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 .
Applicants’ amendment filed 12/15/2025 has been entered. Claim 1 was amended. New claim 11 was added. Claims 1, 3, 4, 7 and 9-11 are pending.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/15/2025 has been entered.
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 1, 3, 4, 7 and 9-11 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.
Claims 1 and 11 recites “wherein alginate is removed to 0 to 3% by weight and cellulose is removed to 0 to 3% by weight, wherein the % by weights are relative to the weight of the algal concentrate extract” however the method steps are drawn to obtaining a final “homogenized” algal concentrate extract. Therefore, it is unclear if the limitation is drawn to the alginate and cellulose present in the algal extract after the homogenizing step or the concentrating step.
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.
Claims 3 and 9 are 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. Claims 3 and 9 recite the percentage of dry matter of the algal concentrate is between 12 and 50% however claims 3 and 9 depend on claim 1 which limits the percentage of dry matter to between 9 and 20%. 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.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 11 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-8, 10 and 11 of copending Application No. 17/490,234 (herein ‘234). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims recite a method for obtaining a homogenized concentrated algal extract, comprising obtaining an algae extract; homogenizing the aqueous algal extract at a rate of 1-21 kg of concentrate per kg of extract; concentrating homogenized algal extract, wherein the algal extract contains 0 to 3% by weight alginate and 0 to 3% cellulose, has a pH of 2 to 7 and 9-70% dry matter whereas the copending application recites a method of preparing a concentrated algal extract consisting of providing fresh algae, grinding the algae, homogenizing the ground algae, preferably by adding 1-21 kg of water per kg of algal material, removing alginate and cellulose from the homogenate and concentrating the filtrate to reach a percentage dry matter 9-70% and alginate content of 0-3% and a cellulose content of 0-3% by weight. Claims 5-7 further adjust the pH to 1.5-9. Therefore, the present claims are prima facie obvious in view of the teachings of ‘234.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 1, 3, 4, 7, 9 and 10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-8, 10 and 11 of copending Application No. 17/490,234 (herein ‘234) in view of Booth (The Manufacture and properties of liquid seaweed extracts, Proc. Intl. Seaweed Symp, 6, pages 655-662, 1969). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims recite a method for promoting emergence, growth, development and/or reproduction of a plant, comprising obtaining an algae extract; homogenizing the extract with water; concentrating algal extract; and applying the concentrated extract by infiltration into the soil, spraying leaves of a plant, applying to seed before sowing or applying to roots of a seedling before planting, wherein the algal extract contains 0 to 3% by weight alginate or cellulose, has a pH of 2 to 7 and 9-20% dry matter. whereas the copending application recites a method of preparing a concentrated algal extract consisting of providing fresh algae, grinding the algae, homogenizing the ground algae, preferably by adding 1-21 kg of water per kg of algal material, removing alginate and cellulose from the homogenate and concentrating the filtrate to reach a percentage dry matter 9-70% and alginate content of 0-3% and a cellulose content of 0-3% by weight. Claims 5-7 further adjust the pH to 1.5-9.
‘234 does not specify treating plants. It is for this reason that Booth is joined.
Booth teach the use of seaweed fertilizers to supply trace elements to plants in alkaline soils (page 657, paragraph 3). With respect to claim 4, extracts of Fucus vesiculosus are shown to be effective growth promoters (page 658, paragraph 1). Also, the algae Ascophyllum nodosum is rich in phenols and enhance root-initiation (page 659). With respect to claim 7, Booth teach that the desired pH is 7.2-7.4 which is preferred for alkaline pH, however the most desired pH was variable and therefore could be optimized (page 661, paragraph 2). Booth teach applying the seaweed extracts as foliar sprays (page 656)
Therefore, the present claims are prima facie obvious in view of the teachings of ‘234 in view of Booth because Booth teaches applying seaweed extracts to plants was known to supply trace elements to plants.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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 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.
Claim 1, 3, 4, 9 and 10 are rejected under 35 U.S.C. 103(a) as being unpatentable over Booth et al. (The Manufacture and properties of liquid seaweed extracts, Proc. Intl. Seaweed Symp, 6, pages 655-662, 1969) in view of Herve et al. (US 4,897,266; patented January 30, 1990) in further view of Hedgpeth, IV (US 5,876,479; patented March 2, 1999).
Applicant’s Invention
Applicant claims a method for promoting emergence, growth, development and/or reproduction of a plant, comprising obtaining an algae extract; homogenizing the extract with water; concentrating algal extract; and applying the concentrated extract by infiltration into the soil, spraying leaves of a plant, applying to seed before sowing or applying to roots of a seedling before planting, wherein the algal extract contains 0 to 3% by weight alginate or cellulose, has a pH of 2 to 7 and 9-20% dry matter.
With respect to claims 1 and 3 of the instant application, Booth teach the use of seaweed fertilizers to supply trace elements to plants in alkaline soils (page 657, paragraph 3). With respect to claim 4, extracts of Fucus vesiculosus are shown to be effective growth promoters (page 658, paragraph 1). Also, the algae Ascophyllum nodosum is rich in phenols and enhance root-initiation (page 659). With respect to claim 7, Booth teach that the desired pH is 7.2-7.4 which is preferred for alkaline pH, however the most desired pH was variable and therefore could be optimized (page 661, paragraph 2). Booth teach applying the seaweed extracts as foliar sprays (page 656).
Booth does not teach concentrating the algae extract to have percentage of dry matter between 9-70%, wherein alginate and cellulose is removed to amounts of contains 0-3% relative to the extract. Booth does not teach the pH of the extract is 2.5-7. It is for this reason that Herve et al. is joined.
Herve et al. teach a method of obtaining products extracted from algae comprising cryocomminution and molecular milling followed by ultra- decantation and ultra-filtration (abstract). The process produces products from algae or plants and have a resulting pH close to 4.8 (column 1, lines 17-31). The filtrate produced by the process has cellulose and alginate that is eliminated during the decantation process (column 1, lines 43-46; column 3, lines 31-34). The first step of the process is milling by bursting the vegetative cells which results in a large quantity of intracellular liquid being obtained and better conservation of active ingredients due to low temperature (column 2, lines 6-39). The next step is ultra-decantation followed by ultra-filtration (column 2, lines 40-61). Afterwards, the product is packed in a sterile room for preservation (column 2, line 62 through column 3, line 15). Filtrate of laminaria algae (laminaria saccharrina, see Example 4) was prepared by milling fresh algae to obtain cream of algae. The cream of algae was decanted at high speed to eliminate cellulose and alginate and then filtered to remove impurities (Example 1). The product was diluted at doses of 10-50 mL pure product per day (column 3, lines 55 and 56). The dry matter, proteins, lipids, glucides and ash of the filtrate were assessed and the product was found to have 0.312% ash, 0.12% proteins, 0.02% lipids and 0.756% glucides (Table 1). The filtrate of Ascophylum alga was also assessed and the product comprises 0.138% ash, 0.03% protein, 0.005% lipid and 0.032% glucide (Table VII). Additional algae which can be used for food include fucus (Table X).
Herve et al. does not disclose the dry matter% which is obtained, however the product obtained would inherently have dry matter present since the filtrates possess proteins, ash, lipids and fucans depending of the algae used. Herve et al. teach that algal intercellular fluid is preserved because lipids, proteins and glucides (laminarin, fucans) are present in the final product. Herve et al. teach that the concentrate of the centrifugation are said to comprise debris and alginate, while the residue includes polysaccharides and the components can be separated from the filtrate for a different use (column 3, lines 1-15). The step of centrifugation correlates to the step of concentrating the filtrate.
Herve, teach ultra-decantation followed by ultra-filtration and cellulose and alginate is eliminated during the decantation process. Herve et al. teach that the concentrate of the centrifugation are said to comprise debris and alginate, while the residue includes polysaccharides and the components can be separated from the filtrate for a different use. This residue correlates to the concentrated algae extract. Booth teach applying seaweed extracts as foliar sprays to supply trace elements to plants in alkaline soils. Therefore, one of ordinary skill would have been motivated to combined the teachings of Booth and Herve et al. to include filtering , concentrating a filtrate and then applying the residue to leaves of a plant with a reasonable expectation of success to improve plant health.
Booth and Herve et al. do not teach a homogenized algal concentrate. With respect to claim 10, Booth and Herve et al. that water is added at a rate of 1 to 21 kg of water per kg of aqueous algal extract. It is for this reason that Hedgpeth, IV et al. is joined.
Hedgpeth, IV teaches manufacturing procedures and compositions for soil enhancers comprising adding Ascophyllum nodosum seaweed extract to a continuously agitated solution and adding additional water to aid in breakdown of proteins, increase of microbial count and solubilizing micro and macro nutrients to obtain a solution that is then applied to soil by spraying, injection, sprinkler or drip irrigation (abstract and Figure 1). The seaweed extract contains over 60 naturally occurring nutrients, amino acids, trace minerals and plant growth hormones as well as chelating agents. (column 2, lines 20-32). Additional water is added and after filtering the liquid concentrate is diluted with approximately 1 gallon of water to every ounce of concentrate (column 2, lines 33-37). The preferred seaweed extracts are completely homogenized and additional water may be added (column 4, lines 42-46). Table 1 discloses the soil enhancer comprises 176 pounds (65 kg) of seaweed and the water may be in the range of 50-150 gallons (189-567 kg) (page 5, lines 1-30). This correlates to at a rate of 3-8 kg of water per kg of algal extract.
Booth, Herve et al. and Hedgpeth, IV are drawn to compositions comprising brown algae extracts.
Therefore, it would have been prima facie obvious to one of ordinary skill at the time of filing to combine the teachings of Booth, Herve et al. and Hedgpeth, IV to homogenize the aqueous algal extract by adding water with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Booth, Herve et al. and Hedgpeth, IV to homogenize the algal extract because Hedgpeth, IV teach a process of preparing soil enhancers wherein the seaweed extracts are completely homogenized and adding water to aid in breakdown of proteins, increase of microbial count and solubilize micro and macro nutrients.
It would have been prima facie obvious to one of ordinary skill at the time of filing to combine the teachings of Booth, Herve et al. and Hedgpeth, IV to prepare concentrated extracts with 0-3% alginate or cellulose relative to the extract with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Booth, Herve et al. and Hedgpeth, IV to apply concentrated extracts with 0-3% cellulose or alginate because Herve et al. teach applying high speed to concentrate algae and separating components of the filtrate including cellulose and alginate.
It would have been prima facie obvious to one of ordinary skill at the time of filing to combine the teachings of Booth, Herve et al. and Hedgpeth, IV to include concentrated extracts with a pH of 2 to 7 with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of the filing to combine the teachings of Booth, Herve et al. and Hedgpeth, IV to produce concentrated extracts with a pH of 2 to 7 because Herve et al. teach producing concentrated algae extracts with a pH of 4.8, which overlaps with the claimed range.
Furthermore, it would have been prima facie obvious to one of ordinary skill at the time of filing to combine the teachings of Booth, Herve et al. and Hedgpeth, IV to prepare concentrated extracts with dry matter percentage of 12-50% with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Booth, Herve et al. and Hedgpeth, IV to produce concentrated extracts comprising 12-50% dry matter because Herve et al. teach the algae filtrate possess proteins, ash, lipids and fucans depending of the algae used and one of ordinary skill would have been motivated to isolate various components of dry matter for further use.
Finally, it would have been prima facie obvious to one of ordinary skill at the time of invention to combine the teachings of Booth, Herve et al. and Hedgpeth, IV to include dilute the concentrate at a rate of 3-8 kg of water per kg of aqueous algal extract with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Booth, Herve et al. and Hedgpeth, IV to produce concentrated extracts that can be diluted because Hedgpeth, IV teach diluting the seaweed concentrate at a rate of 3-8 kg of water per kg of aqueous algal extract for use as a soil enhancer.
Claim 7 is rejected under 35 U.S.C. 103(a) as being unpatentable over Booth et al. (The Manufacture and properties of liquid seaweed extracts, Proc. Intl. Seaweed Symp, 6, pages 655-662, 1969) in view of Herve et al. (US 4,897,266; patented January 30, 1990) and Hedgpeth, IV (US 5,876,479; patented March 2, 1999) as applied to claims 1, 3, 4, 9 and 10, in further view of Moigne (US 6,346,252; patented February 12, 2002).
Applicant’s Invention
Applicant claims a method for promoting emergence, growth, development and/or reproduction of a plant, comprising obtaining an algae extract; homogenizing the extract with water; concentrating algal extract; and applying the concentrated extract by infiltration into the soil, spraying leaves of a plant, applying to seed before sowing or applying to roots of a seedling before planting, wherein the algal extract contains 0 to 3% by weight alginate or cellulose, has a pH of 2 to 7 and 9-20% dry matter.
The teachings of Booth, Herve et al. and Hedgpeth, IV are addressed in the above 103 rejection.
Booth, Herve et al. and Hedgpeth, IV et al. do not teach the pH of the extract is 2.5-3. It is for this reason that Moigne et al. is joined.
Moigne teach a clarified algae extract which release intracellular content by filtration (abstract). The extract of Asparagopsis armata is obtained by crushing frozen algae (cryocommitution), then grinding (milling at temperatures less than 10 degrees Celsius, and the quantity of dry matter is adjusted to no more than 8% by diluting with water and centrifuged (concentrated ) (column 3, lines 22-58). The supernatant was acidified with citric acid to a value of 2 to 5 which slows down the degradation of the matrix and allows activity to be maintained more than 13 months (column 3, lines 59-61; column 7, lines 9-17). The dry matter % varies from 2.03% to 21.2% which is dependent on the temperature at which it is treated (column 4, lines 42-47).
Booth, Herve et al., Hedgpeth, IV et al. and Moigne et al. are drawn to compositions comprising brown algae extracts. Therefore, it would have been prima facie obvious to one of ordinary skill at the time of invention to combine the teachings of Booth, Herve et al., Hedgpeth, IV et al. and Moigne et al. to include concentrated extracts having a pH 2 to 3 with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Booth, Herve et al., Hedgpeth, IV et al. and Moigne et al. to produce concentrated extracts having a pH 2 to 3 because Moigne et al. teach acidifying algae extract products with citric acid to a pH value of 2 to 5 slow down the degradation of the product and allows activity to be maintained more than 13 months.
Response to Arguments
Applicant's arguments filed 12/15/2025 have been fully considered but they are not persuasive.
Applicant argues that Hedgpeth teaches away from the claimed invention because the homogenization occurs via mechanical process and does not involve the addition of water. The Examiner is not persuaded by this argument because Hedgpeth teach continuously agitating solution and adding additional water to aid in breakdown of proteins (abstract). The claims do not specify a mechanical process or apparatus used, the claim only requires homogenization. Furthermore Hedgpeth teaches that the seaweed extracts are completely homogenized (column 4, lines 42-46). Therefore, the limitation of the claims has been met.
Claims 11 are rejected under 35 U.S.C. 103(a) as being unpatentable over Herve et al. (US 4,897,266; patented January 30, 1990) in view of Hedgpeth, IV (US 5,876,479; patented March 2, 1999).
Applicant’s Invention
Applicant claims a method for obtaining a homogenized concentrated algal extract, comprising obtaining an algae extract; homogenizing the aqueous algal extract at a rate of 1-21 kg of concentrate per kg of extract; concentrating homogenized algal extract, wherein the algal extract contains 0 to 3% by weight alginate and 0 to 3% cellulose, has a pH of 2 to 7 and 9-70% dry matter.
Herve et al. teach a method of obtaining products extracted from algae comprising cryocomminution and molecular milling followed by ultra- decantation and ultra-filtration (abstract). The process produces products from algae or plants and have a resulting pH close to 4.8 (column 1, lines 17-31). The filtrate produced by the process has cellulose and alginate that is eliminated during the decantation process (column 1, lines 43-46; column 3, lines 31-34). The first step of the process is milling by bursting the vegetative cells which results in a large quantity of intracellular liquid being obtained and better conservation of active ingredients due to low temperature (column 2, lines 6-39). The next step is ultra-decantation followed by ultra-filtration (column 2, lines 40-61). Afterwards, the product is packed in a sterile room for preservation (column 2, line 62 through column 3, line 15). Filtrate of laminaria algae (laminaria saccharrina, see Example 4) was prepared by milling fresh algae to obtain cream of algae. The cream of algae was decanted at high speed to eliminate cellulose and alginate and then filtered to remove impurities (Example 1). The product was diluted at doses of 10-50 mL pure product per day (column 3, lines 55 and 56). The dry matter, proteins, lipids, glucides and ash of the filtrate were assessed and the product was found to have 0.312% ash, 0.12% proteins, 0.02% lipids and 0.756% glucides (Table 1). The filtrate of Ascophylum alga was also assessed and the product comprises 0.138% ash, 0.03% protein, 0.005% lipid and 0.032% glucide (Table VII). Additional algae which can be used for food include fucus (Table X).
Herve et al. does not disclose the dry matter% which is obtained, however the product obtained would inherently have dry matter present since the filtrates possess proteins, ash, lipids and fucans depending of the algae used. Herve et al. teach that algal intercellular fluid is preserved because lipids, proteins and glucides (laminarin, fucans) are present in the final product. Herve et al. teach that the concentrate of the centrifugation are said to comprise debris and alginate, while the residue includes polysaccharides and the components can be separated from the filtrate for a different use (column 3, lines 1-15). The step of centrifugation correlates to the step of concentrating the filtrate.
Herve, teach ultra-decantation followed by ultra-filtration and cellulose and alginate is eliminated during the decantation process. Herve et al. teach that the concentrate of the centrifugation are said to comprise debris and alginate, while the residue includes polysaccharides and the components can be separated from the filtrate for a different use. This residue correlates to the concentrated algae extract. Booth teach applying seaweed extracts as foliar sprays to supply trace elements to plants in alkaline soils. Therefore, one of ordinary skill would have been motivated to combined the teachings of Booth and Herve et al. to include filtering , concentrating a filtrate and then applying the residue to leaves of a plant with a reasonable expectation of success to improve plant health.
Herve et al. does not teach a homogenized algal concentrate or that water is added at a rate of 1 to 21 kg of water per kg of aqueous algal extract. It is for this reason that Hedgpeth, IV et al. is joined.
Hedgpeth, IV teaches manufacturing procedures and compositions for soil enhancers comprising adding Ascophyllum nodosum seaweed extract to a continuously agitated solution and adding additional water to aid in breakdown of proteins, increase of microbial count and solubilizing micro and macro nutrients to obtain a solution that is then applied to soil by spraying, injection, sprinkler or drip irrigation (abstract and Figure 1). The seaweed extract contains over 60 naturally occurring nutrients, amino acids, trace minerals and plant growth hormones as well as chelating agents. (column 2, lines 20-32). Additional water is added and after filtering the liquid concentrate is diluted with approximately 1 gallon of water to every ounce of concentrate (column 2, lines 33-37). The preferred seaweed extracts are completely homogenized and additional water may be added (column 4, lines 42-46). Table 1 discloses the soil enhancer comprises 176 pounds (65 kg) of seaweed and the water may be in the range of 50-150 gallons (189-567 kg) (page 5, lines 1-30). This correlates to at a rate of 3-8 kg of water per kg of algal extract.
Herve et al. and Hedgpeth, IV are both drawn to methods of preparing brown algae extracts.
Therefore, it would have been prima facie obvious to one of ordinary skill at the time of filing to combine the teachings of Herve et al. and Hedgpeth, IV to homogenize the aqueous algal extract by adding water with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Herve et al. and Hedgpeth, IV to homogenize the algal extract because Hedgpeth, IV teach a process of preparing soil enhancers wherein the seaweed extracts are completely homogenized and adding water to aid in breakdown of proteins, increase of microbial count and solubilize micro and macro nutrients.
It would have been prima facie obvious to one of ordinary skill at the time of filing to combine the teachings of Herve et al. and Hedgpeth, IV to prepare concentrated extracts with 0-3% alginate or cellulose relative to the extract with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Herve et al. and Hedgpeth, IV to apply concentrated extracts with 0-3% cellulose or alginate because Herve et al. teach applying high speed to concentrate algae and separating components of the filtrate including cellulose and alginate.
It would have been prima facie obvious to one of ordinary skill at the time of filing to combine the teachings of Herve et al. and Hedgpeth, IV to include concentrated extracts with a pH of 2 to 7 with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of the filing to combine the teachings of Herve et al. and Hedgpeth, IV to produce concentrated extracts with a pH of 2 to 7 because Herve et al. teach producing concentrated algae extracts with a pH of 4.8, which overlaps with the claimed range.
Furthermore, it would have been prima facie obvious to one of ordinary skill at the time of filing to combine the teachings of Herve et al. and Hedgpeth, IV to prepare concentrated extracts with dry matter percentage of 12-50% with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Herve et al. and Hedgpeth, IV to produce concentrated extracts comprising 12-50% dry matter because Herve et al. teach the algae filtrate possess proteins, ash, lipids and fucans depending of the algae used and one of ordinary skill would have been motivated to isolate various components of dry matter for further use.
Finally, it would have been prima facie obvious to one of ordinary skill at the time of invention to combine the teachings of Herve et al. and Hedgpeth, IV to include dilute the concentrate at a rate of 3-8 kg of water per kg of aqueous algal extract with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Herve et al. and Hedgpeth, IV to produce concentrated extracts that can be diluted because Hedgpeth, IV teach diluting the seaweed concentrate at a rate of 3-8 kg of water per kg of aqueous algal extract for use as a soil enhancer.
Conclusion
No claims allowed.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1617