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, 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 02/24/2026 has been entered.
Claim Interpretation
The transitional term “comprising”, which is synonymous with “including,” “containing,” or “characterized by,” is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004).
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.
Claim 22 is 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. Amended claim 22 recites applying the combination fertilizer in an amount of 75 to 1,500 kg”. This Specification as originally filed provides support for applying the fertilizer in granular form in an amount of in the form of 75 to 1,500 kg/ha [pg. 7, lines 25-27]. However, the claims are directed to application of a liquid fertilizing composition (e.g. dissolved in water for application by fertigation or foliar application) with the Specification describing this type of application in amounts from 0.06 to 20 kg/ha [pg. 7, lines 22-24].
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 25 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.
In regard to claim 25, the first fertilizing composition consisting of 100% glyceric acid is described “in the form of a hydrosoluble powder, granulate or liquid”. The transitional phrase “consisting of” excludes any element, step, or ingredient not specified in the claim and it is unclear how 100% glyceric acid can be in the form of a powder or granulate because the organic compound is a colorless syrup (i.e. a liquid). The term is indefinite because the specification does not clearly redefine the term beyond its inherent chemical characteristics at room temperature.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 21 and 25 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hayashi et al. (US Patent Publication No. 2008/0139391 A1).
In regard to claims 21 and 25, Hayashi teaches a method of applying a combination fertilising composition (e.g. application of a fertilizer together with a plant activating agent) [para. 0065] comprising the steps of:
forming a combination fertilizing composition in the form of a hydrosoluble powder, granulate or liquid (e.g. any one of liquid, flowable, wettable powder, granule, dust formulation and tablet) [0045] where the combination fertilizing composition includes
forming a first composition consisting of glyceric acid (e.g. a plant activating agent) [0026] wherein the plant activating agent is a glycerol derivative [0038] selected from glyceric acid [0039], where the derivative is described as glyceric acid, one of skill in the art would interpret this to mean 100% glyceric acid, absent teaching otherwise; and
forming a second composition selected from nitrogen fertilizer, phosphorus fertilizer, potassium fertilizer, calcium fertilizer, micronutrients, boron fertilizer and combinations thereof [0062];
combining the first fertilizing composition and the second composition to form a combination fertilizing composition (e.g. application of a fertilizer together with a plant activating agent) [para. 0065];
dissolution in water of the combination fertilizing composition for application by fertigation or foliar application (e.g. water and/or solvent may be used) [0066]; and
applying the combination fertilizing composition by fertigation or foliar application (e.g. providing the fertilizer component together with irrigation-water) [0062].
Response to Arguments
Applicant's arguments filed 02/24/2026 have been fully considered but they are not persuasive. Applicant argues (pg. 5) Hayashi does not teach wherein the first fertilising composition is consisting of 100 % by weight glyceric acid because glyceric acid is used combination with additional fertilizing components. 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., application of a composition consisting of only 100% glyceric acid, not combined with additional fertilizing components) are not recited in the claims. 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). While the body of the claim employs the closed transitional phrase “consisting of” in reference to 100% glyceric acid, the preamble utilizes the open-ended term “comprising”. The use of “comprising” in the preamble allows for the presence of additional elements in the overall combination, even if one specific component is defined narrowly. See MPEP 2111.036. When viewed in this light, the term “consisting of” is exclusionary only to the extent that the prior art teaches a “first composition” as part of a combination.
Conclusion
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 March 10, 2026