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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 09/29/25 has been entered and it is the amendments filed after-final on 09/03/25 which are examined in this office action.
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 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 1-6, 13-17, 21, 23 are rejected under 35 U.S.C. 103 as being unpatentable over Reichert et al. (WO 2013/158284 A1, of record) in view of Porter et al. (US 4,251,952 A), Jessop (GB 2500921 A, of record), and Gindrat et al. (US5041290) as evidenced by MSDS for PONCHO VOTIVO (hereinafter MSDS), by the product label for PONCHO VOTIVO (hereinafter “PONCHO VOTIVO Label”), by the American Heritage Roget’s Thesaurus entry for “tacky” (hereinafter ‘“Roget’s thesaurus”) and the Collins English Dictionary entry for “lubricity” (hereinafter “Collins English Dictionary”), Uchimura et al. (JP 2004242582 A, English machine translated provided), and Lewis (US3991517).
Determination of the Scope and Content of the Prior Art (MPEP §2141.01)
Regarding claims 1-2, 13, 16-17, Reichert teaches a method of coating seed (which also reads on the claimed seeds having been prepared by the claimed method of claim 16) which involves the steps of applying to the seed one or more insecticidal, pesticidal, fungicidal or herbicidal treating agent compositions (active agents), which reads on producing applicants tacky coated seed, and a subsequent step of applying to the seed one or more organic lubricants in powdered form, with the goal of this treatment of reducing dust and improving seed flow/seed lubricity (see entire document, especially abstract, Claim 1, para [0015], [0018], [0024], [0026]-[0027], [0032], [0037]). As evidenced by Roget’s thesaurus, tacky is defined as having the property of adhering and is a synonym for “sticky”. (Roget’s Thesaurus-, pg. 1) while lubricity is defined by Collins English Dictionary as slipperiness or having the capacity to lubricate (i.e. to reduce friction) which is the opposite of tacky. As the seeds demonstrate increased lubricity (or reduced tackiness) (para [0002], [0018]), the intended use or goal of the claimed methods of reducing the tackiness of coated seed would have been realized.
Regarding claims 1-2, 13-14, 16-17, and 23, Reichert exemplifies seeds which have been treated with PONCHO/VOTIVO, which MSDS evidences is a liquid that contains approximately 48% by weight plant protection agents and at least the solvent glycerin, which the instant specification at page 15, line 2 evidences glycerin is an antifreeze agent, in an amount which substantially overlaps with the claimed concentration range of 0.5-50% of claim 2 and which exhibits tackiness which reads on the step of producing tacky coated seeds, the seeds also having been treated with wax powder which reads on claim 1 (Reichert, para [0044], MSDS, pg. 2-3, 6). Reichert teaches that the wax may be mixed with inert materials, such as silica and/or clays to improve handling and packaging of the wax powder and which would have led to a concentration of wax in the powder formulation that falls within the concentration range claimed in claim 1 (para [0030]-[0031]). Reichert does not disclose a specific temperature for the application of the seed coating composition and because they do not disclose a specific temperature for performing the seed coating composition that would differ from normal room temperature. Thus, one of ordinary skill in the art would assume the temperature at which the coatings are applied in Reichert to be room temperature e.g. about 19-20 °C which would fall within the temperature range now claimed.
Regarding claims 1, 4-5, 16-17, Reichert teaches that the powder formulation containing wax may be added to the seeds at a rate of 0.5 - 4.0 oz/cwt (IE 0.28g/kg- 2.23 g/kg) or more specifically 0.56-3 oz/cwt (IE 0.31g/Kg to 1.67 g/Kg) when applied to corn (para [0006], [0044]). As evidenced by the PONCHO VOTIVO Label (pg 5), the application rate should be 5.402/cwt corn seed to 10.8 oz/cwt corn seed (IE 3 g/kg —6 g/kg) (80,000 corn seeds= 25 Ibs; 4 * 80,000 seed=CWT corn seed, thus 1.35 * 4=5.4 and 2.7*4=10.8) and thus the amount of seed coating composition exemplified by Reichert et al would have fallen within the range required by claim 4 and exemplified amounts of the powdered wax formulation would have overlapped with the range required by claim 5. The wax may be powdered ethylene bis(stearamide) waxes, etc. which reads claim 1 (para [0024)).
Regarding claims 1, 15-17, Reichert teaches that the seed can be pretreated before planting by both a treating agent and a wax composition, and teach the application can take place in a planter or hopper manually or with a mechanized system, meaning that the coating composition and the powder formulation may be applied to seed in the same container (para [0019]). The composition may be applied when the seed is wet (i.e. tacky) (para [0018)).
Ascertainment of the difference between the prior art and the claims (MPEP §2141.02)
Regarding claims 1-6, 13-17, 21, 23, Reichert teaches the coated seed as discussed above, but fail to explicitly teach contacting the coated seed with a powder formulation directly after applying the seed coating composition to the seed, such as within 30 seconds or less, fails to explicitly teach the period of time in which the coating composition and the powder formulation is applied to the seed, applying powder in a range of 4-6 % by total weight of the dry uncoated seed and the average particle size of the powder, specifically the claimed N,N’-ethylene bis(stearamide), or wherein the seed coating composition is applied by film coating. The teachings of Porter, Jessop, Gindrat, and Lewis help to cure these deficits.
Regarding claims 1, 3, 17, 21, Porter teaches a method of coating seeds which includes submitting seeds to coating by a composition which displays tackiness and then directly thereafter coating the seeds with particulate material while the coating is still tacky in order to adhere the particulate material thereto (see entire document, especially abstract, col 5, In 42 to col 6, In 25). The coating process may be done in the same container, may be done by spraying seeds to form a polymer containing film coating (reads on claim 21) and may be done in a rotary drum coater, which is a type of drum coater and as such reads on claims 1 and 17 (col 2, In 29 to col 3, In 23, col 5, In 42-56, col 7, In 43 to col 8, In 2, example 5).
Regarding claims 1-6, 13-17, 21, and 23, Porter teaches that the first coating may be applied to a seed in an amount of time of approximately 5 seconds to 2 minutes, which reads on the claimed 1-180 seconds, and the particulate may be applied to the coated seed in as little as a few seconds after the first coating has been applied to the seed, which reads on the claimed less than 30 seconds (col 7, In 43 to col 8, In 14). The particulate material may be added all at once or at controlled rates, and teach that the distribution of the particulate material onto the coating can be accomplished in a very short period of time, typically 5 seconds to 5 minutes depending on how large of a batch is being processed, which is very close to the newly claimed range of 1-3 seconds (col 8, In 18-23, col 9, In 12-21), because “a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close.” Titanium Metals Corp. of America v.Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). Porter further teach that the particulates are smaller than 150 microns but larger than 1 micron, the reduced size responsible for better adhesion between the seed and the particulate which reads on the claimed particle sizes of 130 microns as required by claims 1 and 17 (col 8, In 24-38). Further regarding claims 1 and 17, Porter teaches wherein the powder formulation can be applied to the tacky coated seeds in range which overlaps the newly claimed range of 4-6% by total weight of dry uncoated seed, specifically Porter teaches from 3 to 200 parts by weight based on 100 parts of weight of seed to form the outer coating adhered to the coating composition which is in contact with the seed surface, and Porter further teaches wherein the amount of particulate material added and adhered to the coated seed surface may also vary fairly widely but will usually depend on various factors basically related to the objectives to be accomplished by the particulate coating and the amounts necessary to achieve the objectives with the selected particulate material (Col. 8, ln. 41-53; Col. 8, ln. 41-Col. 9, ln. 11).
Regarding claims 1 and 17, Jessop teaches enhancing flowability of seeds and reducing dust drift by applying to seeds particles of flowability enhancing agent that comprises at least one species of wax that adheres more firmly to the seed than a composition that comprises a mineral earth component (pg 3, para 3-4, pg 13, para 2).
Regarding claims 1 and 17, Gindrat teaches that it was known to tacky coat seeds and then coat the tacky coating with a powder and then sieve the seeds away from the residual/unattached powder (See Example 2).
Regarding claims 1-6, 13-17, 21, 23, Lewis teaches that it was known to use polyvinyl pyrrolidone as a sticking material/binder in seed coating formulations in which the coated seed is then coated with a dust/powder material to control/prevent the seeds from agglomerating (see Col. 2, ln. 2-9).
Regarding claims 1 and 17, Reichert also does not teach treating the surface of the seed to increase surface roughness of the seed before applying the seed coating thereto. The teachings of Uchimura help to cure these deficits.
Uchimura provides a method of treating seeds to improve germination of the seed which involves the step of abrading the seed coats with granular or powdery abrasive particles by instruments which are used to roughen surfaces, which would likewise be expected to provide a roughened seed coat surface (abstract, para [0030)). By abrading the seed coat, an improvement in germination can take place because moisture and gas can easily permeate the abraded/roughened seed coat (para [0005], [0008]). Additionally, Uchimura et al. further envision that the roughened seeds may be film coated or granulation coated (para [0040)).
Finding of prima facie obviousness Rationale and Motivation (MPEP §2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Reichert and Porter and Lewis as they are directed to providing seed coatings through coating with a liquid, such as film coating, followed by a particulate. While Reichert does not explicitly teach contacting the powdered wax composition to coated seed directly after applying the liquid seed coating specifically 30 seconds or less between treatments one of ordinary skill in the art would have found it obvious to do so based upon the teachings of Porter to do so while the initial seed coating is still tacky, such as within a few seconds of applying the seed coating which reads on the claimed 30 seconds or less, in order to ensure that the desired amount of particulate is adhered to the seed. Based upon this teaching in Porter and also on the teaching in Reichert which both teach that the seed may be treated when it is wet and exemplify use of a seed treatment that is liquid and contains at least one ingredient that displays tackiness, e.g. solvent, one of ordinary skill in the art would have had a reasonable expectation of successfully forming a seed coating in this manner.
It would have been obvious to add the newly claimed binder, i.e. the polyvinylpyrrolidone of Lewis to the liquid seed coating composition of Reichert as it will improve the adherence of the subsequent lubricant/powder coating to the seed and help to prevent/reduce seed agglomeration. It also would have been obvious to pre-mix the binder with the liquid seed coating composition of Reichert because it would be obvious to mix the binder with the liquid seed coating composition so that only one liquid treatment is being applied to the seeds which is more cost effective and time saving and the single liquid coating then adheres/absorbs/adsorbs onto/into the seeds and by adding the binder/polyvinylpyrrolidone to the liquid the single liquid treatment then allows for better adherence of the subsequent powder formulation to the seed and reduces/prevents agglomeration of the seeds, etc.
Regarding the treatment of the seed to increase the surface roughness of the seed prior to applying the seed coating composition, it would have been obvious to roughen the surface of the seed prior to applying the seed coating because Uchimura teaches that by abrading the seed coat, an improvement in germination can take place because moisture and gas can easily permeate the abraded/roughened seed coat, and that this is/can be done prior to coating the seeds.
Regarding the limitations in the claims regarding the percentage of powder formulation added to the tacky seed, it would have been obvious to one of ordinary skill in the art to apply the claimed N,N’-ethylene bis(stearamide) wax as the powder formulation coating as taught by Reichert in the claimed percentages by optimizing the powder coating percentages of Porter for powder coating tacky coated seeds via the method steps of Reichert and timings of Porter as Reichert teaches applying N,N’-ethylene bis(stearamide) wax particles to a seed to improve flowability and reduce dusting and Porter teaches that it was known to add powdered coatings to tacky coated seeds and teaches that the amounts of particulate/powder material added and adhered to the coated seeds may vary fairly widely but usually depends on various factors basically related to what objectives are to be accomplished by/with the powder/particulate coating and the amounts necessary to achieve the objectives. The amounts are typically from 3 to 200 parts by weight per 100 parts by weight of seed (i.e. uncoated seed) (see Col. 8, ln. 41-Col. 9, ln. 11). Thus one of ordinary skill in the art would have had reasonable expectation of success in effectively coating seeds to have improved flowability and reduced dusting by using the claimed powdered N,N’-ethylene bisstearamide wax in amounts of 4-6% as taught by Porter in the methods of Reichert to achieve the instantly claimed methods for the same purpose because Porter teaches wherein the powder formulation can be applied to the tacky coated seeds in range of from 3 to 200 parts by weight based on 100 parts of weight of seed to form the outer coating adhered to the coating composition which is in contact with the seed surface, and Porter further teaches wherein the amount of particulate material added and adhered to the coated seed surface may vary fairly widely but will usually depend on various factors basically related to the objectives to be accomplished by the particulate coating and the amounts necessary to achieve the objectives with the selected particulate material. Further, it would be obvious to optimize the amount of the powder coating, e.g. powdered N,N’-ethylene bisstearamide wax particles to read on the claimed wt% of 4-6 wt% of the uncoated seed because it was known to optimize the amount of wax powder used to powder coat tacky coated seeds in order to afford seeds having the desired properties, e.g. improved flowability and reduced dusting, etc. as disclosed/claimed based on the teachings of Reichert, Porter and the combined references above because “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. ‘[W]here 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, 456, 105 USPQ 233, 235 (CCPA 1955)
Regarding the concentration of the tackifier in the coating composition, the amount of coating composition used to coat a kg of seed and the percentage of powder formulation by total weight of dry uncoated seed used to coat the tacky seed, the claimed amount of plant protecting agent in the coating composition, and the claimed powdered N,N’-ethylene bisstearamide wax being used as the powder coating composition as discussed above these are all taught by Reichert and overlap/read on the claimed concentrations/amounts/ranges/powder compositions and as such render the claimed amounts/concentrations/ranges/powder compositions obvious.
Regarding the claimed length of time between treating seeds with coating composition and the powder formulation containing wax, the amount of time that the seed is treated with the coating composition and the powder formulation these were all known timings which were known in the art for forming tacky seeds which are subsequently powder coated as is taught by Porter and as such it would be obvious to use the claimed timings as taught by Porter in the method of Reichert in order to provide an effective coating method for producing tacky coated seeds which are powdered coated and have reduced dust and improved seed flow/seed lubricity, which are the same features accomplished by the instantly claimed method.
Regarding the claimed particle size of the powdered N,N’-ethylene bis(stearamide) wax, as discussed above Reichert teaches wherein powdered wax can be used to powder coat the seeds after treatment with the seed coating composition which has tackiness, and specifically teach wherein the wax can be powdered N,N’-ethylene bis(stearamide) wax. It would have been obvious to select the claimed particle size of 130 nm because Porter teaches that particles having a diameter of less than 150 microns are preferred for coating seeds because they have better adhesion. Thus, it would be obvious to one of ordinary skill in the art to optimize the size of the particles used in the powder coating composition to have the claimed sizes because it was already known in the art that coating seeds with particulates after they have been tacky coated, they see better adhesion of the particles if they are below 150 microns. Further, it would have been obvious to optimize the size of the powder coats used to coat the tacky seeds in order to provide the most uniform coating with reduced dust and improved lubricity as Reichert specifically teaches a goal of their invention was to reduce dust from the coated seeds.
Regarding the inclusion of anti-freeze in the seed coating composition as required by claim 23, as Reichert exemplifies a seed coating composition that comprises glycerin, which the instant specification evidences is an anti-freeze, it would have been obvious to one of ordinary skill in the art to provide a seed coating composition that comprises this same glycerin anti-freeze. Regarding the requirement that the seed coating composition and powder formulation are successively applied to a seed in a drum coater, as Porter specifically teaches applying a binder/glue and then a powder in a rotary drum coater, it would have been obvious to one of ordinary skill in the art to utilize such an implement to coat the seed with a tacky seed coating composition and a subsequent powdered composition.
Regarding the limitation that the coated seeds are sieved away from the unadhered powder by use of a sieve, it would have been obvious to perform this step because it was known in the art to quickly coat the tacky coated seeds with the powder as in Reichert e.g. seconds, and it was known in the art to then sieve the seeds away from the unadhered powder as in Gindrat in order to allow the seeds to dry with the tacky coating and powder on them and so that only coated seeds and not just clumps/particles of the powder are then subsequently planted, e.g. you don’t want just clumps of powder/excess powder to be planted in place of actual coated seeds or the yield in the field will be decreased because the appropriate numbers of seeds are not being planted due to clumps/excess powder being present with the coated seeds.
Regarding the limitation wherein the seed coating comprises a binder selected from those claimed, specifically polyvinyl pyrrolidone, it would have been obvious to add the claimed polyvinyl pyrrolidone binder to the liquid seed coating used in the claimed method as taught by Reicher and the combined references because Lewis teaches that it was known to use these sticky binders in seed coating liquid formulations which are subsequently treated with powders so that the seeds do not agglomerate as the binders help to bind the powdered seed coating to the seed as that is a function of the binder and by adding a binder to the seed coating composition and method taught by Reichert and the combined references the subsequent powder coating will better adhere to the tacky/sticky coated seed and therefore lead to less agglomeration of the seeds.
It also would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Reichert, Porter, Jessop, Gindrat, and Lewis, with Uchimura because they are all directed to treating seeds to obtain coated seeds. Based upon the teachings of Uchimura, it would have been obvious to one of ordinary skill in the art to pretreat the seeds of Reichert to roughen the seed coat with the surface roughening instrument of Uchimura. One of ordinary skill in the art would have been motivated to do so in order to obtain a seed which has enhanced germination compared to a non-roughened seed. As Uchimura teaches that the roughened seed can further be film coated, the ordinarily skilled artisan would have had a reasonable expectation of success of combining the pretreatment of the seed taught by Uchimura with the further coating steps and the amounts of Reichert and the other combined references as discussed above which are for the same purpose as the instantly claimed method. Therefore, the claimed invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention because the prior art is suggestive of the claimed invention.
Regarding the limitations in claims 1 and 17 that the powder formulation is contacted with the powder coated seed for period range from 1 to 3 seconds before the powder coated seed is separated from the powder formulation that has not adhered…this range of time would be obvious to optimize based on the ranges taught by the prior art Porter which teaches that distribution of the particulate material onto the coating can be accomplished in a very short period of time, typically 5 seconds to 5 minutes, depending on how large of a batch is being processed. Thus, clearly based on the teachings of Porter the time for distribution of the particulate/powder onto the sticky/wet coated seeds can be done in a very short period of time which can clearly and readily be optimized from the typical 5 seconds to 5 minutes depending on size of coated seed batches to the claimed 1-3 seconds by one of ordinary skill in the art because “[W]here 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 reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”); In reHoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.).
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Reichert et al. (WO 2013/158284 A1, of record), Porter et al. (US 4,251,952 A) Jessop (GB 2500921 A, of record), and Gindrat et al. (US5041290) as evidenced by MSDS for PONCHO VOTIVO (hereinafter MSDS), by the product label for PONCHO VOTIVO (hereinafter “PONCHO VOTIVO Label”), by the American Heritage Roget’s Thesaurus entry for “tacky” (hereinafter “Roget’s thesaurus”) and the Collins English Dictionary entry for “lubricity” (hereinafter “Collins English Dictionary”), Uchimura et al. (JP 2004242582 A, English machine translated provided), and Lewis (US3991517) as applied to claims 1-6, 13-17, 21 and 23 above, and further in view of Tetteroo et al. (WO 03/003812 A1).
Determination of the Scope and Content of the Prior Art (MPEP §2141.01)
The combined references together teach the method of claims 1-7, 9, 13-17, 21 and 23 as discussed above.
Ascertainment of the difference between the prior art and the claims (MPEP §2141.02)
The combined references above teach the method of claims 1-7, 9, 13-17, 21 and 23 as discussed above, but fail to specifically teach that the seed coating composition further comprises a translucent polymeric film containing light-reflecting particles. The teachings of Tetteroo et al. help to cure these deficits.
Tetteroo et al. teach a method of coating seeds which includes coating the seed with flakes of a translucent polymeric film that has light-reflecting properties on an inert carrier (abstract, Fig. 1-5, pg 1, In 15-19). The benefits to such a seed coating is to aid in identification of the seed type, for cosmetic purposes as well as to repel birds (pg 5, In 25-27). Tetteroo et al. further teaches that the seeds may be coated with a first and second coating layer, wherein the first coating layer would not need to be dried before the second layer is applied (pg 1, In 20-29).
Finding of prima facie obviousness Rationale and Motivation (MPEP §2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of the combined references with Tetteroo et al. as they are all directed to providing seed coatings. Based upon the teachings of Tetteroo et al., it would have been obvious to one of ordinary skill in the art to provide a coating on seeds which contains flakes of a translucent polymeric film and which has light reflecting properties onto the coated seed suggested by the combined references above. An ordinarily skilled artisan would have been motivated to do so in order to provide the seeds with the ability to repel birds as well as to give a means for identifying the seeds. As Tetteroo et al. envision applying the light reflecting coating over another coating before it is dry, one of ordinary skill in the art would have had a reasonable expectation of successfully coating the light reflecting coating of Tetteroo et al. over the seed coatings suggested by the teachings of the combined references above. Therefore, the claimed invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention because the prior art is suggestive of the claimed invention.
Response to Arguments/Remarks
Applicants amendments to the claims have overcome and/or rendered moot the previous claim objections. Applicant’s amendments to the claims have prompted the revised grounds of rejection under 103.
Applicant’s arguments with respect to the 103 rejections that they have amended the claims to now require that the amount of the powder formulation applied to the tacky coated seeds is in a 4-6% by total weight of dry uncoated seed. This new limitation is now rendered obvious for the above reasons because as discussed above with respect to Reichert and Porter specifically, and it would have been obvious to optimize the amount of the powder formulation of Reichert applied to the tacky coated seeds because it was already known to powder coat tacky/wet treated seeds with overlapping amounts of the powder/particulates and which can clearly and readily be optimized as taught by Porter depending on what properties etc. you are achieving/trying to achieve with the powder/particulate coating. Thus, one of ordinary skill in the art would routinely optimize the amounts of powder coating/particulate coating being applied to sticky/tacky coated seeds in order to achieve the desired properties to the seeds, e.g. improved flowability, etc. because “[W]here 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 reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”); In reHoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). In the instant case, the prior art already recognizes powder coating with a powder formulation tacky coated seeds wherein the powder coating is applied in amounts which overlap the claimed range of 4-6 wt% by total weight of dry uncoated seed and the prior art also teaches that optimization of the amounts of powder coating is known in the art as the amounts of powder/particulate used to coat tacky/sticky coated seeds is dependent upon what type of coating and what properties are to be achieved with the coating, e.g. increased flowability, etc. Thus, the examiner maintains that the claimed method is obvious when taken in view of the combination of the prior art because each and every step of the claimed method was already known in the art to be useful for forming tacky coated seeds which are then powder coated, because it is obvious to combine steps from known methods of forming the same types of tacky coated seeds which are then powder coated for handing/improved flowability, etc. in order to develop a new and/or improved process for forming tacky coated seeds which are then powder coated to provide better handling, flowability effects, etc. One of ordinary skill in the art would do this because each step is already known in the art to be effective for this process thus combining known effective steps to develop another method for effectively forming tacky coated seeds which are then powder coated would be obvious to one of ordinary skill in the art.
Applicants then argue that the rejection over claim 22 regarding the addition of a further translucent polymeric film containing light-reflecting particles and that this rejection also does not address or cure the deficiencies with respect to claims 1-6, 13-17, 21, 23 for the reasons previously discussed. The examiner disagrees for the reasons discussed above which are now incorporated herein. In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a). From the teachings 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 would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Erin E Hirt whose telephone number is (571)270-1077. The examiner can normally be reached 10:30-7:30 ET M-F.
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 X Liu can be reached at 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 published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ERIN E HIRT/Primary Examiner, Art Unit 1616