DETAILED ACTION
Receipt is acknowledged of applicant’s Amendment/Remarks filed 8/21/2025.
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 .
Status of the Claims
Claims 13 and 18 have been amended. Claims 12, 15-17 and 20-25 are cancelled. No claims are newly added. Accordingly, claims 1-11, 13, 14, 18, 19, 26 and 27 remain pending in the application. Claims 1-11, 26 and 27 stand withdrawn from further consideration, with traverse. Claims 13, 14, 18 and 19 are currently under examination.
Withdrawn Rejections
Applicant’s amendment renders the rejection of claims 13, 14, 16 and 19 under 35 USC 103 over Sanz-Gomez moot. Specifically, Sanz-Gomez is silent to the newly amended limitation, “wherein the superabsorbent polymer is starch-g-poly(2-propenamide-co-2-propanoic acid), potassium salt”. Thus, said rejection has been withdrawn.
Applicant’s amendment renders the rejection of claim 17 under 35 USC 103 over Sanz-Gomez in view of Orwick moot. Specifically, the claim has been cancelled. Thus, said rejection has been withdrawn.
Applicant’s amendment renders the rejection of claims 17 and 18 under 35 USC 103 over Sanz-Gomez in view of Banasihan moot. Specifically, claim 17 has been cancelled and the references are silent to the newly amended limitation, “wherein the superabsorbent polymer is starch-g-poly(2-propenamide-co-2-propanoic acid), potassium salt”. Thus, said rejection has been withdrawn.
Maintained/Modified Rejections
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 13, 14 and 19 stand rejected under 35 U.S.C. 103 as being unpatentable over Sanz-Gomez et al. (WO 2016/113727 A2, Jul. 21, 2016, hereafter as “Sanz-Gomez”), Savich (USPN 7,607,259 B2, Oct. 27, 2009, hereafter as “Savich”) and SWAL Product Manual (see PTO-892).
The instant claims are drawn to a method of increasing the sugar content of a plant, said method comprising treating the apply super absorbent polymer in combination with at least one sugar enhancing agent to the soil between 0 to 30 days of sowing, wherein the superabsorbent polymer is starch-g-poly(2-propenamide-co-2-propanoic acid), potassium salt, and wherein the at least one sugar enhancing agent is selected from a group consisting of imazapyr, imazethapyr, glyphosate, and combinations thereof; and a cane juice obtained therefrom.
Regarding instant claims 13 and 14, Sanz-Gomez teaches the use of superabsorbent polymers (SAPs) for improving plant health via alteration of gene expression (abstract). The use comprises the treatment, cultivation and/or regulation of the plant with an SAP (page 2, lines 15-22; page 4, lines 18-32; claims 1 and 11). Sanz-Gomez also teaches starch-based SAPs (page 21, lines 19-30). It is noted that “plant” is defined by Sanz-Gomez to include all parts of a plant such as germinating seeds, emerging seedlings, herbaceous vegetation as well as established woody plants including all belowground portions (such as the roots) and above-ground portions (page 25, lines 7-14). The plant may be selected to be sugar cane and the improvement of plant health may include increasing sugar content (page 18, lines 36-40; page 26, lines 13-15; claims 4 and 9). The use of SAPs as carriers for pesticides is acknowledged as common general knowledge in the art (page 1, lines 14-17), and use of the present SAP in combination with fertilizer application is also taught (page 24, lines 36-40). Sanz-Gomez also teaches the superabsorbent polymer is applied to the soil before the seed is brought to the soil which implies 0 days (paragraph bridging pages 24-25) and Sanz-Gomez teaches sowing a seed 26 (18+8) days prior to a superabsorbent polymer is added to the substrate, e.g., soil (page 35, lines 9-26).
Sanz-Gomez is silent to the particular SAP, starch-g-poly(2-propenamide-co-2-propanoic acid, potassium salt).
Savich teaches applying said polymer to plants including crop plants (claim 1; page 4, line 42; col. 6, line 22). Savich teaches applying the SAP directly into the soil with the crop (col. 6, lines 19-26). Savich also generally teaches applying SAPs to soil or other plant-growing media in agricultural settings have resulted in earlier seed germination and/or blooming, decreased irrigation requirements, increased propagation, increased crop growth and production, decreased soil crusting, increased root development, stronger/heartier plants, plants less susceptible to disease, increased yield and decreased time of emergence (col. 1, lines 58-67). Savich also teaches that starch graft copolymers may be used in increasing the water holding capacity of soil (col. 2, lines 9-12).
The SWAL Product Manual teaches the application of Zeba® (starch-g-poly(2-propenamide-co-2-propanoic acid, potassium salt) increases soil moisture content and retention, increases plant quality and yields, and that the efficient use of water and nutrients directly influences the increased yield (page 4).
The references teach applying SAPs to plants to improve plant health, thus, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the particular SAP or the particular starch-based SAP, starch-g-poly(2-propenamide-co-2-propanoic acid, potassium salt in the invention of Sanz-Gomez as suggested by Savich/The SWAL Product Manual with a reasonable expectation of success. A skilled artisan would have been motivated to do so because Sanz-Gomez generally teaches SAPs and starch-based SAPs can be used for improving plant health by changing gene expression in a plant including increasing yield, increasing sugar content, etc., Savich teaches starch based SAPs are effective in increasing water holding capacity in soil and application of the particular starch based SAP, (starch-g-poly(2-propenamide-co-2-propanoic acid, potassium salt)) to a crop plant, and SWAL Product Manual teaches Zeba® (starch-g-poly(2-propenamide-co-2-propanoic acid, potassium salt)) increases soil moisture content and retention, increases plant quality and yields, and that the efficient use of water and nutrients directly influences the increased yield.
Sanz-Gomez is silent to applying a sugar enhancing agent to the soil, wherein the sugar enhancing agent is selected from the group consisting of imazapyr, imazethapyr, glyphosate, and combinations thereof.
As discussed above, Savich teaches applying the SAP directly into the soil with the crop (col. 6, lines 19-26). Savich further teaches the particular compound, glyphosate, in combination with an SAP (col. 7, line 57).
It would have also been prima facie obvious to one of ordinary skill in the art before the effective filing date of the invention to further include glyphosate in the starch-g-poly(2-propenamide-co-2-propanoic acid, potassium salt) SAP and apply the combination directly to the soil as suggested by Savich with a reasonable expectation of success because Savich teaches the addition of glyphosate provides an herbicidal effect.
Regarding instant claim 19, the references, as discussed above, teaches applying an SAP such as starch-g-poly(2-propenamide-co-2-propanoic acid, potassium salt) to a plant such as a sugar cane plant and that application of an SAP can yield an increase in sugar content. While the references do not explicitly teach a cane juice having up to a 10-100% increase in expected sugar recovery, the combined teachings suggest an increase in sugar content in a plant such as a sugar cane plant. It is noted that a sugar cane plant necessarily contains cane juice. MPEP 2112.01(I) states,
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). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product.
In this case, a prima facie case has been established because the references suggest the identical or substantially identical method of making the claimed product, that is, treating a sugarcane plant with starch-g-poly(2-propenamide-co-2-propanoic acid, potassium salt). One skilled in the art would reasonably expect that the identical or substantially identical method of making the claimed product would yield the same product possessing the same characteristics including a 10-100% increase in expected sugar recovery. It is Applicant’s burden to show that the prior art product does not necessarily possess the characteristics of the claimed product.
Thus, the combined teachings of Sanz-Gomez, Savich and SWAL Product Manual render the instant claims prima facie obvious.
Response to Arguments
Applicant's arguments, filed 8/21/2025, regarding the 103 rejection over Sanz-Gomez, Savich and SWAL Product Manual have been fully considered but they are not persuasive.
Applicant argues that none of these references disclose the application of a superabsorbent polymer in combination with at least one sugar enhancing agent selected from imazapyr, imazethapyr, glyphosate, or combinations thereof. Applicant asserts that Sanz-Gomez is primarily concerned with the used of SAPs to improve plant health by altering gene expression, it does not disclose or suggest the use of SAPs together with chemical sugar enhancing agents. Applicant also asserts that Savich and the SWAL Product Manual discuss the use of starch-based SAPs for improving water retention and plant quality, but do not teach or suggest the combined use of SAPS and sugar enhancing agents for sugar enhancement. Remarks, pages 8-9.
In response, it is respectfully submitted that Sanz-Gomez teaches applying an SAP to soil and improving the plant health including increasing sugar content and while Sanz-Gomez is silent to applying a sugar enhancing agent to the soil (e.g. glyphosate), Savich teaches applying the SAP directly into the soil with the crop (col. 6, lines 19-26) as well as the particular compound, glyphosate, in combination with an SAP (col. 7, line 57). Accordingly, the references teach the active method steps and, in addition, Sanz-Gomez teaches that improving plant health encompasses increasing sugar content. Performing the active method steps will necessarily result in increased sugar content of a plant. For these reasons, applicant’s argument is unpersuasive.
Applicant also argues that the amended claims require imazapyr, imazethapyr, glyphosate, or combinations thereof as sugar enhancing agents. Applicant asserts that the cited references do not mention these agents in the context of their use with SAPs for sugar enhancement. Applicant states that glyphosate is a known ripener in sugarcane production. Applicant asserts that the cite references do not provide any data or rationale supporting a synergistic or additive effect on sugar content when these agents are used together. Remarks, page 9.
In response, it is respectfully submitted that, as discussed, above, the references teach glyphosate in combination with an SAP and, as applicant points out, glyphosate is a well-known ripener in sugarcane production. The references need not explicitly state that an active agent is being used for the state purpose. Active agents commonly have more than one function. The art teaches the active methods steps, and as such, a skilled artisan would reasonably expect that the application of an SAP and glyphosate would yield the same result as claimed, i.e., increase sugar content of a plant. Furthermore, there is no requirement that the references provide any data or rationale supporting a synergistic or additive effect on sugar content when these agents are used together. For these reasons, applicant’s argument is unpersuasive.
Applicant also argues that the cited references do not teach the combination of SAP and sugar enhancing agent to be applied to the soil between 0 and 30 days of sowing. Remarks, page 9.
In response, it is respectfully submitted that Sanz-Gomez teaches applying an SAP to soil before the seed is brought to the soil which implies 0 days (paragraph bridging pages 24-25), Sanz-Gomez also teaches sowing a seed 26 (18+8) days prior to a superabsorbent polymer is added to the substrate, e.g., soil (page 35, lines 9-26), Savich teaches applying the SAP directly into the soil with the crop (col. 6, lines 19-26), and Savich teaches the particular compound, glyphosate, in combination with an SAP (col. 7, line 57). Accordingly, the cited references suggest the method of application and timing of the instant claims. Thus, applicant’s argument is unpersuasive.
Applicant argues that the specification provides experimental data showing that the combination of SAPs and sugar enhancing agents result in a significant and unexpected increase in sugar content and recovery in sugarcane, far beyond what would be expected from the use of either component alone. Remarks, page 10.
In response, it is respectfully submitted that the date in the instant specification has been considered. Example 2 compares a control, the SAP (Zeba) alone, imazapyr alone, glyphosate alone, SAP (Zeba) + imazapyr, and SAP (Zeba) + glyphosate. It is important to note that the experiments involving the sugar enhancing agents, foliar sprays (application to leaves) occur at 45 days prior to maturity whereas the claims require applying the sugar enhancing agent to the soil between 0 to 30 days of sowing. Additionally, the data describes the particular plant, sugarcane and the particular concentrations of Zeba and sugar enhancing agents. Accordingly, the data provided is not commensurate in scope with the claimed invention. See MPEP 716.02(d). Thus, applicant’s argument is unpersuasive.
Thus, for these reasons, Applicant’s arguments are found unpersuasive. Said rejection is maintained/modified to account for the amendments to the claims.
Claim 18 stands rejected under 35 U.S.C. 103 as being unpatentable over Sanz-Gomez et al. (WO 2016/113727 A2, Jul. 21, 2016, hereafter as “Sanz-Gomez”), Savich (USPN 7,607,259 B2, Oct. 27, 2009, hereafter as “Savich”) and SWAL Product Manual (see PTO-892), as applied to claim 13 above, in view of Banasihan et al. (“Glyphosate as a ripener in sugarcane production in Batangas”, PJCS, Dec. 2007, 32(3): 31-45; hereafter as “Banasihan”).
Sanz-Gomez, Savich and SWAL Product Manual teach the elements discussed above.
Sanz-Gomez, Savich and SWAL Product Manual are silent to the plant is treated with the sugar enhancing agent at least 25-45 days before the harvest (instant claim 18).
Banasihan teaches that applying the ripener, glyphosate, to sugarcane 45 days before harvest yields an increase in sugar content (page 33, right col., paras 2-3; page 39, left col.).
The references are drawn to a method of treating plants, particularly, sugarcane to increase sugar content, thus, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the invention to combine the treatment of Sanz-Gomez/Savich/SWAL Product Manual with the treatment of Banasihan with a reasonable expectation of success. One of ordinary skill would have been motivated to do so because combining art recognized equivalents known for the same purpose is prima facie obvious. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art" (MPEP 2144.06(I)). It would have also been prima facie obvious to one of ordinary skill in the art before the effective filing date of the invention to apply glyphosate (a sugar enhancing agent) to a plant such as sugarcane 45 days prior to harvest because Banasihan teaches that application of said glyphosate 45 days prior to harvest is effective in increasing the sugar yield of sugarcane.
Thus, the combined teachings of Sanz-Gomez, Savich, SWAL Product Manual and Banasihan render the instant claim prima facie obvious.
Response to Arguments
Applicant's arguments, filed 8/21/2025, regarding the 103 rejection over Sanz-Gomez, Savich, SWAL and Banasihan have been fully considered but they are not persuasive.
Applicant argues that Banasihan does not disclose or suggest the use of glyphosate in combination with SAPs, nor does it address the application of such a combination to the soil for the purpose of increasing sugar content. Applicant also restates the arguments presented for the 103 rejection over of Sanz-Gomez, Savich and SWAL Product Manual. Remarks, pages 11-12.
In response, it is respectfully submitted that Banasihan need not teach glyphosate in combination with SAPs nor does Banasihan need to teaches application of the combination to the soil because, as discussed above, Sanz-Gomez, Savich and SWAL Product Manual teach said features. Instant claim 18 recites, “wherein the plant is treated with the sugar enhancing agent at least 25-45 days before the harvest”. Banasihan is relied upon to teach said limitation. Banasihan explicitly teaches that applying the ripener, glyphosate, to sugarcane 45 days before harvest yields an increase in sugar content. One of ordinary skill in the art would have reasonably expected applying the ripener, glyphosate, to sugarcane 45 days before harvest would have yielded an increase in sugar content. Furthermore, for the same reasons as discussed above, Applicant's additional arguments are not persuasive. The rejection is maintained.
New Rejections
In light of Applicant’s amendments, the following rejections have been newly added:
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 18 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 18 recites, “wherein the plant is treated with the sugar enhancing agent at least 25-45 days before the harvest”. Claim 18 depends from claim 13. Claim 13 recites, “applying superabsorbent polymer in combination with at least one sugar enhancing agent to the soil between 0 to 30 days of sowing”. Claim 13 effectively sets out that the sugar enhancing agent is applying to the soil 0 to 30 days before sowing, however claim 18 attempts to treat the plant with a sugar enhancing agent at least 25-45 days before harvest. Accordingly, the limitation of claim 18 does not further limit the subject matter set out in claim 13.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Conclusion
All claims have been rejected; no claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CASEY HAGOPIAN whose telephone number is (571)272-6097. The examiner can normally be reached on M-F 9:00 am - 3:30 pm.
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Casey S. Hagopian
Examiner, Art Unit 1617
/CARLOS A AZPURU/Primary Examiner, Art Unit 1617