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 .
Detailed Action
Status of Application
1. Receipt of the Request for Continued Examination (RCE) under 37 C.F.R. 1.114, the Amendment and Applicants’ Arguments/Remarks, all filed 24 February 2026 are acknowledged.
Claims 10-17, 22-23, and 26-32 are currently pending. Claims 1-9, 18-21, and 24-25 have been cancelled. Claims 10-11 and 26-31 have been amended. Claims 10-17, 22-23, and 26-32 are examined on the merits within.
Continued Examination Under 37 C.F.R. 1.114
2. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 24 February 2026 has been entered.
Modified Rejections
Claim Rejections – 35 U.S.C. 103
3. 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.
4. Claim(s) 10-11, 14-15, 22-23, and 26-32 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sceats (U.S. Patent Application Publication No. 2017/0035053).
Regarding instant claims 10-11, 22, and 26-32, Sceats teaches manufacture for use as a biocide, from caustic calcined carbonate powder, preferably magnesite, dolomite, or hydromagnesite, products with high surface area, high porosity and a high degree of calcination. The oxides may be used as a powder, granules, or formulated into a slurry as a spray, emulsion, foam or fog. See abstract. The particle size is preferably such that the powders are not breathable, and cannot diffuse through the skin. Such particles are on the scale of 10-100 microns, and are easily handled and processed by users. See paragraph [0023]. The powder or slurry product has preferably a shelf lifetime of several months, and can be used as a feedstock for production of (a) a foliar spray for agricultural application. See paragraph [0042]. Hydrating the powder produces a stable hydroxide slurry with a high solids fraction, preferably in the range of 50-60%. The desirable property of the slurry is that it does not settle rapidly, exhibits minimal syneresis, and has a low viscosity for dosing into a spraying system for many applications. See paragraph [0037]. The surface area of the MgO powder was measured to have a BET surface area of 190 m2/gm, while that of the dried magnesium hydroxide slurry was 20 m2/gm. See paragraph [0065].
It would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to increase the magnesium hydroxide component of the magnesium product so that it does not settle rapidly, exhibits minimal syneresis, and has a low viscosity for dosing into a spraying system for many applications. It would have been obvious to modify the size and specific surface area of the particles such that the powders are not breathable, and cannot diffuse through the skin. It would have been well within the purview of the skilled artisan to modify the amounts of each component in the formulation to optimize the effect.
5. Claim(s) 12-13 and 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sceats (U.S. Patent Application Publication No. 2017/0035053) as applied to claims 10-11, 14-15, 22-23, and 26-32 above and further in view of Thompson (Postharvest Biology and Technology of Tropical and Subtropical Fruits: Acai to Citrus, 2011).
Sceats teaches for preliminary crop trials, a number of crops such as grapes, avocados and bananas exhibiting fungal outbreaks were sprayed with the diluted slurry, and the biocidal impact measured by the healthiness of the crop, especially with regard to the presence of fungi, compared to a field that was not sprayed. On inspection, after 7 days, the fungi were not observable on the sprayed area. See paragraph [0067].
Sceats does not teach the specific fungal pathogen Mycosphaerella fijiensis or black sigatoka of banana.
Thompson teaches that Black Sigatoka is also a leaf spot or leaf streak disease caused by infection with Mycosphaerella fijiensis, which is endemic to most banana-exporting countries. It does not infect the fruit but damages or kills leaves. This reduces the photosynthetic area of the plant, which can lead to a reduction in yield. See first paragraph.
It would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to use the foliar application of magnesium hydroxide of Sceats to treat black sigatoka caused by Mycosphaerella fijiensis because Sceats teaches that magnesium is adsorbed into the plant and promotes greater photosynthesis. See paragraph [0067]. One would have been motivated with a reasonable expectation of success because Sceats successfully treats fungal disease in bananas through promoting greater photosynthesis and black sigatoka is caused by Mycosphaerella fijiensis which is known to reduce photosynthesis.
Response to Arguments
Applicants’ arguments filed 24 February 2026 have been fully considered but they are not persuasive.
6. Applicants argued, “The product according to Sceats has a purity content of 84% and a specific surface area greater than 150 m2/g which has a much lower percentage of fungicidal efficacy than the instant invention. One cannot deduce bactericidal properties from a biocide with reasonable chances of success. A prior art product according to the invention has fungicidal properties without having bactericidal properties. Sceats teaches away from biocidal properties having a specific surface area of less than 500 m2/g. One would not have been prompted to reduce the specific surface area of magnesium hydroxide particles in order to increase its fungicidal activity.”
In response to applicants’ arguments, with regards to the purity content, Examiner originally stated “It would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to increase the magnesium hydroxide component of the magnesium product so that it does not settle rapidly, exhibits minimal syneresis, and has a low viscosity for dosing into a spraying system for many applications.” In addition, it would have been obvious to increase the solids content to provide more active ingredient and higher effect due to less impurities available to dilute the concentration of active. Thus motivation is provided to increase the magnesium hydroxide content. The surface area of the MgO powder was measured to have a BET surface area of 190 m2/gm, while that of the dried magnesium hydroxide slurry was 20 m2/g which reads on 10 m2/g to 100m2/g. Since the claims are directed to a magnesium product containing less than 1% by mass of free water, the BET surface area meeting this limitation would be that of the dried magnesium hydroxide wherein drying removes water. Thus the surface area falls within the claimed range and no motivation is needed to modify this component. Sceats also teaches particles on the scale of 10-100 microns which overlaps the range of 1 to 10 microns. Sceats teaches the particle size and specific surface area, while providing motivation to increase the amount of magnesium hydroxide. Thus the formulation should function in the same manner, i.e., provide fungicidal treatment of a crop, since it is applied in the same context as instantly claimed. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Thus this rejection is maintained.
Correspondence
7. No claims are allowed at this time.
8. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSICA WORSHAM whose telephone number is (571)270-7434. The examiner can normally be reached Monday-Friday (8-5).
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/JESSICA WORSHAM/Primary Examiner, Art Unit 1615