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 was filed 02/25/2026.
Withdrawn Rejection
The rejection under 35 USC 112, second paragraph, is withdrawn in view of applicant’s amendment of claim 1.
Election/Restrictions
Newly submitted claim 25 is directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: It is directed to a method rather than the composition previously presented and prosecuted over several rounds.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 25 is withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
New Rejection
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-4, 15-17, 19-24 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The specification fails to define the type of alcohol used in the composition. Clarification is requested.
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.
Claims 1-4, 15-17, 19-24 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 claims fail to particularly point out the type of alcohol used in the composition. Clarification is requested.
Maintained Rejections
(modified to accommodate amendment of claim 1 to include claims 18-19)
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.
Claim(s) 1-4, 15-20 and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yamashita (US5549729, from IDS) and further in view of CN106348831 (‘831), Roach et al. (WO2017/040938), Verhagen (https://www.rhp.nl/en/focus-on-nutritional-elements-sodium-and-chloride, 2019), all in view of US20140208815, as evidenced by MCE (https://www.medchemexpress.com/DL-Lysine.html), and further in view of CN109988024.
Applicant’s claim:
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Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 1-4, Yamashita teaches composition for stimulating plant growth and improving plant resistance to stress which is water-soluble and comprises/can comprise: glycerin/glycerol (propane-1,2,3-triol) in amounts of 1-90% by weight (see Col. 31, Alternative concentration table), and vitamin b (e.g. in the forms of thiamine, pyridoxine, folic acid, nicotinic acid (niacin), biotin, pantothenic acid, cyanocobalamin, riboflavin) in amounts of ~0.08-0.80% by weight, citrate, specifically iron citrate (ferrous and ferric citrate) in amounts of 0.05-2.00% (as they call this a source of iron (trace element) and is used in Table 1A in amounts of 0.05-2.00%), trace elements (including iron), and carboxylic acids, specifically citric acid in amounts of 0.005-0.5% as a complexing agent, or from 0.000001-1000 gr/ gal mix as a carbon energy source which reads on the claimed range of 0.5-2.5% (See table 1 and table 1A), water which they use to form the stock solution with the energy sources, e.g. glycerin, which carries the composition (see example 1 for instance, Col 4, ln. 52-59; Table 1), and at least one amino acid and wherein the pH of the formulation is from 5-7.5 (See entire document; Col. 6, ln. 40-Col. 9, ln. 26, inclusive; Col. 11, ln. 1-4 (vitamin b); Table 1A (amounts of vitamins, citric acid, iron (e.g. form of iron citrate); Table 1 (amounts of various agents), Col. 7, ln. 23-25, Alternative concentration tables, etc.).
Regarding claims 1 and 15, Yamashita teaches wherein the amino acid(s) are macronutrient sources of N, and they specifically mention/disclose lysine, MCE evidences that lysine is sold as D, L, and DL forms (See https://www.medchemexpress.com/DL-Lysine.html), as Yamashita has not specified their lysine, it is assumed to be D and L as a mixture as they do not specify whether it is enantiomerically pure and as such reads on claim 15 (See Col. 12, ln. ~38-50; Col. 6, ~ ln. 40-52).
Regarding claim 18 and 19, Yamashita does teach wherein their composition can comprise humic acid which can be present as complexing agent for the micronutrients or an organic acid for carbon energy in amounts of for instance as complexing agents 0.000001-10 parts by weight which reads on the claimed 0.1-5% by volume (see amounts for katy-j: alternative sources for katy-j include/are humic acid (See Col. 24, In. ~28-43)).
Regarding claims 20 and 22, Yamashita teaches mixing/diluting their composition with water, and as they do not specify a temperature it is room temperature e.g. ~20-25 °C which reads on the claimed range and further they teach wherein the composition can be used via irrigation systems, e.g. drip systems/drip irrigation onto a plant medium which reads on soil substrate and/or natural or artificial soils that contain plants, which also reads on plants and as the formulation is in the irrigation system/delivered by the irrigation system and can therefore be/is received by at least one of these as is claimed (See Example 10 for instance; Col. 6, ln. 34-37).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Regarding claims 1-4, 15-17, 20, and 22, specifically claims 1 and 16-17, Yamashita does not teach wherein their composition can comprise pyruvate (salt of pyruvic acid) or malate (salt of malic acid) in the claimed amounts. However, they do teach wherein their composition can comprise pyruvic acid or malic acid as organic acids for providing carbon energy to the plants and wherein these carbon skeleton energy agents can be present in the composition in amounts of 0.000001 to 80% (see table 1, they use molasses but teach that this can be the amount of Carbon skeletons for energy (CSEs)) used which reads on the claimed amounts of pyruvate and malate, citrate, and citric acid claimed (0.2-2.8% by volume of pyruvate, 0.05 to 2.5% of citrate and 0.5-2.5% of citric acid, and 0.1 to 3.5% of malate) (See sections cited above).
Yamashita also does not teach wherein the pyruvate is sodium and potassium pyruvate in the claimed amounts or wherein the ratio of the sodium pyruvate to the potassium pyruvate is 1:3. However, this deficiency in Yamashita is addressed by ‘831, Roach and Verhagen.
‘831 teaches that it was known to use malate salts such as potassium malate in environmentally friendly fertilizers (See claim 10).
Roach teaches that it was known to use pyruvate salts and malate salts of potassium, which would function as a carbon energy source for plants as per Yamashita, and as a source of potassium when in the form of potassium pyruvate which is a necessary macronutrient for plants (needed in larger amounts) and can be applied by the claimed irrigation modes (see [009]; [0013, ln 1-2, ln. 14-15]). Sodium is not considered a necessary nutrient for plants but small amounts are known to have a positive effect on water management of the plant (see Verhagen what is the function of sodium and chloride section). Thus, it would be obvious to one of ordinary skill in the art to provide the pyruvate carbon energy source of plants in the amounts taught by Yamashita and as a ratio of 3:1 of the potassium to the sodium salts of pyruvate because as taught by Roach the salts of these organic acids provide potassium which is a macronutrient that is necessary in larger amounts for plant growth and health, and sodium which is only useful to plants in small amounts as larger amounts are harmful as is taught by Verhagen and cited above. Thus, it would be obvious to optimize the amounts of sodium and potassium pyruvate to read on the claimed ratios when providing a compositions/fertilizer for improving plant health/growth. "[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 claims 18-19, The combined references, specifically Yamashita, do not specifically teach wherein their humic acid is obtained by alkaline hydrolysis from leonardite or brown coal or wherein the particle size is from 100 nanometers to 20 microns. However, this deficiency in the combined references is addressed by CN109988024. CN109988024 teaches it was known to form humic acid via alkaline hydrolysis from brown coal and to then grind the particles to 15 microns, or grind the particles to less than 5 microns and wherein the humic acid is dispersed in water/mixed with water and glycerin, etc. for grinding, etc. and is applied to plants via irrigation water(Example 1; (1)-(3) in machine English translation; claims).
Regarding claims 1-4, 15-17, 20, and 22, Yamashita does not teach wherein the composition is formed from/as a plurality of particles wherein each particle has a size of less than or equal to 100 microns. However, this deficiency in Yamashita is addressed by US20140208815.
US20140208815 teaches that it was known to form fertilizer compositions as a plurality of particles, comprising particles wherein the particle size of the particles is less than or equal to 100 microns as claimed, specifically wherein the particles are nanosized and have improved uptake/absorption by the crops (See abstract; [0035]; [0078]). US20140208815 teaches that this particle size is 100 nm or less (See abstract; [0035]).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious for one of ordinary skill in the art to combine the claimed agents in the claimed amounts into a composition for stimulating growth and phytomass of Cannabaceae family plants, etc. because as discussed above each and every component of applicant’s composition was known in the art to be used to improve plant growth and or health in amounts which read on or overlap with the instantly claimed amounts as is taught by Yamashita, ‘831, Roach and Verhagen and it is known, that it is prima facie obvious to combine known agents for improving the health and growth of plants into a new composition for improving the health and growth of plants because the idea of combining them flows logically from their having been individually taught in the prior art.
It also would have been obvious for one of ordinary skill in the art to optimize the amounts of each of the composition components, e.g. citrate, malate, pyruvate, vitamin b, glycerin, citric acid, iron citrate, etc. that are instantly claimed to the ranges instantly claimed because the combined prior art as discussed above teaches ranges which encompass these ranges are useful for formulating compositions for improving plant health and growth and it was known in the art to optimize the amounts/concentrations of actives in a given formulation for improving plant health and growth dependent on the soil conditions, plant being grown etc. as is taught by Xu. Further, "[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).
Finally, it would have been obvious for one of ordinary skill in the art to formulate the water-soluble fertilizer composition of Yamashita and the combined references as a plurality of particles having the claimed size because this particle size is absorbable/exhibits increased absorption/uptake by plants as is taught by US20140208815. It also would have been obvious to formulate the composition to have the claimed particle sizes because surface area of smaller particles increases the rate/speed of dissolving of the particles and increases the particle absorption uptake by plants, and as such it would be obvious to formulate the claimed ingredients to have the claimed particle sizes in order to improve their solubility and uptake by plants because it was already known to form fertilizer particles of the claimed size in order to increase uptake and solubility. Further it would be obvious to formulate the fertilizer composition of Yamashita as a plurality of particles because by formulating the composition in this format will allow for increased storage stability and storage time that the compositions can be stored as the particles can be dissolved in water later and as needed for spraying on plants, etc. and would not undergo freeze-thaw cycles that the compositions formulated as solutions in water could/would.
Further Regarding claims 18-19, The combined references, specifically Yamashita, do not specifically teach wherein their humic acid is obtained by alkaline hydrolysis from leonardite or brown coal or wherein the particle size is from 100 nanometers to 20 microns. However, this deficiency in the combined references is addressed by CN109988024. CN109988024 teaches it was known to form humic acid via alkaline hydrolysis from brown coal and to then grind the particles to 15 microns, or grind the particles to less than 5 microns and wherein the humic acid is dispersed in water/mixed with water and glycerin, etc. for grinding, etc. and is applied to plants via irrigation water(Example 1; (1)-(3) in machine English translation; claims).
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.
Claim 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yamashita (US5549729, from IDS), CN106348831 (‘831), Roach et al. (WO2017/040938), Verhagen (https://www.rhp.nl/en/focus-on-nutritional-elements-sodium-and-chloride, 2019), US20140208815 and as evidenced by MCE (https://www.medchemexpress.com/DL-Lysine.html), further in view of CN109988024 ,as applied to claims 1-4, 15-20, and 22 above, and further in view of Xu et al. , (Nature Research Scientific Reports¸2020, 10, 1033).
Applicants claim:
--The composition according to claim 1, wherein the composition is diluted with water in a proportion of about one part composition to 1000 parts of water.
Determination of the scope and content of the prior art
(MPEP 2141.01)
The combined references together teach the composition of claims 1-4, 15-17, 20 and 22 as discussed above an incorporated herein.
Regarding claim 21, Yamashita teaches wherein their composition can be diluted with water to an end use concentration of the carbon skeleton energy component of 2.5% which is a greater than 10-fold dilution (Col. 6, ln. 37-40).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)/ Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Regarding claim 21, The combined references together teach wherein their composition can be diluted with water to an end use concentration of the carbon skeleton energy component of 2.5% which is a greater than 10-fold dilution (Yamashita) but is not 100- or even 1000-fold dilution as is instantly claimed. However, this deficiency in the combined references is addressed by Xu.
Xu teaches that it was known that different plants have different nutritional requirements and therefore require different concentrations of nutrients, etc. Thus, it would be obvious to dilute the composition of the combined references to the claimed concentrations when used in plants which need much less fertilization/nutrients, because as Xu teaches different plants require different concentrations of nutrients and as such it would be obvious to optimize the dilution of the formulation of the combined references to provide the most effective use concentrations of the known actives for improving plant growth/health (See Xu: see first paragraph discussion section).
Claim 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yamashita (US5549729, from IDS) and further in view of CN106348831 (‘831), Roach et al. (WO2017/040938), Verhagen (https://www.rhp.nl/en/focus-on-nutritional-elements-sodium-and-chloride, 2019), US20140208815, and as evidenced by MCE (https://www.medchemexpress.com/DL-Lysine.html), further in view of CN109988024,as applied to claims 1-4, 15-20, and 22 above and further in view of IPNI (http://www.ipni.net/publication/pnt-na.nsf/0/013F96E7280A696985257CD6006FB98F/$FILE/PNT-2010-Fall-02.pdf) and Algoplus (https://web.archive.org/web/20161230194254/http://www.algoplus.net/Downloads/PlantpHpreferencelist.pdf).
Applicant’s claim:
-- The composition according to claim 1, wherein the pH of the composition is from 8.4 to 10.3.
Determination of the scope and content of the prior art
(MPEP 2141.01)
The combined references together teach the composition of claims 1-4, 15-20, and 22 as discussed above and incorporated herein.
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
The combined references do not teach wherein the pH is from 8.4-10.3. However, this deficiency in the combined references is addressed by IPNI and Algoplus.
While together the combined references teach that a pH of 5-7.5 is important (Yamashita) this is likely because this is the pH at which a majority of plants thrive as most nutrients are optimally available at this pH as is evidenced by IPNI (See second paragraph).
However, as is taught by Algoplus some plants thrive in alkaline conditions of pH >8, e.g. lamiastrum (up to pH 8.5), potentilla (up to 8.5), corokia (up to 8.5), empress tree (up to 8.5), honeysuckle shrub (up to 8.5), agapanthus (up to 8.5), paprika (up to 8.5), etc. (See cited entries) and as such it would be obvious to adjust the pH of plant nutrient solutions for these plants to be in the pH range at which these plants thrive so that the environment/pH where the plant is growing is not drastically changed.
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have optimized the pH of the combined references, specifically Yamashita, to be the claimed 8.4-10.3, specifically 8.4 to 8.5 because it was known that some plants thrive in alkaline conditions and as such one of ordinary skill in the art would not want to add compositions which would drastically change the pH of the growing environment and as such for plants which thrive in alkaline conditions such as those taught by Algoplus it would have been obvious to change the pH of the formulation of the combined references so that the formulation was more suitable for these types of plants and would not affect their growth and health by changing the pH of their environment.
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.
Claim 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yamashita (US5549729, from IDS) and further in view of CN106348831 (‘831), Roach et al. (WO2017/040938), Verhagen (https://www.rhp.nl/en/focus-on-nutritional-elements-sodium-and-chloride, 2019), US20140208815, and as evidenced by MCE (https://www.medchemexpress.com/DL-Lysine.html), further in view CN109988024, as applied to claims 1-4, 15-20, and 22 above and further in view of Gabrielson et al. (US20150197460).
Applicants claim:
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Determination of the scope and content of the prior art
(MPEP 2141.01)
The combined references together teach the composition of claims 1-4, 15-20, and 22 as discussed above and incorporated herein.
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
The combined references do not teach wherein the composition comprises propane-1,2-diol/propylene glycol as the solvent/solvent compound. However, this deficiency in the combined references is addressed by Gabrielson.
Gabrielson teaches that it was known to use propylene glycol to solubilize hard to solubilize active agents in granule fertilizer compositions comprising trace elements (e.g. sulfur, iron, zinc, manganese, etc. ([0023]; [0038]; [0027]) so that the actives will solubilize when the fertilizer granules e.g. NBPT, etc. are contacted with water/mixed with water ([0017-0018]; [0022]; [0025]; [0005]; [0008]; abstract; claims; [0038]; [0032-0033]; [0035]; ). Gabrielson also teaches wherein the propylene glycol is used in the compositions to improve the solubility of the active agents in the granules (e.g. when in dissolved in water/ or when contacted with water in the environment after application) and they claim concentrations of the glycol of 0.014 to about 0.2% by weight based on the total weight of the fertilizer composition but they further teach wherein these additional solvents can be used depending on formulation type in amounts of up to 99% by weight ([0021]), which read on the claimed amounts of about 0.1 to about 7.6% by volume that are instantly claimed.
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to add propylene glycol to the composition taught by the combined references in order to develop the instantly claimed fertilizer composition because Gabrielson teaches using propylene glycol in amounts which overlap those instantly claimed and it would be obvious to optimize the amounts of glycerin and propylene glycol (i.e. applicant’s propane-1,2,3-triol and propane-1,2-diol respectively) in order to afford the most effective fertilizing composition which is stable at cold temperatures (both glycerin and polyethylene glycol are known anti-freeze agents (as evidenced by US20160262386 [0038]) and which effectively solubilize the active agents when combined with water because Gabrielson teaches that propylene glycol is a known agrochemically acceptable solvent that is also useful for solubilizing various known fertilizing agents. Further it is known to combine agents known to be used in fertilizers in order to form a new composition that is also to be used for plant fertilization especially since there does not appear to be any criticality to applicant’s claimed ranges as it is known, "[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).
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.
Response to Arguments/Remarks
Applicants amendments to the claims have prompted the new grounds of rejection under 112(b) presented herein. Applicant’s new claim(s) has prompted the new grounds of rejection presented herein. Applicant’s arguments were considered and insofar as they pertain to the revised grounds of rejection are addressed herein.
Firstly, applicants argue that the claimed amounts of the claimed agents with the claimed pH and as a collection of particles having the claimed diameter is not taught by by the prior art. The examiner firstly points out that a composition of Cannabaceae family comprising as applicants argue is an incorrect reading of applicants claim 1. Nothing in the composition requires cannabaceae family plants to be part of the composition. Applicant’s claim is to a composition for stimulating the growth of phytomass of Cannabaceae family and plant resistance of Cannabaceae family…containing a water-soluble composition comprising. The for stimulating the growth of phytomass of Cannabaceae family and plant resistance of Cannabaceae family… is merely and intended use of the composition and is not afforded patentable weight because as the courts have previously determined, “If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction.” Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020) (The court found that the preamble in one patent’s claim is limiting but is not in a related patent); Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See also Rowe v. Dror, 112 F.3d 473, 478, 42 USPQ2d 1550, 1553 (Fed. Cir. 1997) (“where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation”).
Secondly, as discussed herein solvent compound of alcohol is unclear do applicant’s mean the solvent compound is an alcohol or do applicant’s mean the solvent compound solubilizes/is a solvent for alcohols? Additionally, as discussed above it is known to combine actives known in the art for improving plant health together to form a new composition for improving plant health since all of the agents are known to already be used in the art for this purpose. Further, the examiner notes that nothing in the instant claims exclude other compositions or other components or solvents being used in applicant’s composition as applicant’s claims use comprising language which is open-ended and therefore excludes nothing.
Applicants also argue that Yamashita has two part mixes in their composition and that glycerol in the in part II mix which is used to feed the cultures and applicants argue that simply using a first composition to grow cultures and blending the cultures with glycerol as in Yamashita is not a composition that is a plurality of particles. The examiner respectfully disagrees firstly because the rejection is not solely over Yamashita and it is improper to argue the references singly when they are used in combination as in the instant rejection which uses secondary references such as US20140208815 to teach that it was known to formulate fertilizer compositions are particles having the claimed size/diameter, specifically nanoparticles which exhibit increased uptake by plants and the increased surface area would improve dissolution in water. Secondly, Yamashita teaches that their compositions can be formulated into a powdered product and that they recommend the powdered product for introduction into the planting water (see col. 37, ln. 4-13). Thus, the examiner maintains that it would be obvious to formulate the claimed composition as taught by Yamashita and the combined references as a plurality of particles because as is taught by US20140208815 it was known to formulate fertilizer/plant nutrient compositions a plurality of particles, comprising particles wherein the particle size of the particles is less than or equal to 100 microns as claimed, specifically US20140208815 teaches that when the particles are nanosized they have improved uptake/absorption by the crops. Thus, it would be obvious to formulate other known fertilizer compositions such as that of Yamashita to have the claimed particle sizes because the increased surface area of the nanoparticles will increase dissolution of the particles in water and increase their uptake by plants. Thus, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicants further argue that while Yamashita describes the use of molasses, the molasses used cannot be seen to disclose or to suggest at least, “malate in an amount of from 0.1 to 3.5% by volume of the total composition, …formed as a plurality of particles” for stimulating the growth of phytomass of Cannabaceae. Again the for stimulating the growth of phytomass of Cannabaceae… is an intended use of the composition and is not afforded patentable weight because the claim is to a composition which is complete in the body of the claim with the claimed components. The examiner respectfully disagrees because as discussed above Yamashita teaches compositions for improving plant growth/health which comprise glycerin/glycerol (propane-1,2,3-triol) in amounts of 1-90% by weight (see Col. 31, Alternative concentration table), and vitamin b (e.g. in the forms of thiamine, pyridoxine, folic acid, nicotinic acid (niacin), biotin, pantothenic acid, cyanocobalamin, riboflavin) in amounts of ~0.08-0.80% by weight, citrate, specifically iron citrate (ferrous and ferric citrate) in amounts of 0.05-2.00% (as they call this a source of iron (trace element) and is used in Table 1A in amounts of 0.05-2.00%), trace elements (including iron), and carboxylic acids, specifically citric acid in amounts of 0.005-0.5% as a complexing agent, or from 0.000001-1000 gr/ gal mix as a carbon energy source which reads on the claimed range of 0.5-2.5% (See table 1 and table 1A), water which they use to form the stock solution with the energy sources, e.g. glycerin, which carries the composition (see example 1 for instance, Col 4, ln. 52-59; Table 1), and at least one amino acid and wherein the pH of the formulation is from 5-7.5 (See entire document; Col. 6, ln. 40-Col. 9, ln. 26, inclusive; Col. 11, ln. 1-4 (vitamin b); Table 1A (amounts of vitamins, citric acid, iron (e.g. form of iron citrate); Table 1 (amounts of various agents), Col. 7, ln. 23-25, Alternative concentration tables, etc.). As discussed above, Yamashita does not teach wherein their composition can comprise pyruvate (salt of pyruvic acid) or malate (salt of malic acid) in the claimed amounts. However, they do teach wherein their composition can comprise pyruvic acid or malic acid as organic acids for providing carbon energy to the plants and wherein these carbon skeleton energy agents can be present in the composition in amounts of 0.000001 to 80% (see table 1, they use molasses but teach that this can be the amount of Carbon skeletons for energy (CSEs)) used which reads on the claimed amounts of pyruvate and malate, citrate, and citric acid claimed (0.2-2.8% by volume of pyruvate, 0.05 to 2.5% of citrate and 0.5-2.5% of citric acid, and 0.1 to 3.5% of malate) (See sections cited above). Thus, contrary to applicants arguments the carbon skeletons for energy are not limited to molasses that has been diluted and can be pyruvic acid and/or malic acid which they expressly disclose can be used for carbon energy for the plants in amounts of from 0.000001 to 80% as Yamashita teaches that these amounts are of the carbon skeletons for energy (CSE components) which reads on the claimed amounts of pyruvate and malate, citrate, and citric acid claimed (0.2-2.8% by volume of pyruvate, 0.05 to 2.5% of citrate and 0.5-2.5% of citric acid, and 0.1 to 3.5% of malate). Because as expressly discussed in Yamashita at Col. 9, ln. 20-26 (which is cited above) the CSE components are specifically disclosed to be/include: organic acids--glucuronic acid, a-ketoglutaric acid, galactonic acid, glucaric acid, gluconic acid, pyruvic acid, polygalacturonic acid, saccharic acid, citric acid, succinic acid, malic acid, oxaloacetic acid, aspartic acid, phosphoglyceric acid, fulvic acid, ulmic acid, humic acid, and the instant composition does not exclude other components, including other CSEs of Yamashita from being present in the claimed composition as the claims use comprising language and as such are completely open-ended. Thus, contrary to applicants arguments the compositions of Yamashita are not limited to diluted molasses formulations.
Applicants then again argue the intended use of the composition to for stimulating the growth of phytomass of Cannabaceae family and plant resistance of Cannabaceae family to stress factors. This remains an intended use for the reasons previously discussed above and is not being afforded patentable weight. The claims are to a composition, which can be used for anything and remains the same composition which is instantly claimed, e.g. water is water whether it is being used for plants or is being used as a beverage it remains the same composition. The claims are not directed to a method of stimulating the growth of phytomass of Cannabaceae family and plant resistance of Cannabaceae family to stress factors where the intended function (i.e. stimulating….) is given patentable weight.
Conclusion
No claims are allowed.
Correspondence
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/CARLOS A AZPURU/Primary Examiner, Art Unit 1617 caz