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 .
Applicant’s response dated February 16, 2026 is acknowledged.
Priority
This application is a 371 of PCT/EP2020/065226 filed on 06/02/2020, and claims foreign
priority in GB1908776.6 filed on 06/19/2019.
Claim Status
Claims 1, 4-9, 11-16, and 18 are pending. Claims 2, 3, 10, and 17 were canceled. Claims
8 was amended. Claims 1, 4-7, 11, 13, and 14 remain withdrawn. Claims 8, 9, 12, 15, 16, and 18 are examined.
Maintained Claim Rejections - 35 USC§ 103
Modified as Necessitated by Amendment
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 8, 9, 12, 15, 16, and 18 are rejected under 35 U.S.C. 103 as being unpatentable
over Marks (GB 2 431 638 A, Published May 2, 2007 – of record in IDS dated 12/15/2021),
Eriksen (WO 01/49116 Al Published July 12, 2001), Freepons (US 4,964,894 Date of Patent
October 23, 1990), Takashi (EP O 253 682 A2 Published January 20, 1988), and Albert (GB
876,015 Published August 30, 1961).
The claims encompass a composition as described by the claims.
The teachings of Marks are related to caffeine, or a derivative thereof, and its use as a
plant reproductive growth stimulator or in the promotion of maturity in plants or in promoting
flowering, coloration or fruiting in plants. Marks discloses an agricultural formulation prepared
by admixing the following components (% w/w): water 37.910 caffeine 0.020 sodium molybdate
0.015 boric acid 0.600 phosphoric acid 33.500 citric acid 5.000 copper sulphate 0.450
manganese sulphate 1.000 magnesium sulphate 6.300 iron sulphate 1.500 zinc sulphate 1.450
cobalt sulphate 0.050 nickel sulphate 0.005 urea 11.200 molasses 1.000 (bridging pages 22-23).
The compositions also comprise one or more other agriculturally acceptable components.
Examples of such components include nutrient material, plant health or growth promoters, plant
oils, metabolic stimulating agents, emulsifiers, thickeners, and suspension agents (page 10 lines
16-22). Suitable thickeners include gums such as xanthan gum (page 11 lines 16-18).
Marks does not teach chelated manganese, an acidifier component including nitric acid, a
polyacrylic acid salt, and 1,3-dimethylurea.
The teachings of Eriksen are related to a plant growth promoting composition comprising
chelated micronutrients among others (Abstract and page 1 first paragraph). Urea was found to
be the preferred nitrogen source, and micronutrients include boron, copper, iron, manganese,
molybdate, and calcium (first full paragraph on page 4). Chelated micronutrients are most
effective compared to salts such as sulphates. Eriksen noted that one reason for this selection was
that chelates were found to be soft to leaf tissue and not as harsh as salts as their split into ions
can cause scorch (first full paragraph on page 4).
The teachings of Freepons are related to plant growth regulators comprising chitosan and
a non-phytotoxic acid in the form of an aqueous solution or a blend of dry powders. The
composition may be applied to the soil in which the seeds are to be planted, the seeds
themselves, or the foliage of the emerging plant (Abstract). The aqueous compositions comprise
about 0.1 % to about 10% wt. of chitosan and about 0.1 to about 10 wt.% of the non-phytotoxic
acid (column 3 lines 3-6). Plant growth regulators cause increased yields without the problems
associated with fertilizers (column 4 lines 45-49). A non-phytotoxic acid is an acid which will
not cause a significant adverse effect on the germination of plant seeds or development of
seedlings when used in the prescribed amounts of the present invention (column 5 lines 28-33).
The phytotoxicity or non-phytotoxicity of a particular acid may be dependent on its
concentration or dilution. However, suitable non-phytotoxic acids can be easily determined
without undue experimentation by uncomplicated germination studies. Such germination studies
are conducted by applying an acid to a plant seed and then attempting to germinate the seed.
Generally, about twenty seeds are subjected to the acid application, and then placed in a small
cup (about 4 centimeters diameter) with sufficient water (about 4 milliliters) to induce imbibition
and germination. If germination occurs, the acid is non-phytotoxic. Using the elementary
germination studies described above, it has been determined that suitable nonphytotoxic acids for
use in the present invention include amino acids such as arginine, histidine, isoleucine, leucine,
lysine, methionine, phenylalanine, threonine, tryptophan, valine, alanine, aspartic acid, citrulline,
cystine, glutamic acid, glycine, hydroxyglutamic acid, norleucine, praline, serine, and tyrosine;
and adipic acid; hydrochloric acid; tartaric acid; nitric acid; formic acid; and citric acid (column
5 lines 3 7-61). Examples 1-7 show the results of using said composition on various plants and it
is apparent from the results that the composition comprising chitosan and a non-phytotoxic acid
stimulate plant growth.
The teachings of Albert are related to compositions for use in agriculture for regulating
the growth of plants. It was found that di- and mono- alkyl substituted ureas have a growth
regulating action on plants, and when used at suitable rates of application act as plant-growth
stimulants (page l left column lines 8-15). Valuable mono- or di-alkyl substituted ureas for use
in compositions according to the invention are those in which the alkyl substituents contain from
1 to 4 carbon atoms, the tert-butyl group being particularly preferred. Examples of such urea
derivatives are N-tert-butyl-urea, N,N'-di-tert-butyl-urea and N-N'-dimethylurea (page 1 right
column lines 48-55). Suitable carriers for use in the compositions according to the invention
include both solid and liquid carriers. Liquid compositions according to the invention may be in
the form of solutions, emulsions or suspensions, in water or suitable organic solvents of a
nonphytotoxic nature. Liquid compositions may include one or more dispersing, emulsifying,
suspending, wetting, nutritional, plant-growth stimulating, fungicidal, bactericidal, insecticidal,
acaricidal and/or solid-improving agents (from page 1 right column line 82 to page 2 left column
line 6). Further examples of substances which may be employed in association with urea
derivatives in compositions include for example micro-nutrients, such as the trace elements
copper, manganese and boron, macro-nutrients such as superphosphate, potash and nitrogenous
compounds (page 2 left column lines 42-48). Example 2 teaches a fertilizer solution comprising
13 parts by weight of urea and 1.2 parts by weight of N,N' -di-tert-butyl urea. The solution may
be used directly or diluted to a concentration of 0.1 to 0.2% (page 2 right column lines 90-113).
The teachings of Marks, Eriksen, Freepons, and Albert are related to agricultural
compositions, and it would have been obvious to have combined their teachings because they are
in the same field of endeavor.
Regarding claims 8 and 18, it would have been prima facie obvious to a person of
ordinary skill in the art before the effective filing date of the claimed invention to have modified
Marks' composition of example 1 by replacing micronutrient salts with chelated micronutrients,
with a reasonable expectation of success because it was known from Eriksen that chelated
micronutrients are most effective compared to salts such as sulphates. Such modification would
have included replacing manganese sulphate with chelated manganese such as Mn EDTA.
Eriksen noted that one reason for this selection was that chelates were found to be soft to leaf
tissue and not as harsh as salts as their split into ions can cause scorch (first full paragraph on
page 4). Combining prior art elements according to known methods to obtain predictable results
supports obviousness. In the present case, a person skilled in the art would have been motivated
to make proposed modification because the modification would have improved Marks' product
and it has been held that the strongest rationale for combining references is a recognition,
expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on
established scientific principles or legal precedent, that some advantage or expected beneficial
result would have been produced by their combination.
It would have been further obvious to have modified Marks' composition in Example 1
by replacing citric acid with nitric acid, with a reasonable expectation of success because it was
known from Freepons that citric acid and nitric acid are non-phytotoxic acids suitable for use in
plant growth regulator compositions. Replacing one equivalent with another to obtain a
predictable result supports obviousness.
It would have been further obvious to have modified Marks' composition in example 1 by
adding 1,3-dimethylurea, with a reasonable expectation of success because it was known from
Albert that di-alkyl substituted ureas such as 1,3-dimethylurea are plant growth stimulants and
Albert exemplified a fertilizer composition comprising urea and a di-alkyl substituted urea.
According to example 2, a 0.1-0.5% aqueous solution is produced from a mixture that contains
1.2 parts by weight of di-alkyl substituted urea based on 60 total parts of all components. The
weight % concentration of the urea would be 2% wt./wt. (1.2/60* 100). A 0.1-0.5 % aqueous
solution would have contained the dialkyl substituted urea in a concentration that is less than 2
wt.% by weight of the composition. It would have been obvious to have added 1,3-dimethylurea
in a concentration of less than 2 wt. % by weight of composition because Albert teaches a
fertilizer solution in Example 2 comprising said concentration range as calculated above. There
would have been a reasonable expectation of success because Albert teaches that the di-alkyl
substituted ureas may be formulated in a fertilizer composition comprising micronutrients and
macronutrients and Marks' composition in Example 1 is a fertilizer composition comprising
micronutrients and macronutrients where the intended use of the composition is stimulating plant
growth. Furthermore, it would have been obvious to use a combination of urea and a di-alkyl
substituted urea in the composition because Albert teaches an example of a fertilizer comprising
the combination. Combining prior art elements according to known methods to obtain
predictable results supports obviousness.
It would have been obvious to have modified the composition in Example 1 by adding a potassium macronutrient in a concentration range of 5-20 wt. % with a reasonable expectation of success because Marks teaches potassium as a suitable macronutrient for use in the compositions (page 6 lines 4-9), wherein each individual macronutrient is present in a concentration range of 5-20 wt. % (page 6 lines 19-25). It would have been obvious to have added a mixture of potassium nitrate and potassium chloride, with a reasonable expectation of success because Marks teaches an agricultural formulation comprising a mixture of potassium nitrate and potassium chloride (Example 3 bridging pages 23-24). A mixture of potassium nitrate and potassium chloride is considered an individual macronutrient because potassium is the macronutrient and both salts are a source of potassium.
Modified Example 1 composition would have comprised
11.200 wt. % urea and less than 2 wt. % 1,3-dimethylurea (relevant to claimed i)
0.02 wt. % caffeine (relevant to claimed ii)
5 wt. % nitric acid (relevant to claimed iii)
1 wt.% Mn EDTA (relevant to claimed iv) and
5-20 wt. % of a mixture of potassium nitrate and potassium chloride.
The claimed concentration ranges are obvious because they overlap with their corresponding concentrations in Marks' modified composition in Example 1.
Regarding claim 9, the composition contains caffein.
Regarding claim 12 component (i), claimed concentration range of the urea component is
obvious because it encompasses 11.2 wt.% and less than 2 wt.% (urea in example 1).
Regarding claim 12 component (ii), it would have been obvious to have modified the
concentration of caffein in the range from 0.005 to 0.05 wt.% of the total composition, with a
reasonable expectation of success because Marks teaches caffeine in the concentration range of
0.005-0.05 wt.% (paragraph bridging pages 6 and 7). The claimed concentration range of
xanthine component is obvious because it is close enough in number to 0.005-0.05 wt. % that a
person skilled in the art would have expected them to have the same properties. Present
application was reviewed and there is no evidence that claimed range of xanthine component is
critical in the claimed composition. MPEP 2144.05.
Regarding claim 12 component (iii), it would have been obvious to have modified the
composition in example 1 by varying the concentration of nitric acid in the range of 0.1-10 wt.
%, with a reasonable expectation of success because Freepons teaches that the non-phytotoxic
acid such as nitric acid may be present in the composition in the range of0.1-10 wt.%. The
claimed range is obvious because it overlaps with 0.1-10 wt.%. Furthermore, Marks teaches
compositions having citric acid in the concentration of 1 wt. % (Example 2), 2 wt. % (Example
3), and 5 wt.% (Example 1), and it would have been similarly obvious to have used these
concentrations for nitric acid in order to form Marks' composition.
Regarding claim 12 component (iv), it would have been prima facie obvious to a person
skilled in the art to have further modified the composition in example 12 by varying the
concentration of chelated manganese such that the concentration of manganese ranges from
0.001 % wt. to to 20 % wt./wt., with a reasonable expectation of success because Marks
teaches that plant nutrient salt will be present in an amount suitable to the nature of the plant
nutrient and further provides ranges of individual micronutrients including 5-20 % wt./wt. and
0.001-1 % wt./wt. (third full paragraph on page 6). Thus, the broadest range in view of these
teachings ranges from 0.001 to 20 % wt./wt. More specifically, it would have been obvious to
have modified the composition in example 1 to comprise manganese EDTA chelate in an amount
to provide 4% manganese, with a reasonable expectation of success because Marks teaches a
composition in example 5 that contains 4% manganese (page 25). Claimed concentration range is
obvious because it overlaps with the broadest range and encompasses the specific value of 4 wt.
%. The embodiments of claims 12 and 18 are obvious over Marks' composition in example 1
modified by Eriksen and Freepons.
Regarding the "wherein" clause in claim 12, it would have been reasonable to expect the
prior art composition to have the same properties as claimed composition, when placed under
identical conditions, including not reducing efficacy of a herbicide to which a plant has been
exposed in the presence of the plant treatment composition on the plant. The prior art
composition meets all of the structural requirements of the claimed composition and it would
have been reasonable to expect the prior art composition to have the same properties as claimed
composition, absent evidence to the contrary.
Regarding claim 15, Marks' modified composition comprises caffein.
Regarding claim 16, it would have been obvious to have combined Marks' composition
as modified with Eriksen, and Albert with the composition of Freepons in order to form
a composition useful as a plant growth regulator, with a reasonable expectation of success
because combining two compositions known to be useful for the same purpose in order to form a
third composition useful for the same purpose supports obviousness. In the present case, Marks'
composition modified in view of Eriksen, and Albert was useful for stimulating plant
growth; and it is apparent from Freepons' examples that Freepons' compositions increase plant
growth. Therefore, it would have been obvious to combine the two to form a third composition
that increases plant growth.
The resulting composition would have comprised citric acid and nitric acid. Since the
properties of nitric acid and citric acid are known, the skilled artisan would have modified their
concentrations accordingly. For example, it would have been obvious to have used the two acids
in a combined concentration of 5 wt. % because Marks' composition teaches citric acid in a
concentration of 5 wt.%. Alternatively, it would have been obvious to have used the two acids in
a combined concentration of 0.1-10 wt. % because Freepons teaches 0.1-10 wt. % as a suitable
concentration range of non-phytotoxic acids such as citric acid and nitric acid.
Response To Arguments
Applicant’s argument submitted in the remarks dated February 16, 2016 was fully considered but it is not persuasive because Marks teaches using a combination of two different potassium salts in the composition. The rejection has been modified to address the newly added limitation.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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.
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/ALMA PIPIC/Primary Examiner, Art Unit 1617