Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Applicant’s amendment filed 2/17/2026 has been entered. Claims 1, 2, 19, 28 and 30-32 were amended. New claims 33-35 were added. Claims 6, 18, 26 and 29 were cancelled. Claims 1, 2, 19, 28 and 30-35 are under examination.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/17/2026 has been entered.
Withdrawn rejections
Applicant's amendments and arguments filed 2/17/2026 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn.
Applicant’s amendment has necessitated a new rejection.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1, 2, 19, 28 and 34 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6, 7 and 14-20 of U.S. Patent No. 10,570,066 (herein ‘066) in view of Shen et al. (CN101084765; published December 12, 2007). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claim are drawn to a product consisting of cobalt lactate a metal sulfate and optionally one or more of a carrier, a fiber, yucca extract, an inorganic salt compound, an inorganic oxide compound, an inorganic hydroxide compound or an enzyme whereas ‘066 teach a composition comprising up 12% by weight of a combination of cobalt sulfate and cobalt lactate, up to 9% by weight magnesium sulfate and magnesium lactate and up to 2% by weight zinc sulfate and zinc lactate.
However, ‘066 does not include the limitation that the product has a particle size of about 50 to about 70 mesh. It is for this reason that Sheh et al. is joined.
Shen et al. teach a fruit and vegetable color fixative comprising 5-10% zinc lactate, 2.5-5% copper lactate and 85-92.5% maltodextrin wherein the lactates are crushed to 60-80 mesh fineness (page 1). The zinc lactate is obtained by combining calcium lactate with zinc sulfate in a ratio of 1:0.9-1.1 with heating and removing excess sulfate (claim 3).
Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of ‘066 and Shen et al. to make a mineral product having a particle size of about 50-70 mesh with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to combine the teachings of ‘066 and Shen et al. to further include a mineral product with particle size of about 50-70 mesh because Shen et al. teach lactates are crushed into this range to produce compositions which adhere to fruit and vegetables.
Claims 1, 2, 19, 28 and 30-34 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 10,696,602 (herein ‘602) in view of Shen et al. (CN101084765; published December 12, 2007). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claim are drawn to a product consisting of cobalt lactate a metal sulfate and optionally one or more of a carrier, a fiber, yucca extract, an inorganic salt compound, an inorganic oxide compound, an inorganic hydroxide compound or an enzyme whereas ‘602 teach a method of stimulating microbes in soil comprising applying a mineral product comprising larch arabinogalactan and particles consisting of cobalt lactate. Claims 3, 10 and 18 further add metal sulfates.
However, ‘602 does not include the limitation that the product has a particle size of about 50 to about 70 mesh. It is for this reason that Sheh et al. is joined.
Shen et al. teach a fruit and vegetable color fixative comprising 5-10% zinc lactate, 2.5-5% copper lactate and 85-92.5% maltodextrin wherein the lactates are crushed to 60-80 mesh fineness (page 1). The zinc lactate is obtained by combining calcium lactate with zinc sulfate in a ratio of 1:0.9-1.1 with heating and removing excess sulfate (claim 3).
Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of ‘602 and Shen et al. to make a mineral product having a particle size of about 50-70 mesh with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to combine the teachings of ‘602 and Shen et al. to further include a mineral product with particle size of about 50-70 mesh because Shen et al. teach lactates are crushed into this range to produce compositions which adhere to fruit and vegetables.
Claims 1, 2, 19, 28, 30, 33 and 34 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 11,078,127 (herein ‘127) in view of Shen et al. (CN101084765; published December 12, 2007). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claim are drawn to a product consisting of cobalt lactate a metal sulfate and optionally one or more of a carrier, a fiber, yucca extract, an inorganic salt compound, an inorganic oxide compound, an inorganic hydroxide compound or an enzyme whereas ‘127 teach a mineral product comprising cobalt lactate at least one of manganese sulfate, zinc sulfate or copper sulfate and larch arabinogalactan.
However, ‘127 does not include the limitation that the product has a particle size of about 50 to about 70 mesh. It is for this reason that Sheh et al. is joined.
Shen et al. teach a fruit and vegetable color fixative comprising 5-10% zinc lactate, 2.5-5% copper lactate and 85-92.5% maltodextrin wherein the lactates are crushed to 60-80 mesh fineness (page 1). The zinc lactate is obtained by combining calcium lactate with zinc sulfate in a ratio of 1:0.9-1.1 with heating and removing excess sulfate (claim 3).
Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of ‘127 and Shen et al. to make a mineral product having a particle size of about 50-70 mesh with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to combine the teachings of ‘127 and Shen et al. to further include a mineral product with particle size of about 50-70 mesh because Shen et al. teach lactates are crushed into this range to produce compositions which adhere to fruit and vegetables.
Claims 1, 2, 28 and 32-34 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 19, 21 and 25-28 of copending Application No. 18/138,405 (herein ‘405) in view of Shen et al. (CN101084765; published December 12, 2007). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claim are drawn to a product consisting of cobalt lactate a metal sulfate and optionally one or more of a carrier, a fiber, yucca extract, an inorganic salt compound, an inorganic oxide compound, an inorganic hydroxide compound or an enzyme whereas ‘405 is a composition consisting of cobalt lactate, cobalt sulfate and optionally an iron chelate and optionally one or more of a carrier, a fiber or an enzyme. However, ‘405 does not include the limitation that the product has a particle size of about 50 to about 70 mesh. It is for this reason that Sheh et al. is joined.
Shen et al. teach a fruit and vegetable color fixative comprising 5-10% zinc lactate, 2.5-5% copper lactate and 85-92.5% maltodextrin wherein the lactates are crushed to 60-80 mesh fineness (page 1). The zinc lactate is obtained by combining calcium lactate with zinc sulfate in a ratio of 1:0.9-1.1 with heating and removing excess sulfate (claim 3).
Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of ‘405 and Shen et al. to make a mineral product having a particle size of about 50-70 mesh with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to combine the teachings of ‘405 and Shen et al. to further include a mineral product with particle size of about 50-70 mesh because Shen et al. teach lactates are crushed into this range to produce compositions which adhere to fruit and vegetables.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1, 2, 28, 32, 34 and 35 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Holt et al. (US 3,914,438) in view of Shen et al. (CN101084765; published December 12, 2007).
Applicant claims a mineral product consisting of cobalt lactate; a metal sulfate; optionally, at least one additional mineral chelated compound other than cobalt lactate; and optionally, one or more compounds having a particle size of about 50-70 mesh and about 2-10 wt.% of one or more metal sulfates.
With respect to claims 1, 2, 28, 32, 34 and 35, Holt et al. teach a nutrient composition for animals and plants comprising whey fermented in the presence of cobalt ions in a mineral mix (abstract). The nutrient composition provides sources of trace elements in a form that is more readily absorbed by the plants and at levels that are not phytotoxic to plants (column 2, lines 23-29). The particle size of the mineral mix is reduced to a size less than 44 microns (column 3, lines 28-31). The compositions also applied to the plants fruiting areas, rootzone and foliage to mobilize within the vascular system which overcomes limitations within the soil and environment that interfere with nutrient absorption (column 2, lines 30-42). The source for the cobalt ions includes cobalt lactate and copper sulfate preferably in an amount from 5 ppm to 1000 ppm (column 3, lines 60-66). However, other amounts of cobalt either below or above these practical ranges can be employed without departing from the scope of the invention (column 3, line 67 through column 4, line 5). Other trace mineral sources that are included in the mineral mix are selected from copper, zinc and manganese and salts (column 5, lines 18-25). The sources of the trace elements and mineral vary but are preferably salts that include sulfates (column 5, lines 26-35). Minerals range from 1-15% of the mineral mix which includes clays as a carrier and other dispersants, surfactants and wetting agents (column 5, lines 36-57). The whey comprises 3-30% of the composition (claim 2). Preparing the composition in water and applying it to foliage by spraying strawberry, tomato and other crop fields showed a higher crop yield, healthier produce and better root structure then untreated crops (column 11, lines 13-31; limitation of claim 32). In another test seeds are treated with the dry nutrient composition displayed similar results (column 11, lines 32-50).
With respect to claims 1, 34 and 35, Holt et al. do not teach the mineral product has a particle size of about 50-70 mesh or specify about 15-20 wt.% mineral lactate and about 2-10% metal sulfates. However, Holt et al. teach minerals range from 1-15% of the mineral mix but the other amounts of cobalt either below or above these practical ranges can be employed without departing from the scope of the invention. Holt also teach that the particle size of the mineral mix can be reduced to a size less than 44 microns. It is for this reason that Shen et al. is joined.
Shen et al. teach a fruit and vegetable color fixative comprising 5-10% zinc lactate, 2.5-5% copper lactate and 85-92.5% maltodextrin wherein the lactates are crushed to 60-80 mesh fineness (page 1). The zinc lactate is obtained by combining calcium lactate with zinc sulfate in a ratio of 1:0.9-1.1 with heating and removing excess sulfate (claim 3).
Holt et al. and Shen et al. are drawn to mineral lactate compositions used in agriculture. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Holt et al. and Shen et al. to include mineral lactate compound having a particle size of about 50-70 mesh with a reasonable expectation of success. One of ordinary skill in the art would have been motivated at the time of the invention to combine the teachings of Holt et al. and Shen et al. to further include particle size of about 50-70 mesh because Shen et al. teach lactates are crushed into this range to produce compositions which adhere to fruit and vegetables.
Furthermore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Holt et al. and Shen et al. to include about 15-20 wt.% mineral lactate and about 2-10% metal sulfates. with a reasonable expectation of success. One of ordinary skill in the art would have been motivated at the time of the invention to combine the teachings of Holt et al. and Shen et al. to further include these ranges because Holt et al. teach minerals range from 1-15% of the mineral mix but the other amounts of cobalt either below or above these practical ranges can be employed without departing from the scope of the invention. Additionally, Shen et al. teach combining mineral lactates with sulfates and removing excess sulfates. Therefore, one ordinary skill would have been able to achieve the claimed amounts through routine experimentation.
Claims 19, 30 and 31 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Holt et al. (US 3,914,438) in view of Shen et al. (CN101084765; published December 12, 2007) as applied to claims 1, 2, 28, 32, 34 and 35 in further view of Tenzer et al. (US 4,551,164).
Applicant claims a mineral product consisting of cobalt lactate; a metal sulfate; optionally, at least one additional mineral chelated compound other than cobalt lactate; and optionally, one or more compounds having a particle size of about 50-70 mesh and about 2-10 wt.% of one or more metal sulfates.
The teachings of Holt et al. and Shen et al. are addressed in the above 103 rejection.
With respect to claim 19, Holt et al. and Shen et al. do not teach a method of stimulating microbes in soil to increase growth of a plant comprising applying the product to soil.
With respect to claims 30 and 31, Holt et al. and Shen et al. do not teach fiber selected from yucca or that the composition further comprises 1-5% fiber and 0.1-2% enzyme. It is for this reason that Tenzer et al. is joined.
Tenzer et al. teach a novel plant growth composition comprising a mixture of bacteria and algae and a method of promoting plant growth with the composition (abstract). Tenzer et al. teach that bacteria in soil can benefit plant growth and applying the mixture of bacteria and algae promote plant growth (column 1, lines 22-30 and 45-58). Components of the compositions are prepared by preparing nutrient media which includes ammonium sulfate, tryptose broth (enzymes), trace minerals and other minerals sulfate salts (column 2, lines 8-33). A preferred nutrient source is whey which comprises yucca extract (soresepinium) in a concentration of 0.5-2% and lipase in a concentration of 0.5-2% which aid in stabilization (column 2, lines 42-63). The composition is further stabilized by lactic acid (column 2, lines 64-67). Treating tomato seed with the composition demonstrated increase in fruit number and volume (column 7, lines 25-27).
Holt et al., Shen et al. and Tenzer et al. are drawn to mineral compositions used in agriculture. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Holt et al., Shen and Tenzer et al. to include a method of stimulating microbes in soil with the composition with a reasonable expectation of success. One of ordinary skill in the art would have been motivated at the time of the invention to combine the teachings of Holt et al., Shen et al. and Tenzer et al. to include stimulating microbes in the soil because Tenzer et al. teach bacteria aids in plant growth and formulations comprising yucca and enzymes aid in increasing plant growth by stimulating microbes in soil.
Furthermore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Holt et al., Shen and Tenzer et al. to include 0.5-2% yucca fiber and 0.5-2% enzyme with a reasonable expectation of success. One of ordinary skill in the art would have been motivated at the time of the invention to combine the teachings of Holt et al., Shen et al. and Tenzer et al. to include to further include fiber and enzymes in this range because Tenzer et al. teach yucca and enzymes in these amounts aid in improving soils and increasing plant growth.
Claim 33 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Holt et al. (US 3,914,438) in view of Shen et al. (CN101084765; published December 12, 2007) as applied to claims 1, 2, 28, 32, 34 and 35 in further view of Zeigler et al. (US 2004/0228928; published November 18, 2004).
Applicant claims a mineral product consisting of cobalt lactate; a metal sulfate; optionally, at least one additional mineral chelated compound other than cobalt lactate; and optionally, one or more compounds having a particle size of about 50-70 mesh and about 2-10 wt.% of one or more metal sulfates.
The teachings of Holt et al. and Shen et al. are addressed in the above 103 rejection.
With respect to claim 33, Holt et al. and Shen et al. do not teach a larch arabinogalactan. It is for this reason that Zeigler et al. is joined.
Zeigler teach methods of enhancing the potency and bioactivity of polysaccharides with selected minerals (abstract). The minerals include mineral salts that include chelated minerals [0033]. The polysaccharides include larix occidentalis and extracts of larix with arabinogalactans extracted from Larix (larch) showing the best results [0042-44]. Table 1 details mineral enhancd polysaccharide formula containing 40,000 ppm purified larch tree arabinogalactan in water along with minerals in the form of hydroxides including copper [0045].
Holt et al., Shen et al. and Zeigler are drawn to mineral compositions. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Holt et al., Shen and Zeigler to include larch arabinogalactan with a reasonable expectation of success. One of ordinary skill in the art would have been motivated at the time of the invention to combine the teachings of Holt et al., Shen et al. and Zeigler to include larch arabinogalactan because Ziegler teach that combining minerals with larch arabinogalactan enhances bioactivity and potency.
Conclusion
No claims allowed.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1617