and energy for promoting microbial proliferation. The CSE may be sugars, such as sucrose, fructose, glucose, lactose, galactose, dextrose, and maltose, and amylose (para.0015). The amount of CSE component in the composition ranges from about 5-75% w/w (para. 0017).
For soil amendment applications, the aqueous composition is introduced into the soil such that the desired concentration of the disparate components of the composition is obtained in the soil. Introducing the composition into the soil for soil amendment application results in a concentration of the CSE component in the soil that is at least about 5 ppm, and generally does not exceed about 200 ppm (about 10-400 pounds of the composition per acre). The amount of aqueous composition that is used during any one application will vary depending on the nature of the soil, the nature of the composition, the environmental conditions, etc. (para.0070-0071).
Stoller et al teach a method for increasing and/or preserving yields and/or biomass in crop species including potatoes, beets, sugar cane, corn, soybeans and others by exogenous application of trehalose and/or trehalose derivatives at any time in the growing process such as before crop sowing, during sowing, or during plant establishment. The method, when applied early in crop production results in enhanced health and vigor of the mother plant resulting in healthier produce having reduced sugars from the mother plant (See abstract and [0033]).
Stoller et al disclose a method for enhancing yield of crop plants comprising the steps of preparing a molecular signaling solution including trehalose and water or a modified form of trehalose and water or a derivative of trehalose in water, applying the molecular signaling solution to the foliage of the crop plants or into the soil in which the crop plants are growing, or onto seeds prior to planting (See claim 1).
FAO discloses that furrow irrigation in fields is suitable for many crops. FAO discloses that crops that would be damaged if water covered their stem or crown should be irrigated by furrows. Among the suitable crops that can be irrigated by furrow irrigation includes corn, wheat, sugarcane, tomatoes, potatoes, and soybeans (pg.1-2, 3.1.1 Suitable crops; pg.4, 3.2 Furrow Layout; pg.5, Field length). Furrows can be used on most soil types (pg.4, 3.1.3 Suitable soils). FAO discloses that the location of plants in a furrow system is not fixed, but depends on the natural circumstances. If water is scarce, the plants may be put in the furrow itself to benefit more from the limited water. In areas with heavy rainfall, the plants should stand on top of the ridge in order to prevent damage as a result of waterlogging. For winter and early spring crops in colder areas, the seeds may be planted on the sunny side of the ridge. In hotter areas, seeds may be planted on the shady side of the ridge to protect them from the sun (pg. 13, 3.5 Planting Techniques, Figure 44).
As evidenced:
Anthony et al teach composition, as a solution or dry flowable powder peptide- polysaccharide complex, used as a plant, soil, seed or seed piece treatment for commercial crops to enhance germination, emergence, root mass development, plant growth crop maturity and ultimately increase crop yield. The soils, seeds or seed pieces of agricultural or horticultural value are treated before, during, or after planting with a peptide-polysaccharide complex. Preferably, the administering is performed simultaneously with seeding of said crop (See abstract, claims 1-3 and 6).
It would have been obvious to one of ordinary skill in the art at the time of the invention to have combined the teachings of FAO, Stoller et al, Yamashita 2015 and Anthony et al with that of Yamashita to arrive at the claimed invention. It would have been obvious to do so because Yamashita teach applying a formulation comprising a sugar and a fertilizer (nutrients) to soil to reduce phytotoxicity of plants and Yamashita 2015 also teach applying the same formulation to soils to improve soil condition and improve microflora of the soil to improve crop yield. One of ordinary skill in the art is further motivated to engage in routine experimentation to determine optimal or workable ranges that produce expected results. In particular, one of ordinary skill in the art would have found it prima facie obvious and would have been motivated before the effective filing date of the instant invention to optimize the application rate of the composition based on Yamashita’s disclosure of a suitable application rate based on factors such as the state of the soil at the time of planting and the type and amount of phytotoxic ant in the soil in order to obtain the optimal growing environment for the planted crops. One of ordinary skill in the art would have a reasonable expectation of success in doing so as Yamashita disc loses that the application rate may be varied based on art-recognized factors. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. /n re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955).
As discussed above, Yamashita discloses that their methods may be used with soybeans, corn, wheat, sugarcane, potatoes, and tomatoes. In light of FAO’s disclosure that these crops are known in the art to be planted in furrows, it would have been obvious to one of ordinary skill in the art to combine the teachings of Yamashita with the teachings of FAO before the effective filing date of the instant invention, and plant the seeds of Yamashita’s aforementioned crops in furrows and apply Yamashita’s compositions to the furrows as ' Liu et al. (Conversion of Parts per Million on Soil Test Reports to Pounds per Acre ;pg.2, How to Convert Pounds per Acre to Parts per Million).
As disclosed by Yamashita above. One of ordinary skill in the art would have been motivated to do so in order to obtain not only the advantages of Yamashita’s compositions (e.g., soil bioremediation and reducing phytotoxicants in the soil where the crop seeds are planted, thus improving the growing environment of the planted seed), but also the benefit of addressing other environmental stresses disclosed by FAO such as limited water, excess water, lack of sun, or excess sun. One of ordinary skill in the art would have had a reasonable expectation of success in doing so as FAO discloses that the seeds of Yamashita’s disclosed crops are known to be planted in furrows, which can be used on most soil types.
With regards to the limitation in the instant claim 31, “applying a sugar into the furrow with said crop seeds such that the sugar is available to microflora in soil surrounding the crops seed when the furrow is closed” as discussed above by Yamashita 2015, Yamashita’s assimilable carbon skeleton energy component (e.g., glucose, sucrose, amylose) provide a readily assimilable source of both carbon and energy for promoting microbial proliferation. Because Yamashita’s composition comprises the aforementioned sugar(s), which is disclosed as being a readily assimilable source of both carbon and energy for promoting microbial proliferation, and the combined teachings of Yamashita and FAO, for the reasons set forth above, is fairly suggestive of applying Yamashita’s composition into the furrow where the seeds are planted (the composition may be contacted with the soil by spraying, injecting, or flooding the soil with the composition), thus providing the sugar to the microflora in the soil where the seed is planted, the combined teachings of Yamashita and FAO read on “applying a sugar into the furrow with said crop seeds... such that the sugar is available to microflora in soil surrounding the crops seed when the furrow is closed.”
With regards to the timing and application rate of the sugar, it would have been obvious to one of ordinary skill in the art before the effective filing date of the instant invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. In particular, as discussed above, Yamashita discloses that the ACSE components (e.g., glucose, sucrose, fructose, amylose, etc.) provide a readily plant-assimilable source of both carbon and energy for the plant and are present in an amount suitable to at least reduce the phytotoxic effects of a phytotoxicant contacted with a plant. Yamashita 2015 further discloses that such components are carbon containing substances which provide a readily assimilable source of both carbon and energy for promoting microbial proliferation. Yamashita 2015 further discloses that such compositions may be applied to soil for soil amendments applications and compounds such as Yamashita’s ACSE component may be present in amount up to about 75% w/w, and discloses that introducing the composition into the soil for soil amendment application results in a concentration of the CSE component in the soil that is at least about 5 ppm, and generally does not exceed about 200 ppm (about 10-400 pounds of the composition per acre). Yamashita and Yamashita 2015 also disclose that the amount of aqueous composition that is used during any one application will vary depending on the nature of the soil, the nature of the composition, the environmental conditions, etc. In light of these disclosures by Yamashita and Yamashita 2015, one of ordinary skill in the art would have found it prima facie obvious and would have been motivated before the effective filing date of the instant invention to engage in routine experimentation to optimize the application timing and amount of the CSE component (e.g., glucose, sucrose, fructose, amylose, etc.) being applied to the soil based on factors such as the nature of the soil at the time of planting, the amount of nutrients and beneficial soil microbes present in the soil prior to planting, etc., e.g., increasing the amount of ACSE component being applied if the nutrient level and population of beneficial soil microbes in the soil is low, applying at the time of planting if the soil is need of nutrients and beneficial soil microbes at the time of planting, etc., in order to obtain the optimal crop properties such as health and yield. Moreover, as evidenced by Yamashita’s disclosure of the greater amounts suitable for application when applied to crops, increasing the application rate the composition and ACSE component do not appear to be detrimental to the crops to be grown. Further, Yamashita discloses that the compositions may be applied a day after planting (i.e. when still a seed) and Yamashita 2015 discloses the compositions may be applied as a soil amendment, indicating that the composition is suitable for application prior to the emergence of the crops. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955).
Additionally, Stoller et al teach a similar composition which may be applied to the plant before or at the time of sowing the seeds. Thus, one of ordinary skill in the art is motivated to choose application at the time of sowing for its benefits.
With regards to the instant claim 59, in light of the instant Specification (e.g. P.G. Pub., para. 0042- 0044, 0074), it appears that the seeds’ exposure to enhanced levels of carbon dioxide is a result of performing the application of the sugar within the claimed range. Because the combined teachings of the prior art references as discussed above is fairly suggestive of applying the claimed sugars at a range that overlaps with the instantly claimed ranges, absent evidence to the contrary, performing the method of the combined teachings of the prior art references will also provide the seeds in the method of the combined teachings of Yamashita and FAO with an enhanced level of carbon dioxide exposure compared to seeds absent the simultaneous application of sugar during planting.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the combined teachings of the prior art references is fairly suggestive of the claimed invention.
Claim 37 is rejected under 35 U.S.C. 103 as being unpatentable over Yamashita (US 2005/0197252; of record), Yamashita 2015 (US 2015/0075239 A1; of record), Stoller et al (US 20130065762) and FAO (Chapter 3. Furrow Irrigation; of record), as evidenced by Anthony et al as applied to claims 31, 33-35, 38-43, and 55-59, further in view of Curtis (Food Product Design; of record), and evidenced by Cargill (A world of sugar solutions; of record).
Applicant’s claims are set forth above and incorporated herein.
Applicant further claims wherein the sugar is selected from the group recited in the instant claim 37.
The teachings of Yamashita, Yamashita 2015, Stoller et al, FAO, and Anthony et al and the motivation for their combination as they apply to claims 31, 33-35, 38-43, and 55-59 are set forth above and incorporated herein.
The combined teachings of do not appear to explicitly disclose wherein the sugar is selected from the group recited in the instant claim 37. Curtis is relied upon for this disclosure. The teachings of Curtis are set forth herein below.
Curtis is relied upon for the disclosure of known sugars. Glucose, fructose, and galactose are common monosaccharides. Sucrose, lactose, and maltose are common disaccharides (pg. 3, para. 2). Other sources of mono- and disaccharides include corn syrup and high fructose corn syrup (HFCS). Curtis discloses that sugar can come in various other guises, such as granulated white sugar (pg.3, para.4). As evidenced by Cargill, granulated white sugar is sugar having a sucrose content of not less than 99.85 % (pg. 1, Granulated sugar). With regards to HFCS, Curtis discloses that HFCS contains 45-55% fructose, which is essentially the same amount of fructose as sucrose. HFCS also differs from sucrose in that it contains maltose and other higher-molecular- weight saccharides (pg.4, para.5).
As discussed above, Yamashita discloses that sucrose and fructose are among the suitable sugars for their composition. In light of Curtis’s disclosure (evidenced by Cargill) that high fructose com syrup is a liquid mixture of fructose and sucrose and granulated white sugar is sugar having a sucrose content of not less than 99.85%, it would have been obvious to one of ordinary skill in the art before the effective filing date of the instant invention to further combine the teachings of Yamashita and FAO with the teachings of Curtis and use either HFCS or granulated white sugar as the sugar component in Yamashita’s composition. One of ordinary skill in the art would have been motivated with a reasonable expectation of success in doing so because high fructose corn syrup is a liquid mixture of sucrose and fructose and granulated white sugar is sugar having a sucrose content of not less than 99.85%, and Yamashita discloses fructose and sucrose as suitable sugars to use in their composition.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the combined teachings of the prior art references is fairly suggestive of the claimed invention.
Response to Arguments
Applicant's arguments filed 09/24/2025 have been fully considered but they are not persuasive. It is noted that Remarks pages are not numbered.
Applicant's first argument is that Nonomura reference is expressly directed to the application of alkyl glucoside compositions that are absorbed by the plant, and that alkyl glucosides are not sugars as claimed. Applicant further points to a paragraph in the background section of Nonomura reference that discloses the problems with applying simple sugars to plants due to poor absorption by the cells (See Col. 1, lines 9-19 of Nonomura et al). Applicant argues that “In considering the disclosure of Nonomura, and the expressed disadvantages of applying sugars, one of ordinary skill in the art would have no reasonable basis to consider modifying Lehtonen in view of Nonomura in an attempt to arrive at the claimed invention” (See Remarks, 2nd and 3rd pages).
The above argument is not persuasive and fails to place the claims in condition of allowance. Firstly, it is noted that Nonomura discloses that commonly applied sugars are not efficiently transported across plant cell membranes and it would be beneficial to provide compositions for plant treatment for which membrane transport systems exist. Thus, Nonomura is not teaching away from applying sugars to plants, but that they need to be in a form that transports across the plant cells. Hence a fertilizer formulation comprising alkyl glucoside which are absorbed by the plant. It is known in the art that alkyl glucosides are used in fertilizers as environmentally friendly surfactants, acting as adjuvants to improve the spreading and effectiveness of other active ingredients.
Secondly, Nonomura teach fertilizer compositions comprising alkyl glucoside and other beneficial compounds including sucrose in an exemplary formulation (See Eighth exemplary composition in Col. 11). The composition comprises 10 times more sucrose than alkyl glucoside. The application rate taught by Nonomura also meets the claimed rate (See above). It is further noted that in instant claims 40-43, the sugar is combined or mixed with a fertilizer. The method of claim 31 also employes the phrase “comprising” which allows for inclusion of unrecited components such as fertilizer including alky glucoside.
While Applicant does not comment on the teachings of the primary reference which teach application of a formulation comprising sugars and other fertilizing compounds to the soil for improving plant growth, it is further noted that Lehtonen reference provides guidance on the amounts of the priming carbon, i.e. the sugar content of the composition in both percentages of the composition and in application rate to the soil. It is disclosed that the typical amounts in an average Finnish agricultural soil amounts to from 100 to 350 kg/ha, preferably from 200 to 300 kg/ha of added priming carbon. It is noted that 100 kg/ha is equivalent to 89 pounds/acre, which meets the claimed range.
Applicant’s next argument is that claim 31 has been amended to the expressly recite sugars, and that Stoller et al only discloses trehalose and/or a related form. Applicant argues that “At no point Stoller suggests utilizing other sugars” (See Remarks, 4th page).
This argument is similarly unpersuasive. Lehtonen et al disclose applying a fertilizer comprising a priming carbon source comprising mono- or disaccharides to the soil. Lehtonen et al lacks an express disclosure on the said fertilizer formulation being applied simultaneously with the crop seed. Stoller et al disclose a method of enhancing crop yield by applying trehalose (a disaccharide) to the plant at any time including at the time of sowing. Thus, one of ordinary skill in the art is advised that a beneficial formulation such as a mono-or disaccharide may be effectively be applied at any time.
Regarding the secondary references, it has been held that “the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Since Stoller et al teaches that a composition for enhancing the productivity and growth of plants comprising a disaccharide, trehalose, can be applied to seeds at the time of sowing, one of ordinary skill in the art is more than motivated to implement this teaching to the method of Lehtonen et al with a reasonable expectation of success.
Applicant’s arguments regarding FAO and Anthony are similarly unpersuasive. FAO teaches furrow irrigation in fields is suitable for many crops and seeds, and Anthony et al teach that a crop increasing composition may be applied to a crop seed before during or after cultivation. Anthony et al teach that one of the preferred methods is simultaneously with seeding of the crop.
With regard to the rejection of claims over Yamashita, Yamashita 2015, Stoller and FAO, Applicant’s main arguments are towards the teachings of Yamashita 2015. Applicant argues that “Yamashita 2015 is absolutely silent with respect to any discussion of seeds, planting, or timing relative to seed planting. Instead, Yamashita 2015, as described by the Examiner, “... discloses soil amendment compositions used to improve soil.” While Yamashita 2015 contains a veritable laundry list of beneficial uses, none of them are at all related to exposing crops seeds to enhanced levels of carbon dioxide during a pre-emergence growth stage due to the consumption of the sugar by surrounding microflora. The Examiner points to Yamashita 2015 addressing the benefits of rich soil and increasing indigenous soil microbe population but this is not what is recited in the claim. However, amended independent claim 31 contains nothing regarding soil microbe populations but instead the claim is directed to, “... exposing the crop seeds to increased levels of carbon dioxide as the sugar is consumed by the microflora...”. _ Yamashita 2015 contains no disclosure related to increasing levels of carbon dioxide or exposing seeds to elevated levels of carbon dioxide in a pre-emergent growth stage. Providing “rich soil” is simply not the same as the claimed step of increasing carbon dioxide levels when seeds are in a pre-emergent growth stage” (See Remarks, 5th page).
The above argument has been given full consideration and found unpersuasive. As the rejection clearly states, Yamashita 2015 teaches that “The composition is applied to the soil, and among the beneficial uses of Yamashita’s aqueous compositions are increasing indigenous soil microbe populations, control of soil borne pests and pathogens, improvement in mineral release, the enhancement of the decomposition of plant tissues and accelerated degradation of potentially toxic chemicals and/or allelopathic chemicals; and the like (para.0070, 0076)”. Yamashita 2015 also states that “For soil amendment applications, in practicing the subject methods, the aqueous composition is contacted with the soil under conditions sufficient to achieve the desired concentrations of the agents of the composition in the soil” (See [0070]).
Yamashita 2015 further discloses that such components are carbon containing substances which provide a readily assimilable source of both carbon and energy for promoting microbial proliferation.
This argument is also not convincing because Yamashita 2015 clearly recognizes the benefits of a soil rich in the beneficial components such as saccharides. Indeed, - increasing indigenous soil microbe populations- is one of the disclosed benefits which is the same as argued benefit of “boosting microflora proximate crop seeds at time of planting”.
That is Yamashita 2015, while not expressly stating at the time of planting, is teaching the same method as that claimed, which is improving and enhancing conditions for the plant growth, by applying sufficient amount of a composition comprising sugars to the soil. It is also noted that applying to soil encompasses all the times, including at the time of planting crop seeds. That is the recitations of Yamashita 2015, would be interpreted by one of ordinary skill in the art that applying the compositions to the soil at any time during the planting would be beneficial.
Additionally, Stoller et al teach that a similar formulation comprising sugars can be applied to seeds at the time of sowing.
Thus, all the claimed limitations have been met by the combination of prior art references as stated above.
The claims remain rejected as there is no evidence of an inventive step.
In conclusion:
Claims 31, 33-35, 37-43 and 55 are rejected.
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 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.
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