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 .
Claims 19-20 are pending in this application.
35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 20 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 19 has been amended such that it now has two periods at the end. Correction is required.
35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 20 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 20 depends on independent claim 19, which is directed to a composition. Claim 20 recites a method step of applying to the plants “up to four times, with at least a two week interval between each application.” A composition is not changed or further limited by how often it is to be applied. As an analogy, a 325 mg aspirin pill per se is not further limited by how often it is administered; it is the same pill whether it is administered four times a day, once a day, or once every two weeks. Therefore, claim 20 fails to further limit the subject matter of the claim upon which it depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
35 U.S.C. 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Hery (US 2017/0251677) in view of Yvin et al. (US 5,750,472; hereinafter, Yvin '472), Yvin (WO 94/00993), USDA Technical Evaluation Report on laminarin, Rees et al. (US 2013/0116119; hereinafter, Rees), and Field Museum (the article, “Chocolate’s natural roots: the cacao tree”).
Hery (US 2017/0251677) discloses that algal extracts are known organic enriching agents and biostimulants, with numerous beneficial effects such as increase in yield, nutrient supply, resistance to frost, resistance to stress conditions, improved period of preservation of fruits, and reduction in attacks by fungi and insects (paragraph 4). Algal extracts are also known improve seed germination and plant emergence (paragraph 5). Hery discloses an improved algal extract that is more effective in stimulating plant emergence, promoting plant growth, and repelling birds. See paragraph 13; see also paragraphs 21-24 and claims 16-32 for various plant growth promoting uses of Hery’s algal extract, including seed treatment and bird repellence. Hery’s Algal extract percentage dry matter can be between 6-100 wt%, 9-70 wt%, or 12-50 wt% (see paragraphs 14, 20, 26; claims 11, 14, 18-19). Hery’s Example 1 discloses a 13 wt% algal extract of Ascophyllum nodosum (paragraph 62; see also claims 11-12). Hery’s process for making the algal extract comprises obtaining an algal filtrate and concentrating the filtrate (paragraphs 34-40, 46-47, 52). In other words, Hery’s algal extract is also an algal filtrate. Combined use with “a nutritive, biostimulating or plant protecting composition” is disclosed (paragraph 54); formulation with another algal extract and/or plant-protection product is disclosed (paragraph 33).
Yvin '472 (US 5,750,472) discloses that laminarin is a known plant defense enhancer, which induces the activation of enzymes for growth process in plants, thereby accelerating seed germination and plant growth (column 1, line 55 to column 2, line 10).
Yvin ‘472 teaches compositions containing 0.005-50 wt% or 1-25 wt% laminarin when the composition is in solid form and 0.005-10 wt% or 0.5-5 wt% laminarin when the composition is in liquid form (column 2, lines 33-37)1. Example 5 of Yvin '472 discloses a plant growth stimulant composition in liquid form comprising 0.1 wt% laminarin (column 7). Combined use with agriculturally acceptable carrier or vehicle and/or at least one additional substance selected from deficiency-correcting elements, fungicides, insecticides, herbicides, growth hormones, lipoamino acids and betaines is disclosed (column 2, lines 13-21, 38-48). Example 2 of Yvin '472 obtains laminarin from Ascophyllum nodosum (columns 3-4).
Yvin (WO 94/00993) is the international application from which Yvin ‘472 (US 5,750,472) was filed as a 371 application. Therefore, Yvin '472 and Yvin (WO 94/00993) have the same specification disclosure. Yvin (WO 94/00993) is cited to establish that there is a typographical error in Yvin '472 at column 2, lines 33-37. In the paragraph that spans lines 33-37 of column 2 of Yvin '472, Yvin (WO 94/00993) clearly shows that the “%” sign was erroneously typeset as “3.” See in Yvin (WO 94/00993), page 3, lines 16-19. A machine translation of those lines of Yvin (WO 94/00993) was provided with the Office action of 12/6/2024. Translation of the relevant lines is provided in paragraph [0024] of the machine translation.
USDA Technical Evaluation Report on laminarin discloses that species of Laminaria or Ascophyllum brown algae naturally contain laminarin (lines 39-44). Laminarin is well known to stimulate plant defenses (lines 55-60, 74-94).
Rees (US 2013/0116119) is cited to establish that laminarin is a known plant strengthener, an inducer of systemic acquired resistance in plants (paragraphs 177, 183)2, which can be added as a component of a composition applied to cocoa plants (paragraph 231 in view of paragraphs 7-16).
Field Museum (the article, “Chocolate’s natural roots: the cacao tree”) is cited to establish that (1) pods of cacao tree, i.e., cocoa plant, are eaten by birds (second page of the article), and (2) flowers grow directly out of cacao tree trunk and lower branches, which help the tree reproduce by attracting important pollinators (third page of the article).
Hery does not explicitly disclose a plant treatment composition wherein Hery’s algal extract of Ascophyllum nodosum is combined with laminarin at a ratio in the range of “600-800 g/L to 30-60 g/L” or “about 20:1 to about 13:1,” as claimed herein.
However, Hery exemplifies a liquid composition that contains an extract/filtrate of Ascophyllum nodosum having a percentage of .dry matter of 5.1% or 13% (Example 1) and further discloses a broader range that includes 9-70 wt% (claim 11), with combined use with other ingredients that would benefit plants such as nutritive, biostimulating or plant protecting composition, and/or plant-protection product. The ordinary skilled artisan would have been motivated to combine Hery’s extract/filtrate of Ascophyllum nodosum with laminarin composition of Yvin '472 with an expectation of improved plant growth and enhancement of plant defense. It would have been obvious to combine two compositions that benefit plants to form a third composition, particularly because Hery teaches combination with a plant protecting agent and/or biostimulating agent such as Yvin’s composition comprising laminarin. In re Kerkhoven, 205 USPQ 1069, 1072 (CCPA 1980); In re Crockett, 126 USPQ 186 (CCPA 1960); Ex parte The NutraSweet Co., 19 USPQ2d 1586, 1587 (Bd. Pat. App. & Int. 1991).
As for the claimed ratio range of biostimulant to plant defense enhancer, such ratio range is quite broad and would have been obvious for the reasons set forth below.
The claimed biostimulant is an algae filtrate of Ascophyllum. A filtrate is a liquid that passes through a filter, though it could also read on solidified dry matter of such liquid that has been reconstituted with a liquid. Without any specific filtering parameters (e.g., volume and temperature of water used for filtration, weight of Ascophyllum, filter pore size) as to how the filtrate is obtained, the claims are readable on a very broad range of Ascophyllum filtrates or extracts. For example, the following three very different filtrates are readable on the claims:
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Because a filtrate is a liquid, the 600-800 g/L for the biostimulant (Ascophyllum filtrate) component of the claimed ratio conveys 600 to 800 grams of Filtrate 1, 2, or 3, supra, per liter of the ultimate composition. However, the ordinary skilled artisan would have recognized that the content of 600-800 grams of these three filtrates would be very different in makeup and concentration, because a filtrate obtained with greater amount of Ascophyllum with smaller volume of hot water and larger filter pore size (e.g., Filtrate 1) would extract more components and be more concentrated than a filtrate obtained with smaller amount of Ascophyllum with larger volume of cold water and smaller filter pore size (e.g., Filtrate 2). Consequently, even though Applicant argues in the response filed on 8/12/2025 that “[t]he only rational way to obtain a ratio from two quantities expressed in g/L is to divide the mass concentrations on an identical volumetric basis,” the issue is not in the currently recited ratio expression but in what can constitute the antecedent of the ratio, i.e., algae filtrate of Ascophyllum. The filtrate could be very dilute, very concentrated, or anything in between, and said filtrate could contain various different components depending on how it was processed. Thus, the claimed ratio is an extremely broad one that is readable on all the variations of concentration strength suggested by Hery and Yvin ‘472.
In light of discussion set forth, the claimed ratio would have been obvious from the teachings of Hery and Yvin ‘472 as shown below:
Hery’s Ascophyllum extract
percentage dry matter
Yvin '472 laminarin
6-100 wt%
9-70 wt%
12-50 wt%
13 wt%
Solid
Liquid
0.005-50 wt%
1-25 wt%
0.005-10 wt%
0.5-5 wt%
A ratio range of the Ascophyllum filtrate to laminarin of about 20:1 to about 13:1 would have been obvious from the prior art disclosed amounts of the individual ingredients. Both ingredients are known to be beneficial to plants and suitable prior art amounts of the individual ingredients would obtain the claimed ratio range, such as for example Hery’s 13 wt% dry matter from extract of Ascophyllum to 1 wt% Yvin’s laminarin.
Claim 19 has been amended to recite “wherein when applied to cocoa plants, the composition reduces flower abortion, increases cherelles, increases harvested pods, and increases yields.”
The cited prior art references do not explicitly disclose these results when applied to cocoa plants. Application to cocoa plants is suggested by advantageous suitability to all plants taught by the cited prior art references, in particular Rees, who teach applicability of laminarin to cocoa plants. Hery teaches that algal extracts are known organic enriching agents and biostimulants and algae filtrate of Ascophyllum stimulates plant emergence, plant growth, plant development, plant reproduction, and provides bird repellence (paragraphs 13, 21-24; claims 16, 24-27, 30-32). As for laminarin, which is by the way already present in Hery’s algae filtrate of Ascophyllum3, Yvin ‘472 teaches it as a plant defense enhancer that induces activation of enzymes for growth process in plants, thereby accelerating seed germination and plant growth (column 1, line 55 to column 2, line 10). Because laminarin enhances plant defense and activates plant growth, and algal extract of Ascophyllum stimulates plant growth, development, and reproduction, as well as repels birds, the ordinary skilled artisan would have expected a wide range of improved outcomes, including reduction in flower abortion, increased cherelles, increased harvested pods, and increased yields. By boosting plant defenses, stimulating plant growth, development, and reproduction, and repelling birds that consume cocoa plant pods, the combination of algae filtrate of Ascophyllum and laminarin would have been expected to promote healthier cocoa crops, reduce flower abortion, increase cherelles, increase harvested pods, and increase yields.
The amendatory features of claim 20 are noted, but said features are method steps that fail to further distinguish the composition per se. A composition per se is not changed or further limited by the frequency of its application.
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 claimed invention, because every element of the invention and the claimed invention as a whole have been fairly disclosed or suggested by the teachings of the cited references.
Applicant’s arguments filed on 3/6/2026 have been given due consideration but they were deemed unpersuasive.
Applicant criticizes each of the cited prior art references without taking into account the combined teachings and suggestions. Applicant argues that Hery does not disclose or even suggest a composition comprising a plant defense enhancer (laminarin) and a biostimulant (algae filtrate of Ascophyllum), and Yvin does not identify an Ascophyllum algae filtrate as a co-active. However, Hery teaches combined use of algae filtrate of Ascophyllum with “a nutritive, biostimulating or plant protecting composition” (paragraph 54), or “plant-protection product, a second plant and/or algal extract” (paragraph 33). Thus, teachings of laminarin by Yvin ‘472 as a plant defense enhancer would have suggested the combined use of both ingredients for improving plant health and growth.
Further, laminarin is known to be already present in the filtrate of Ascophyllum (Hery, paragraph 32; USDA Technical Evaluation Report; Yvin ‘472, Example 2), so teachings of Yvin ‘472 would have motivated the ordinary skilled artisan to increase the amount to obtain Yvin’s concentration range of 0.005-50 wt% or 1-25 wt% laminarin when the composition is in solid form and 0.005-10 wt% or 0.5-5 wt% laminarin when the composition is in liquid form (column 2, lines 33-37).
Applicant argues that “Hery is concerned with early-season establishment of crops ensuring seeds germinate, seedlings emerge uniformly, and seeds are protected from predation.” Applicant further argues that “Hery contains no disclosure relating to flower biology, fruit set, fruit retention, pod development, or yield in perennial fruit crops.” Applicant adds, “Hery cannot render Applicant’s claimed composition obvious” because “Hery and Applicant present disclosure operate in entirely different technical problem spaces, with different plant stages, different biological endpoints, and different agronomic motivation.”
The Examiner cannot agree. Hery’s claims 11-12, 16, and 26 are reproduced below, and the Examiner cannot find any limitation as to early season use or use only on seeds or seedlings (emphases added):
11. A concentrated algal extract having a percentage dry matter of between 6 and 100%, and containing 0 to 50%, by weight of alginate or of cellulose relative to the weight of the extract.
12. The extract as claimed in claim 11, wherein the alga is selected from Ascophyllum nodosum …
16. A process for promoting the emergence, growth, development and/or reproduction of a plant, wherein the extract is as defined in claim 11, and is applied by infiltration into the soil, sprayed onto the leaves of the plant, applied to a seed before sowing, or applied to the roots of a seedling, before the planting thereof.
26. A method for repelling bird, wherein an extract as defined in claim 11 is applied by infiltration into the soil, sprayed onto the leaves of the plant, applied to a seed before sowing, or applied to the roots of a seedling, before the planting thereof.
As can be seen from the full scope of these claims, additional embodiments taught by Hery, such as promoting growth, development and/or reproduction of a plant, are inconsistent with Applicant’s argument that Hery is concerned only with seeds, seedlings, and early season use.
Similarly, Applicant argues that Yvin ‘472 “addresses seed-stage endpoints, seed germination and early plant growth and positions laminarin as an accelerator at this stage. That is, Yvin’s field of use is pre-reproductive establishment (seed/seedling vigor), not reproductive performance.” Again, this is contradicted by the prior art, i.e., Yvin ‘472’s application to fruit crops such as apple trees, pear trees and vines (column 2, line 56) and Yvin’s claim 1, which is not limited to seed or early plant growth (emphasis added):
1. A method for accelerating a plant’s growth comprising a step of applying a composition containing an effective amount of laminarin to the leaves of said plant.
Applicant also advances various arguments concerning the relative amount or ratio features of the instant claims and criticizes Hery and Yvin ‘472 for failing to disclose or suggest said features. This issue has been fully discussed above and the discussions there are incorporated herein by reference.
Additionally, it can be noted that Applicant’s own specification results fail to meet the claimed relative amount or ratio features. No relative amount or ratio is given for whatever might have been used for “Invention” in Figures 1 to 3. Applicant seems to imply in the arguments set forth on pages 6-8 of the response filed on 3/6/2026 that the “Invention” bar in the graphs of Figures 1, 2, and 3 was obtained by applying a mixture of algae filtrate from Ascophyllum and laminarin. The problem is that the specification does not actually disclose this, and consequently, there is of course no mention of the relative amount or ratio. Keeping in mind that the specification was filed on 3/27/2020, the pending claims at that time encompassed one or more plant extracts such as horsetail extract or a micro-organism such as Trichoderma as the plant defense enhancer, and amino acid, protein, or peptide as the biostimulant (see original claims 1-6, filed on 3/27/2020). Therefore, in the absence of explicit disclosure in the originally filed disclosure that the dark black bars representing the “Invention” in graphs of Figures 1, 2, and 3, it cannot be concluded that they represent a mixture of an algae filtrate of Ascophyllum as the biostimulant and laminarin as the defense enhancer, let alone that they further meet the claim-recited relative amount or ratio. For these reasons, none of the specification results are deemed relevant with respect to the currently claimed invention.
Applicant asserts “hindsight reconstruction” in the Examiner’s reasoning regarding the relative amount or ratio features. The Examiner cannot agree, because said features are so broad that they are readily met by the prior art teachings. Claim 19 is reproduced with markings below to further explain the breadth of the relative amount and ratio features, which are clearly made obvious by the prior art teachings:
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The issue is not in the currently recited relative amount or ratio expression but in what can constitute the antecedent of the ratio, i.e., algae filtrate of Ascophyllum. The filtrate could be very dilute, very concentrated, or anything in between, and said filtrate could contain various different components depending on how it was processed. Thus, the claimed ratio is an extremely broad one that is readable on all the variations of concentration strength suggested by Hery and Yvin ‘472.
For these reasons, Applicant’s arguments are deemed unpersuasive, and all claims must be rejected again. No claim is 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 JOHN PAK whose telephone number is (571)272-0620. The Examiner can normally be reached on Monday to Friday from 8:30 AM to 5 PM.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's SPE, Fereydoun Sajjadi, can be reached on (571)272-3311. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
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/JOHN PAK/Primary Examiner, Art Unit 1699
1 See discussion of Yvin (WO 94/00993) below. It is noted that Yvin '472 was filed as a 371 of the international application that published as Yvin (WO 94/00993). In other words, these two documents by Yvin share the same specification disclosure.
2 See the category “Plant Strengthener,” which includes “agent that reinforces a plant’s natural protective mechanisms” in paragraph 177 and the heading above said paragraph.
3 See Hery’s paragraph 32; see also USDA Technical Evaluation Report on laminarin.
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