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 .
Response to Amendment
In response to the amendment received 8/28/2025:
Claims 1-2, 4-9, 11-15 and 23-29 are presently pending
Claims 1-2, 4-6, and 13-15 are withdrawn
Claims 3, 10, and 16-22 are cancelled
The claim rejections under 35 U.S.C. 112(b) are withdrawn in light of amendments to the claims
All prior art grounds of rejection are maintained, with new support and grounds as necessitated by amendment
Response to Arguments
Applicant's arguments filed 8/28/2025 have been fully considered but they are not persuasive.
Applicant’s arguments regarding the rejections under 35 U.S.C. 102(a)(2) (Remarks Page 9) have been considered but are moot because none of the presently pending claims stand rejected as anticipated.
Applicant’s arguments regarding the rejections under 35 U.S.C. 103 (Starting on Remarks Page 14) have been considered but are not persuasive for at least the following reasons:
Applicant argues that Jokinen does not disclose the glycine betaine being in partial or total replacement of an inorganic nitrogen source in the hydroponic nutrient solution. Specifically, Jokinen teaches that its invention “is further beneficial in a sense that it does not require elimination of nitrate fertilizers” and “allows for attaining nitrate reduction in green foliage on a background of a standard fertilization regime” [Jokinen Page 7 lines 18-22]. However, the instant claims also do not require elimination of nitrate fertilizers, only at least partial replacement. Further, Jokinen does not explicitly teach away from reducing nitrates, as alleged by Applicant (Remarks page 15). Nitrates can be “the most important form of nitrogen taken up readily in large amounts” [Jokinen Page 7 lines 18-22] and still advantageously be partially replaced by another nitrogen source.
While Jokinen does not explicitly state this nitrogen replacement limitation, Jokinen is still regarded as necessarily reading on it. Specifically, the claims do not appear to provide an explicit meaning or quantity for replacing the inorganic nitrogen source. For example, a method of making or using a composition comprising A and B, wherein B partially replaces A, ultimately results in the same method as if B and A are both used together. Even if B replaces 20% of A, without a clear starting point, this ultimately results in the same method as if B and A are both used together in any amount. As such, Jokinen is regarded as necessarily reading on the replacement limitations.
Applicant also appears to challenge the fact that Jokinen does not explicitly state that the glycine betaine or the disclosed method enhances the productivity of plants, but rather implements the glycine betaine for purposes of regulation of hormonal responses, oxidative stress, and ionic homeostasis (Remarks Pages 12-13). However, Jokinen reports the implementation of glycine betaine in amounts consistent with the specification: see, e.g., the specification at Page 11 lines 27-31: 85 mg/L to 2350 mg/L, preferably 85 mg/L to 820 mg/L; see also the specification at Trial 1 on Pages 12-13 implementing 387 mg/L in replacement of inorganic nitrogen and resulting in 6% increased net yield; Jokinen discloses a concentration of 1 – 30 mM (117 mg/L – 3514 mg/L) and specifically tests 7.5 mM (878 mg/L) [Page 10 lines 20-23 and Fig. 6] as well as 1 mM (117 mg/L) and 4 mM (468 mg/L) [Figure 4A], calculations based on a molar mass of glycine betaine of 117 g/mol. Further, Jokinen reports results which fit within Applicant’s definition of enhanced productivity in the Specification at Page 6: “any improvement in the yield of any measured plant product” (lines 17-20) including “without limitation, parameters such as increased growth rate, increased biomass, harvest index and accelerated rate of root formation” (lines 20-23). Jokinen reports “additional beneficial effects, such as retardation of leaf tissue senescence (leaf ageing), elimination or at least prominent decrease in leaf wilting, and increase in dry matter levels in plant foliage” [Jokinen Page 5 lines 26-30]. As such, Jokinen reports the implementation of the glycine betaine in a hydroponic nutrient solution at appropriate levels, which necessarily results in enhanced productivity as defined by Applicant. Therefore, Jokinen as cited necessarily performs the method claimed.
Regarding claim 11, Applicant further argues that Gunes as cited would not lead one of ordinary skill in the art to replace 20% of the nitrogen with an equivalent amount supplied by the glycine betaine (Remarks Page 18). Specifically, Gunes implements an amino acid, while the claims implement glycine betaine, an amino acid derivative. Applicant states that replacing part of nitrogen fertilizer with glycine betaine is thus not equivalent to using an amino acid, essentially because they are chemically different and serve different purposes (Remarks Page 19). However, in implementing the method of Jokinen comprising applying glycine betaine as part of a fertilizing regime in hydroponic growing systems, one of ordinary skill in the art would look to additional references to identify appropriate relative amounts and types of fertilizer. As such, one of ordinary skill in the art would look to Gunes and readily identify that it is standard to replace 20% of the nitrogen supplied by a standard fertilizer in a hydroponic system. While Gunes specifically discusses amino acids, and glycine betaine is an amino acid derivative, obviousness does not require absolute predictability, only a reasonable expectation of success. See MPEP 2143.02. One of ordinary skill in the art would still find it obvious to try glycine betaine in light of the teachings of Gunes which are highly applicable to NFT-type hydroponic growing systems containing standard fertilizing nutrients such as that implemented by Jokinen [Jokinen Page 1 lines 15-17].
For at least the foregoing reasons, Applicant’s arguments are not found persuasive and the grounds of rejection are maintained.
Claim Rejections - 35 USC § 103
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(s) 7-9, 12, 23, 25-26, and 28-29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jokinen (International Patent Pub. No. 2020/225485 A1, hereinafter “Jokinen”).
Regarding claim 7, Jokinen teaches a method for enhancing plant productivity comprising supplying to a plant in a hydroponic nutrient solution a productivity enhancing amount of glycine betaine (e.g., delivering an osmolyte compound such as glycine betaine [Page 3 lines 27-32] to a hydroponically cultivated leafy vegetable [Abstract & Page 4 lines 3-4] which increases dry matter levels in plant foliage, tightens tissue structure, and improves plant appearance [Page 5 lines 26-31], here regarded as reading on enhancing plant productivity in light of the instant specification at Page 6 lines 17-22 describing enhanced productivity as any improvement in the yield of any measured plant product such as increased growth rate or increased biomass), wherein said glycine betaine is in partial or total replacement of an inorganic nitrogen source in the hydroponic nutrient solution (“One of the major drawbacks associated with hydroponic cultivation methods is that nitrogen (N), an element indispensable for plant growth, is delivered to plants in the form of water-soluble nitrates” [Jokinen Page 1 lines 19-21]; the invention disclosed by Jokinen is intended to reduce nitrate content; i.e., provide nitrogen through alternative means [Page 3 lines 20-26]: “presence of other, than nitrate, regulators of osmotic balance” [Page 20 lines 14-16]; as such one of ordinary skill in the art would readily appreciate that the glycine betaine is in partial or total replacement of an inorganic nitrogen source (i.e. nitrates) in the hydroponic nutrient solution; additionally, without a clear starting point, any amount of glycine betaine is theoretically replacing an unknown amount of inorganic nitrogen source, regardless of whether it is described as such);
wherein said plant productivity is equivalent or superior as compared to a plant cultivated with a nutrient solution comprising an inorganic nitrogen source alone in absence of glycine betaine (the glycine betaine is added by Jokinen in an amount resulting in enhanced productivity as compared to a plant cultivated with inorganic nitrogen alone as taught by the instant specification at Page 11 lines 27-31: 85 mg/L to 2350 mg/L, preferably 85 mg/L to 820 mg/L; see also the specification at Trial 1 on Pages 12-13 implementing 387 mg/L in replacement of inorganic nitrogen and resulting in 6% increased net yield; Jokinen discloses a concentration of 1 – 30 mM (117 mg/L – 3514 mg/L) and specifically tests 7.5 mM (878 mg/L) [Page 10 lines 20-23 and Fig. 6] as well as 1 mM (117 mg/L) and 4 mM (468 mg/L) [Figure 4A], calculations based on a molar mass of glycine betaine of 117 g/mol; it necessarily follows that glycine betaine added in these concentrations will result in an enhancement in plant productivity compared to a plant cultivated with inorganic nitrogen alone because the ranges taught by Jokinen overlap or encompass the productivity-enhancing concentrations disclosed in the instant specification).
Regarding claim 8, Jokinen teaches the method wherein the hydroponic nutrient solution comprises one or more nutrients and said glycine betaine is incorporated as an additive to supplement the one or more nutrients in the hydroponic nutrient solution which feeds the plant in a hydroponic system (e.g., the osmolyte compound, which can be glycine betaine, can be added into a complete nutrient solution [Page 17 lines 27-34] in a hydroponic channel system for a leafy green vegetable [Page 16 lines 18-21]).
Regarding claim 9, Jokinen teaches the method wherein the glycine betaine is included in the hydroponic nutrient solution (e.g., the osmolyte compound, which can be glycine betaine, can be added into a complete nutrient solution [Page 17 lines 27-34] in a hydroponic channel system for a leafy green vegetable [Page 16 lines 18-21]), but does not explicitly disclose that the glycine betaine is the sole nutrient in the nutrient solution. However, Jokinen teaches in a separate embodiment the testing of another osmolyte compound, trehalose, as the sole nutrient in the hydroponic solution [Page 18 lines 7-9]. Jokinen states that trehalose “appeared as efficient as e.g. glycine betaine tested in Experiment 1” [Page 18 lines 18-20]. Glycine betaine is one of only three total osmolyte compounds tested in the experiments disclosed by Jokinen [See Figure 6 showing testing of trehalose, glycerol, and glycine betaine]. As such, choosing glycine betaine as the sole nutrient in the hydroponic nutrient solution instead of trehalose amounts to no more than choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the sole nutrient embodiment of Jokinen to comprise glycine betaine instead of trehalose.
Regarding claim 12, Jokinen teaches the method wherein said plant productivity is enhanced by at least 0.1% compared to a plant cultivated with a nutrient solution comprising an inorganic nitrogen source alone in absence of glycine betaine (the glycine betaine is added by Jokinen in an amount resulting in enhanced productivity as compared to a plant cultivated with inorganic nitrogen alone as taught by the instant specification at Page 11 lines 27-31: 85 mg/L to 2350 mg/L, preferably 85 mg/L to 820 mg/L; see also the specification at Trial 1 on Pages 12-13 implementing 387 mg/L in replacement of inorganic nitrogen and resulting in 6% increased net yield; Jokinen discloses a concentration of 1 – 30 mM (117 mg/L – 3514 mg/L) and specifically tests 7.5 mM (878 mg/L) [Page 10 lines 20-23 and Fig. 6] as well as 1 mM (117 mg/L) and 4 mM (468 mg/L) [Figure 4A], calculations based on a molar mass of glycine betaine of 117 g/mol; it necessarily follows that glycine betaine added in these concentrations will result in at least a 0.1% enhancement in plant productivity because the ranges taught by Jokinen overlap or encompass the productivity-enhancing concentrations resulting in disclosed in the instant specification).
Regarding claim 23, Jokinen teaches the method wherein said plant is a leafy vegetable (e.g., leafy vegetables such as lettuce or endive) [Page 7 lines 20-23 & claim 6].
Regarding claim 25, Jokinen teaches the method wherein said glycine betaine is incorporate in the hydroponic nutrient solution at a concentration of between 0.75 meq/L to 20 meq/L (85 mg/L to 2350 mg/L) (Jokinen discloses a concentration of 1 – 30 mM (117 mg/L – 3514 mg/L) and specifically tests 7.5 mM (878 mg/L) [Page 10 lines 20-23 and Fig. 6] as well as 1 mM (117 mg/L) and 4 mM (468 mg/L) [Figure 4A], calculations based on a molar mass of glycine betaine of 117 g/mol).
Regarding claim 26, Jokinen as modified in the rejection of claim 9 above teaches the method wherein glycine betaine the sole nutrient in the hydroponic nutrient solution, but does not explicitly disclose that the solution consists only of glycine betaine and water. It is noted that Jokinen includes the osmolyte compounds on the background of a standard fertilization regime [Jokinen Page 7 lines 18-22]. It is unclear from Jokinen’s disclosure whether the experiment comprising only the trehalose, modified above to be glycine betaine, also includes fertilizing nutrients. However, even if it does, a portion of the fertilizing solution containing only the water and glycine betaine is regarded as being the hydroponic nutrient solution as claimed, whether or not it is at some point mixed with another solution containing nutrients. As drafted, the claim does not require the absence of another standard nutrient solution, merely that at some point in time the hydroponic solution contains only glycine betaine and water. Therefore, Jokinen is regarded as necessarily reading on this limitation.
Regarding claim 28, Jokinen teaches the method wherein said plant is an endive or chicory (e.g., leafy vegetables, such as endive) [Page 7 lines 20-23 & claim 6].
Regarding claim 29, Jokinen teaches the method wherein said glycine betaine is incorporated in the hydroponic nutrient solution at a concentration of between 0.75 meq/L to 7 meq/L (85 mg/L to 820 mg/L) (Jokinen discloses a concentration of 1 – 30 mM (117 mg/L – 3514 mg/L) and specifically tests 7.5 mM (878 mg/L) [Page 10 lines 20-23 and Fig. 6] as well as 1 mM (117 mg/L) and 4 mM (468 mg/L) [Figure 4A], calculations based on a molar mass of glycine betaine of 117 g/mol).
Claim(s) 11 and 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jokinen as applied to claims 7 and 10 above, and further in view of “Influence of partial replacement of nitrate by amino acid nitrogen or urea in the nutrient medium on nitrate accumulation in NFT grown winter lettuce,” Gunes et al, Journal of Plant Nutrition, 11/21/2008 (hereinafter “Gunes et al”).
Regarding claim 11, Jokinen teaches the method wherein said glycine betaine is in partial or total replacement of an inorganic nitrogen source in the hydroponic nutrient solution as discussed in the rejection of claim 10 above, but does not explicitly disclose that the inorganic nitrogen source is reduced by from 0.1% to 100% and replaced by an equivalent amount of glycine betaine in terms of nitrogen supplied. However, Gunes et al teaches that it is known to replace nitrates for NFT-grown (a type of hydroponically-grown) leafy green plants with amino acid nitrogen in the nutrient medium in order to reduce nitrate accumulation [Gunes et al Title & Abstract]. Gunes et al replaces 20% of the nitrate of the reference treatment with the amino acid but maintains the same total N concentration [Gunes et al Abstract]. One of ordinary skill in the art would readily appreciate that glycine betaine is an amino acid derivative and, in looking for how to implement it as a nitrate substitute for NFT-grown leafy green plants as taught by Jokinen [Jokinen Page 12 lines 14-18], would look to Gunes et al and readily appreciate that 20% nitrate replacement in terms of nitrogen supplied for NFT-grown leafy green plants is known and acceptable. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to replace 20% of the nitrogen with an equivalent amount supplied by the alternative source as taught by Gunes et al.
Regarding claim 27, Jokinen as modified by Gunes et al teaches the method wherein the amount of inorganic nitrogen source in the hydroponic solution is reduced by one of the provided percentages (e.g., 20% nitrate replacement) [Gunes et al Abstract].
Claim(s) 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jokinen as applied to claim 7 and 10 above, and further in view of Robins (U.S. Patent No. 3935673 A, hereinafter “Robins”).
Regarding claim 24, Jokinen teaches the method wherein said glycine betaine is incorporated in the hydroponic nutrient solution (e.g., the osmolyte compound, which can be glycine betaine, can be added into a complete nutrient solution [Page 17 lines 27-34] in a hydroponic channel system for a leafy green vegetable such as an endive [Page 16 lines 18-21 & claim 6]), but does not explicitly disclose that the glycine betaine is incorporated during a forcing process. However, Robins teaches that it is known when growing endive hydroponically to use a forcing process [Robins Abstract & Col. 3 lines 7-16] and to include during the forcing process a complete hydroponic nutrient solution to supplement the nutritional supply [Robins Col. 4 lines 9-19]. As such, in looking to implement the method of Jokinen to use a hydroponic nutrient solution to grow endives, one of ordinary skill in the art would look to Robins and readily appreciate that it is standard to provide hydroponic nutrient solutions during a forcing process. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention when growing endives using glycine betaine hydroponically as taught by Jokinen to do so during a forcing process as taught by Robins.
Conclusion
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.
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/H.E.R./ /JENNIFER A SMITH/Examiner, Art Unit 1731 Primary Patent Examiner, Art Unit 1731