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 .
This action has been made FINAL.
Status of the Claims
The status of the claims filed 15 December 2025 is as follows:
Claims 29, 51-60, 68-69, 71-72 and 74 are pending.
Claim 73 has been cancelled.
Claims 29, 55, 58, 71 and 72 are currently amended.
Claims 29, 51-60, 68-69, 71-72 and 74 are hereby examined.
Information Disclosure Statement
References listed on the IDS, filed 15 December 2025 have been considered.
Withdrawn Rejections
The rejection of claims 29 and 73 and dependent claims, in part, 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of the amendments and cancelation of claim 73.
The rejection of claim 71 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, for insufficient antecedent basis has been withdrawn in light of the amendments.
Claim Objections
Claims 29 and 71 are objected to because of the following informalities:
Applicants should correct the grammar of claim 29 part (e) to address the subject-verb agreement error.
Applicants should amend claim 71 to –plant material--.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 29 and all dependent claims because they fail to overcome the deficiencies of the independent claim, are 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.
The term “exposed to a fungal disease” is a relative term which renders the claim indefinite. The term “exposed to a fungal disease” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear how the plants are exposed to the funal disease. Is there an active method step that inoculates the plants with a fungal infection or is the field tested for a fungal disease before planting of the plants? Are the plants planted in a field and the infection is random? In Example 4, Applicants describe seedlings that were inoculated with 1 mL per box of 105 condia mL-1 Bremia lactucae wing an atomizer [0184], in [0219, UV-B pretreated or control plants were used as a source of inoculum and in Example 7, 100,000 spores/mL of B. tactucae were used to inoculate the lettuce plants. It is unclear the exposure that is necessary to achieve the claimed methods.
It is unclear if the third plurality of plant material have been exposed to a fungal disease. While exposure to a fungal disease is explicitly recited in the limitations for the first and third plant materials, there is no mention on the exposure to fungal disease to the second plant materials.
It is unclear if the first, second or third plant material are the same plant species. The claim states “wherein the first plant material, the second plant material, and the third plant material comprise lettuce, tomato, cucumber, broccoli, cannabis, strawberry, or eggplant”. It is unclear if the first, second and third plant materials are of the same species, different species or some other interpretation not envisioned by the Examiner.
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 (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.
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 29, 52-60, 68-69 and 71-72 are rejected under 35 U.S.C. 103 as being unpatentable over Wargent (WO/2015/137825; 17 September 2014). Due to Applicant’s amendments of the claims, the rejection has been modified from the rejection as set forth in the Office action mailed 15 July 2025, as applied to claims 29, 52-60, 68-69 and 72-73. Applicant’s arguments filed 15 December 2025 have been fully considered but they are not persuasive.
The claims are drawn to a method for reducing a fungal disease in a field of crops and improving crop yield, the method comprising: comprising administering UV-B to a first and second plant material in a range of about 280 nm and 310 nm at least 1 day prior to disease exposure, then sowing the plurality of plant materials in the field, cultivating the plant material in the field, wherein the plant material are exposed to a fungal disease, and harvesting and rejecting a reduced number of crops with symptoms of disease, wherein the rejection is reduced by at least 5% as compared to fungal disease propagation in a second plurality of plant materials that have not been administered light comprising UV-B, wherein the symptoms of disease include leaf spots, galls, cankers, wilting, yellowing, discoloring, dwarfing or necrosis caused by a list of fungal pathogens, wherein the plant material comprises lettuce, tomato, cucumber, broccoli, cannabis, strawberry, or eggplant and wherein harvesting occurs at least 3 months after sowing the plant material. The claims are further drawn to the plant material being a seed that has been administered UV-B light for a duration of less than 1 hour, the UV-B light comprising a wavelength peaking at 280 or 300 nm, and the dose in a range of about 0.1 kJ m-2h-1 to about 20 kJ m-2h-1 or from about 1.2 kJ m-2h-1 to about 7 kJ m-2h-1. The light may comprise blue light, red light, or a combination of both.
Claim Interpretation: The claims are broadly drawn to a first plant material that has been administered UV-B at a specific wavelength and a second and third plant material that has not been administered the UV-B light at a specific wavelength. The first plant material and third plant material have been explicitly exposed to a fungal disease. It is unclear if the second plant material has been exposed to the fungal disease and, if it has, how the second plant material differs from that of the third plant material. Given the ambiguity of the claim language, one of ordinary skill in the art would not be able to discriminate between plants of the second plant material and the third plant material and are therefore, interpreted to be the same.
Wargent teaches a method to improve crop yield and/or quality through UV-B exposure by exposing a plant seedling, plant or harvestable crop [entire document]. Wargent’s methodology includes exposing the plant seedling with ultraviolet (UV) irradiation with at least one wavelength between 280-310 nm [page 3, lines 4-5] for 2-15 days (which reads on wherein a duration of administering UV-B is at least 10 hours) [page 8, lines7]. Wargent teach that green lettuce plants were exposed to a UV dosage for seven days and a selection of those plants were destructively harvested [page 15, lines 4-7]. Wargent teach that with green lettuce plants whole shoot fresh wight is a key indicator of final harvest yield size. Wargent also teaches the inclusion of blue visible light (between 400 to 500 nm) and/or red visible light (between 655-680 nm) [page 10, lines 1-7] and that co-administration with blue and red visible light may be particularly useful [page 8, lines 2-3]. The methods of Wargent also include “selecting, or determining an appropriate level of hardiness in a plant seedling or seedlings” [page 3, lines 16-17]. Wargent teaches that the treatment also appears to achieve desirable or improved hardiness from stresses such as abiotic and biotic stresses [page 3, lines27-28]. Wargent 2014 teaches that green lettuce plants were germinated, exposed to UV light (some plants exposed to UV-B light peaking at 290 nm and some treated with UV light at 354 nm (outside the UV-B spectrum)) and then planted in the field site (which reads on a second/third plant material sown proximate to the plant material, wherein the second/third plurality of plant material was not administered light comprising UV-B). Wargent surprisingly found that using a wavelength or wavelengths in a specific and narrow focused range within UV-B radiation between 280-310 nm led to the beneficial results (including whole shoot fresh weight and hardiness; an almost 10% increase in hardiness). The long-term hardiness of the plant refers to improved resistance to stresses encountered such as weather damage, sun exposure, disease (which would include fungal disease) and/or insect pest attack during the growth phase of the plant prior to harvest. The commercial end result of an improved yield and/or quality of the crop at harvest is thought be at least partially attributed to an improved long-term hardiness resulting from the treatment and that the end result of improved crop yield and/or quality is observed as a result of this treatment method [page 5, lines 4-9]. The invention is intended to help to improve taste, size, shape, colour, texture, visual appearance, shelf like and/or ability to withstand post-harvest handling [page 5, lines 15-16] and reduce attrition of plants prior to harvest, and therefore improve crop quality and/or yield [page 5, lines 19]. In Example 2, green lettuce seedlings were planted 24 hrs after UV treatment into a lettuce field planting site carrying Sclerotina fungal disease. Plants were exposed to a UV dosage for seven days and then destructively harvested for assessment of the three measured variables of average Hardiness Index [page 15, lines 4-7]. An assessment was carried out to determine the hardiness of the plants of the UV treated seedlings according to the present invention compared to untreated seedlings, 24 hrs after UV treatment had finished and found that increased hardiness in the UV treated seedlings had been achieved [page 16, lines 8-12; Tables 1-2]. UV treated lettuce seedlings showed increased fresh weight, and also a greater resistance to the fungus [page 16, lines 15-19; Table 3]. Wargent provide a number of examples that show that plants exposed to UV-B light and then plants 24 hours after UV treatment had increased fresh weight, increase hardiness, increase crop yield and greater resistance to fungus (Examples 1-6; Tables 1-8].
Regarding the limitation “reducing the spread of the fungal disease from the first plant material to the second plant material”, it is unclear if the second plant was also exposed to the fungal infection (see 112(b) rejection above. It is well known in the art and taught by the cited references that treating plants with UV-B light increase fitness and decrease infection rates by fungal pathogens. Therefore, a plant treated with UV-B light would have fewer fungal pathogens and fewer pathogens available to infect adjacent plants. It would naturally follow that plants sown adjacent to plants with fewer pathogens would have a decrease number of symptoms of infection as compared to plants that have not been treated with UV-B light and exposed to fungal pathogens.
Regarding the limitation, “harvesting and rejecting a reduced number of crops with symptoms wherein the rejection is reduced by at least 5% as compared to a second/third plurality of plants that have not been administered light comprising UV-B, like the instant specification, examples and figures provided by Wargent require the step of harvesting crops and analyzing the severity of fungal infection, assessed by a rating scale, describing the number of plants that were displaying a particular severity of disease infection (which would include wilting, yellowing, discoloring, etc.) [page 16, Example 2, Table 3]. The Wargent results show that a reduced number of crops have symptoms of fungal disease following UV-B pre-treatment and therefore would not be rejected at harvest for fungal symptoms. Example 2, Table 3 shows that of the 16 plants exposed to UV light, nine of the plants showed no fungal infection, 3 shows first signs of infection, 3 were infected and 1 was severely infected. Of the 16 plants not exposed to UV light, 3 showed no fungal infection, 2 showed first signs of infection, 4 were infected and 7 were severely infected. Of the plants exposed to UV light, 9/16 or 56% of the plants were not infected while 7/16 or 43% of the plants shows signs of infection. Of the plants not exposed to UV light, 3/16 or 19% were not infected while 13/16 or 81% of the plants showed signs of infection. In the industry, the plants that showed signs of infection would be not be marketable and would be “rejected”. 43% of the plants exposed to UV-B in the example would be “rejected” while 81% of the plants not exposed to UV-B light would be rejected (which reads on wherein the rejection is reduced by at least 5% as compared to a second/third plurality of plant materials that have not been administered light comprising UV-B).
Although Wargent 2014 does not explicitly teach one of the well over a thousand species encompassed by claim 68-69 and 72, it would be obvious to employ the methods as taught by Wargent 2014 on another species of fungus and/or in Leotiomycetes (claimed members include Diplocarpon and Monilinia). One would have been motivated to use the methodology against another fungus that causes leaf spots, wilting, yellowing, discoloring or necrosis to reduce the number of crops with symptoms of disease. Wargent 2014 showed that using UV-B in the specified range resulted in a “greater resistance to the fungus”. One would have had a reasonable expectation of success given that UV-B light is known in the art and taught by Wargent 2014 to increase resistance to abiotic and biotic stresses (including fungal disease) in a wide variety of plant materials.
Regarding the limitation “wherein the harvesting occurs at least 3 months after sowing the plant material[s]”, this timeframe from seed to harvest is within the normal timeframe for harvesting lettuce, tomato, cucumber, broccoli, cannabis, strawberry or eggplant. If harvesting crop plants, such as those listed about, in order to obtain mature fruits and/or plant products, one would harvest them at maturity. Harvest times are known for the listed plants and are generally: 3 months for lettuce, 60-100 days for tomato, 50-70 days for cucumbers, 2-4 months for broccoli, 2-3 month for cannabis (flowering stage), 4-5 months for strawberries and 3-4 months for eggplant. It would naturally follow that harvest of a crop plant would be when the crop plant was producing the intended product.
Wargent 2014 does not explicitly teach the dose of UV-B in the range of about 0.1 kJ m-2h-1 to about 20 kJ m-2h-1 or about 1.2 kJ m-2h-1 to about 7 kJ m-2h-1, that is common for UV radiation as evidenced by the fact that normal sunshine provides such a dose of UV radiation. A UV index of 10 provides 15 kJ m-2h-1 of irradiation and this as well as anything below that is included in the claimed range. Furthermore, Wargent 2014 teaches that the preferred treatment regime can be modified, for example, to shorten the length of treatment but a higher intensity of UV irradiation may be used to provide a sufficient dosage during the treatment period.
Accordingly, claims 29, 52-60, 68-69 and 71-72 are made obvious over Wargent.
Claim(s) 51 and 74 are rejected under 35 U.S.C. 103 as being unpatentable over Wargent (WO/2015/137825; 17 September 2014-herein referred to as “Wargent 2014)) as applied to claims 29, 52-60, 68-69 and 72-73 above, and further in view of Wargent (US2016/0073599; 17 March 2016-herein referred to as Wargent 2016). Due to Applicant’s amendments of the claims, the rejection has been modified from the rejection as set forth in the Office action mailed 15 July 2025, as applied to claims 51, 71 and 74. Applicant’s arguments filed 15 December 2025 have been fully considered but they are not persuasive.
The claims are drawn to a method for reducing a fungal disease in a field of crops and improving crop yield, the method comprising: comprising administering UV-B to a first and second plant material in a range of about 280 nm and 310 nm at least 1 day prior to disease exposure, then sowing the plant material in the field, cultivating the plant material in the field, wherein the plant material are exposed to a fungal pathogen, and harvesting and rejecting a reduced number of crops with symptoms of disease, wherein the rejection is reduced by at least 5% as compared to fungal disease propagation in a second plant material that have not been administered light comprising UV-B, wherein the symptoms of disease include leaf spots, galls, cankers, wilting, yellowing, discoloring, dwarfing or necrosis, wherein the plant material comprises lettuce, tomato, cucumber, broccoli, cannabis, strawberry, or eggplant, wherein the harvesting occurs at least 3 months after sowing the plant material[s], and wherein the plant material is a seed. The claims are further drawn to a method for reducing a fungal disease comprising administering UV-B light to a seed for a duration of less than 1 hour.
The teachings of Wargent 2014 are discussed supra.
Wargent 2014 does not specifically teach where in the plant material is a seed or wherein the seed is administered a single dose of UV-B in a duration of less than 1 hour.
Wargent 2016 teaches a method of treating a seed for sowing for improving subsequent plant performance comprising the step of treating the seed for sowing with UV-B irradiation (entire document). Waren 2016 teaches that the harvestable crop material is selected from the group consisting of lettuce, beans, broccoli, cabbage, carrot, cauliflower, cucumber, melon, onion, peas, peppers, pumpkin, spinach, squash, sweetcorn, tomato, watermelon, alfalfa, canola, corn, cotton, sorghum, soybeans, sugarbeets and wheat [col. 7, lines 33-38]. Wargent 2016 teaches that flavonoids are an indicator or marker for heightened plant resilience to various abiotic and biotic stresses in a wide variety of plants (e.g. drought stress, high visible light stress, insect pest damage and fungal infection), improved plant performance, and increase crop yield and quality [col. 8, lines 31-36]. Wargent 2016 also state that it is possible that some or all of certain types of flavonoids are directly leading to the increased plant performance being observed follow UV-B seed treatment [col. 8, lines 39-43]. Wargent 2016 teach that compared to untreated samples, seeds treated with UV-B irradiation provide substantially improved biological outcomes linked with plant performance and also showed improved yield of harvestable crop material after 30 days [col. 4, lines 18-24]. Wargent 2016 teaches that UV-B radiation is specifically within the waveband of 320 nm to 280 nm (which reads on 280 nm and 310 nm) [col. 5, lines 55-56]. Wargent 2016 teach preliminary trials administering UV-B radiation for 40 minutes [which reads on less than an hour] produced good results [col. 6, lines 9-10].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the methodologies of Wargent 2014 and to use seeds as taught by Wargent 2016. Both Wargent 2016 and 2014 use similar methodologies using UV-B radiation within the waveband of 280 nm to 310 nm to achieve heightened plant resilience to various abiotic and biotic stresses (including fungal infections). One would have been motivated to use seeds because they are less cumbersome to expose to the UV-B irradiation and can speed up the process that results in heightened plant resilience to fungal infections which would contribute increased crop yield in the agricultural demand. Furthermore, it would avoid “the need for pesticides and chemical additives to improve plant resistance and performance [col. 4, lines 29-30.
Response to Applicants Arguments dated 29 April 2025
Applicants urge that Wargent 2014 is silent as to a method wherein the UV-B treatment results in reduced spread to plants not treated with UV-B. Applicant urge that when an untreated infected plant was placed by a UV-B treated plant (C-UV), the disease propagation and damage was far less. Applicant points to Fig. 43 as proof of these results. (Response 6-8)
These arguments have been carefully considered but are not deemed persuasive. It is well known in the art and taught by the cited references that treating plants with UV-B light increase fitness and decrease infection rates by fungal pathogens. Therefore, a plant treated with UV-B light would have fewer fungal pathogens and fewer pathogens available to infect adjacent plants. It would naturally follow that those plants sown adjacent to plants with fewer pathogens (e.g. UV-B treated plants) would have a decrease number of symptoms of infection as the pool of fungal pathogens is decreased. as compared to plants that have not been treated with UV-B light and exposed to fungal pathogens.
Figures 41-43 show the results of the experiment that addresses secondary Downy Mildew infections have reduced severity when spread between UV-B pretreated plants. Fungal inoculum was derived from either a UV-B treated plant or a plant that was not exposed to UV-B light. Fig. 43, the results depicted in this figure, in essence, show inoculating plants with two types of inoculums; a low-density inoculum (derived from a plant exposed to UV-B light) and a high-density inoculum (derived from a control plant not administered UV-B light). “Results indicated that receiving a reduced inoculum alone (UV-C) results in increased tolerance” [0223]. These results are not unexpected. One would expect that an inoculum containing more fungal pathogens (from the control plant) would result in a higher incidence of infection than an inoculum containing less fungal pathogens (from a plant exposed to UV-B light).
Furthermore, in response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., receiving a reduced inoculum alone results in increased tolerance) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Applicants do not define “exposed to a fungal disease”, As written, any exposure to any type or amount is encompassed by the claim language (see 112(b) rejection above).
8. Applicants urge that Wargent 2014 in view of Wargent 2016 does not remedy the deficiency.
These arguments have been carefully considered but are not deemed persuasive. The arguments against Wargent 2014 are addressed above.
Conclusion
No claim is allowed.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Examiner’s Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAREN M REDDEN whose telephone number is (571)270-0298. The examiner can normally be reached on 730-6 Monday-Thursday.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bratislav Stankovic can be reached on (571) 270-0305. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KAREN M REDDEN/Primary Examiner, Art Unit 1661