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 .
Applicants’ amendments filed 9/16/2025 has been entered. Claims 30, 43 and 49 were amended. New claims 52-56 were added. Claims 30, 31, 33-37, 43, 44 and 49-56 are pending.
Applicant’s amendment has necessitated a new rejection.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 30, 31, 33-37, 43, 44, 49-53 and 56 are rejected under 35 U.S.C. 103 as being unpatentable over Rees et al. (US 2013/0116119; published May 9, 2013).
Applicant’s Invention
Applicant also claims an agricultural formula consisting of 5-20% diformyl urea; 0.0009-0.1 % kinetin; optionally at least one plant growth hormone selected from 0.0005-0.05% gibberellic acid, 0.0005-0.05% at least one auxin and combinations thereof; water and less than 5 wt.% oil and surfactants wherein the auxin is selected from indole-3-butyric acid, indole-3-acetic acid and wherein the components are the only agriculturally active ingredients and at least one plant growth hormone provides synergistic improvement in crop yield (claim 30).
Applicant claims a method of synergistically improving a crop yield comprising applying the formulation of claim 30 to the crop resulting in a synergistic improvements in crop yield (claim 52).
Rees et al. teach a composition comprising an antioxidant, a radiation manager and a plant strengthener (abstract). The formulations are synergistic [0032; 0149, 0223, 0261]. The antioxidant corresponds to formula (I) below which encompasses diacyl urea and diaryl urea [0043].
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The compound of formula (I) diformyl urea is preferred as the antioxidant [0159]. The concentration of the antioxidant ranges from 1 to about 10% w/w [0165].
Other embodiments include a composition comprising only a plant strengthener and an antioxidant [0049-51]. Exemplary plant strengtheners include plant hormones, preferably auxins, such as, indole-3-butyric acid and indole-3-acetic acid [0185-186]. Other exemplary plant hormones are gibberellins such as gibberellic acid A3 [0187]. Exemplary plant hormones also include cytokinins such as kinetin [0188]. Plants strengtheners preferably have concentrations ranging from 5-500 g/L (0.5-50%) of the composition [0189]. The composition improves plant quality, density and color [0093-95]. Carriers include water and oil and optional additives include surfactants [0199-200]. The agrochemical preparations comprise actives ranging from 0.1-99 % w/w of the formulation [0211].
Rees teach that when the active components are applied together the compositions impart synergistic effects which show improved plant quality, density and color [0223-224]. Crops treated with the compositions include wheat, maize and soya [0231-233]. The compositions can be applied to plant seed, soil, roots, foliage or fruits as foliar sprays [0235-239].
With respect to claims 30, 31, 33-37, 43, 44 and 49-51, Rees et al. does not teach that the kinetin ranges from 0.0009-0.1 wt.%, that the gibberellic acid A3 ranges from 0.0005-0.05 wt.%, or that indole-3-butyric acid or indole-3-acetic acid ranges from 0.0005-0.05 wt.%. However, Rees et al. does teach that the total amount of active range from 0.1-99% of the formulation which encompasses formulations comprising 0.1 wt.% kinetin. Furthermore, Rees teach diluting the formulations with water to optimize diluted formulations since the mixtures are formulated as sprayable solutions and emulsions [0221-222]. Therefore, one of ordinary skill in the art would have been able to optimize plant growth hormones within claimed ranges by formulating a diluted spray solution to aid in application.
With respect to claims 30, 31 and 33-37, Rees et al. do not specify that the oil and surfactants are less than 5 wt.%. However, Rees et al. teach that the compositions optionally comprise adjuvants such as surfactants and carriers such as solvents which reads on less than 5 wt.% [0198]. Additionally, since Rees teach that the total amount of actives ranges from 0.1-99% of the formulation, one of ordinary skill would have been able to optimize the carriers to less than 5 wt.% of the composition with routine optimization.
With respect to claims 52, 53 and 56, Rees et al. teach the compositions are applied in customary manner for application by watering (drenching), drip irrigation, spraying, atomizing, broadcasting, dusting, foaming, spreading-on, as a powder or solution for seed treatment or by encrusting [0220]. Rees teach crops include maize, wheat and soya which encompasses corn, winter wheat and soybeans. Rees also teaches synergistic formulations show improved plant quality, density and color.
Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Rees et al. and include the plant growth hormones selected from kinetin in an amount of 0.1 wt.% of the formulation with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to optimize the teachings since Rees et al. teach that the total amount of active range from 0.1-99 wt.% of the formulation and 1-10% diformyl urea is preferred.
Furthermore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Rees et al. and include the surfactants and oil in an amount less than 5 wt.% of the formulation with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to optimize the teachings since Rees et al. teaches that the total amount of actives range from 0.1-99% of the formulation. Therefore, one of ordinary skill would have been able to optimize the carriers to less than 5 wt.% of the composition since amounts of the actives can be as high as 99 wt.% of the formulation and since Rees teaches the additional adjuvants are optional.
Claims 54 and 55 are rejected under 35 U.S.C. 103 as being unpatentable over Rees et al. (US 2013/0116119; published May 9, 2013), as applied to claims 30, 31, 33-37, 43, 44, 49-53 and 56 in view of Liptay et al. (US 9,220,270; patented December 29, 2015).
Applicant’s Invention
Applicant claims a method of synergistically improving a crop yield comprising applying the formulation of claim 30 to the crop resulting in a synergistic improvements in crop yield (claim 52).
The teachings of Rees et al. were addressed in the above 103 rejection.
With respect to claims 54 and 55 Rees et al. does teach a spray application but does not teach a V3-V5 foliar application or in-furrow application. It is for this reason that Liptay et al. is joined.
Liptay et al. teach applying diformylurea (DFU) to enhance feeder root capability (abstract). Treatment of crops in furrow is preferred where DFU is applied as a spray on the opened furrow at the time of sowing (column 2, lines 1-25). Additional applications of DFU to the growing plant after the first or second leaf has formed (V1-V2) by foliar application is preferred (column 1, lines 59-67). Applying DFU at planting prevents natural rain or flooding from drowning the plants (column 3, lines 37-60). Applying DFU at V4 (4th leaf stage of growth) improves weed control (column 5, lines 40-60; Table 5).
Both Rees et al. and Liptay et al. are drawn to N,N’-diformyl urea spray formulations. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Rees et al. and Liptay et al. to include applying the formulation as a V3-V5 foliar application with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to apply N,N’-diformyl urea formulations as V4 foliar application since Liptay et al. teach applying N,N’-diformyl urea after the first or second leaf stage, preferably at V4 growth stage as a foliar treatment to improve weed control.
Furthermore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Rees et al. and Liptay et al. to include applying the formulation in-furrow with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to apply N,N’-diformyl urea in-furrow at the time of planting since Liptay et al. teach applying N,N’-diformyl urea at planting prevents excess water from drowning the plants.
Response to Arguments
Applicant's arguments filed 9/16/2025 have been fully considered but they are not persuasive.
Applicant argues an unexpected synergistic formulation because Rees only provides data with respect to turf grasses subjected to reduced irrigation treatment. The Examiner is not persuaded by this argument because Applicant has failed to demonstrate unexpected results commensurate in scope with the claimed invention. Examples in the specification detail formulations comprising 14% DFU with 10% Stoller stimulate Ye plant growth regulator mix compared with formulations comprising 7.5% DFU, 0.01 cytokinin and optionally 0.05% indole-3-acetic acid. The data only differs from the expected additive effect by 2-6 points which is not significant. Applicants must further show that the results were greater than those which would have been expected from the prior art to an unobvious extent, and that the results are of a significant, practical advantage. Ex parte The NutraSweet Co., 19 USPQ2d 1586 (Bd. Pat. App. & Inter. 1991). Rees teach synergistic combinations of antioxidants selected from diformyl urea with plant strengtheners selected from kinetin [0043, 49-51; 0188]. When a prior art reference merely discloses the structure of the claimed compound, evidence showing that attempts to prepare that compound were unsuccessful before the relevant time will be adequate to show inoperability. In re Wiggins, 488 F.2d 538, 179 USPQ 421 (CCPA 1973). Applicant has not submitted any evidence to show that the teachings of Rees as a whole were unsuccessful. Furthermore, the fact that an author of a publication did not attempt to make the compound disclosed, without more, will not overcome a rejection based on that publication. In re Donohue, 766 F.2d 531, 226 USPQ 619 (Fed. Cir. 1985). Therefore, the claimed compositions are prima facie obvious in view Rees since synergistic compositions are encompassed.
Applicant further argues that Rees is not enabled with respect to every permutation of ingredients listed. The Examiner is not persuaded by this argument because a prior art reference provides an enabling disclosure and thus anticipates a claimed invention if the reference describes the claimed invention in sufficient detail to enable a person of ordinary skill in the art to carry out the claimed invention. Rees et al. does teach that the total amount of active range from 0.1-99% of the formulation which encompasses formulations comprising 0.1 wt.% kinetin and 5-20% N,N-diformyl urea. Therefore, the teachings of Rees do not require "proof of efficacy’ to be enabling." Impax Labs. Inc. v. Aventis Pharm. Inc., 468 F.3d 1366, 1383, 81 USPQ2d 1001, 1013 (Fed. Cir. 2006) (citing Rasmusson v. SmithKline Beecham Corp., 413 F.3d 1318, 1326, 75 USPQ2d 1297, 1302 (Fed. Cir. 2005)). Since Rees teaches synergistic combinations were expected the presently claimed synergistically improved invention would have been prima facie obvious.
Conclusion
No claims allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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DANIELLE D. JOHNSON
Examiner
Art Unit 1617
/CRAIG D RICCI/Primary Examiner, Art Unit 1611