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 .
Information Disclosure Statement
The information disclosure statement filed 1/31/2022 has been considered. The citations to the claims and abstracts found in the Incoming ISR, 237 and References from IB (P.210.IN) are being regarded as a concise explanation of the relevance of the foreign language document, as required by 37 CFR 1.98(a)(3)(i).
Response to Amendment
In response to the amendment received 10/9/2025:
Claims 1 and 3-19 are presently pending
Claims 10-16 are withdrawn
Claim 2 is cancelled
The rejections of claims 1 and 3 under 35 U.S.C. 112(b) are maintained, and the rejection of claim 17 under 35 U.S.C. 112(b) is withdrawn in light of the amendments
All prior art grounds of rejection are maintained
Response to Arguments
Applicant's arguments filed 10/9/2025 have been fully considered but they are not persuasive.
Regarding the rejections under 35 U.S.C. 112(b):
Regarding claim 1, Applicant argues that the cited concentration refers to the total combined concentration of the carrot extract, sweet potato extract, and maize flour, and that this should be clear in light of the Specification (Remarks Pages 5-6). However, Applicant’s disclosure appears to contradict this interpretation: Composition C on Page 16 contains 10 kg carrots, 10 kg sweet potato, and 12.5 kg maize flour per 1000 liters irrigation water, which converts to 2 kg carrots, 2 kg sweet potato, and 2.5 kg maize flour per 200 liters irrigation water. Therefore, the total concentration is 6.5 kg per 200 liters irrigation water, which falls outside Applicant’s interpretation of claim 1 (2 to 5 kg total concentration) and provides evidence that the claim as drafted is unclear and the specification does not sufficiently clarify. See also Composition D on Page 16 and Composition F on Page 13. As such, the 112(b) rejection is maintained.
Further, "Though understanding the claim language may be aided by explanations contained in the written description, it is important not to import into a claim limitations that are not part of the claim. For example, a particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment." Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875, 69 USPQ2d 1865, 1868 (Fed. Cir. 2004). Here, Applicant points to particular embodiments or descriptions, but the claim language and also other disclosed embodiments are broader than the embodiment. As such, these limitations cannot properly be read into the claims.
Regarding claim 3, Applicant argues that the phrasing “wherein each extract comprises at a weight equal to half of the final extract weight” is clear and reflects a 1:1 ratio between carrot and sweet potato extracts in light of the specification. However, it is still unclear what “the final extract weight” refers to because no final extract weight limitation has been previously set forth, establishing the relative concentrations of these components. Further, Applicant’s disclosure appears to contradict the asserted interpretation: Composition G on Page 24 contains 5 kg dried sweet potato powder and 2.5 kg dried carrot powder, which is not a 1:1 ratio. Composition N on Page 15 contains 30 kg boiled and mashed carrots and 25 kg boiled and mashed sweet potato, which is not a 1:1 ratio. These provide evidence that the claim as drafted is unclear and the specification does not sufficiently clarify. As such, the 112(b) rejection is maintained.
Regarding the rejections under 35 U.S.C. 103:
Regarding Applicant’s arguments that the references do not recite the intended uses or intended results of the composition (Remarks Page 8 describing irrigation and application to crops, Remarks Page 14 describing application between flowering and harvest, Remarks Page 15-16 describing application between flowering and harvest, Remarks Page 17 describing application before flowering time, Remarks Page 19 describing spray irrigation, Remarks Page 20 describing increased yield, Remarks Page 28 describing application between flowering and harvest, Remarks Page 29 describing application between flowering and harvest, Remarks Page 31 describing application before flowering time, Remarks Page 30 describing spray irrigation, Remarks Page 34 describing increased yield), these are not found persuasive. Applicant argues that these limitations do not fall under intended use or intended result and therefore are limiting. However, “[W]here a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation.” Rowe v. Dror, 112 F.3d 473, 478, 42 USPQ2d 1550,1553 (Fed. Cir. 1997). Similarly, a “whereby” or “wherein” clause that merely states the inherent result of the limitations in the claim adds nothing to the patentability or substance of the claim.
Here, the invention as claimed only provides structure in the limitations requiring carrot extract, maize flour, and sweet potato extract, present in particular concentration. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Applicant asserts that the included steps and the timing thereof (see, e.g., Remarks Page 14 regarding application during flowering to harvest stage) have real-world structural and functional consequences which specifically lead to increases in vitamin D levels. However, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935). The compositions cited by the prior art contain the appropriate concentrations of the extracts and are capable of being applied in irrigation water to crop plants. Therefore, the prior art structure meets the claim. Applicant’s further distinctions between the prior art structure and the claimed invention appear to rely on features not claimed, which are addressed below. For at least the foregoing reasons, these arguments are not found persuasive.
Regarding Applicant’s arguments that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the plant nutrients must be in elemental or ionic form rather than a form for human consumption (Remarks Page 8), a beverage for human ingestion has a different structure and function which would not inherently provide the same functional effect (Remarks Page 10), the prior art composition would not cause crops to biosynthesize vitamins D2 or D3 (Remarks Page 12), spray irrigation requires that a composition be dissolved and atomized while remaining stable and non-clogging (Remarks Page 19), the composition of claim 1 is expressly adaptable for spraying or rain-pipe irrigation (Remarks Page 23), the claimed composition is non-genetically modified (Remarks Page 40)) are not recited in the rejected claim(s). For example, claim 1 does not require that the composition be dissolved, atomized or stable. Claim 1 also does not require that the nutrients be in elemental or ionic form. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). It is improper to import claim limitations from the specification. See MPEP 2111.01(II). As such, these asserted structural differences cannot provide a basis for patentability.
Regarding Applicant’s arguments that the Examiner improperly uses an inherency rationale (Remarks Pages 10, 12, 14, 16, 18, 21, 26, 28, 30, 33, 35, 38, , the Examiner does not rely on an inherency rationale, but rather an intended use rationale, as discussed above. The Examiner is not arguing that the composition of the prior art would necessarily or inherently be applied during irrigation, or that one of ordinary skill in the art would think to do so. Rather, the prior art composition, having all the required structural elements set forth in the claims, can be applied in the steps described by applicant (i.e., it is capable of being applied, which is the intended use standard set forth in MPEP 2111.01(II)) because it is a liquid formulation which can be added to water. When applied as such, it necessarily follows that it produces the claimed result, because it contains all the structural elements claimed. As such, the prior art composition meets the limitations of the intended use. While Applicant may assert that the crop-specific response is not an inherent property of the ingredients themselves (Remarks Page 10), the Examiner compares the prior art to the invention as claimed. As claimed, the invention only requires the ingredients themselves, and the non-limiting intended use. Additionally, Applicant appears to assert several structural differences which are not claimed (e.g., the organic compounds in the prior art’s formulation are not in a suitable mineralized elemental or ionic form required by plants), which have been addressed above.
Further related to inherency rationale, Applicant argues that Baisone’s mention of powder does not necessarily or inherently result in dried beetroot powder (Remarks Page 39). This is not found persuasive because Baisone includes beet root extract [Baisone Page 4 Para. 2], and the composition is then formulated into a wetting powder or dusting powder [Baisone Page 5 Para. 2]. As such, it logically necessarily follows that all the included components are part of that dry powder form, including the beets. Applicant further asserts differences between the powder of Baisone and the powder claimed, which rely on limitations not claimed (e.g., the specific preparation through a grinding and drying process conferring specific solubility and stability properties) (Remarks Page 30). Limitations not claimed are addressed above.
Regarding Applicant’s arguments that the invention produces unexpected results (Remarks Pages 11, 13, 15, 20, 21, 23, 24, 25, 27, 29, 30, 31, 32, 35, 38, 39), these are not found persuasive at least because any unexpected results are not commensurate in scope with the claims. Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). Here, for example, Applicant argues that the unexpected results occur in wheat and not rice (Remarks Page 11), but neither of these crops are specified in the claims. Applicant also points to Examples 1-4 in the Specification as evidence of vitamin D and yield increase. However, these formulations all contain particulars not claimed: For example, composition F on Page 13 contains tomato raw and ground, and decant of subsoil, which are not claimed. Certain measured values of vitamin D are in the form of vitamin D3, which is not claimed (Specification Page 23 at Table 1). Further, the ingredients are included in specific, discrete ratios which do not cover the entire claimed range of 2 to 5 kg per 200 liters irrigation water. For example, Composition G on Page 14 contains 5 kg dried sweet potato powder, 2.5 kg dried carrot powder, and 12 kg maize flour in 200 liters of irrigation water, and does not contain any beet powder. As such, Applicant has not established unexpected results over the entire claimed range. Further, to show unexpected results, the claimed subject matter should be compared with the closest prior art to rebut a prima facie case of obviousness. In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979). Here, Applicant’s comparison appears to be a control test with no additives, rather than the closest prior art (see, e.g., Specification Page 23 at Table 1 comparing yield in control to yield of treated sample and vitamin D3 in control to vitamin D3 of treated sample). For at least the foregoing reasons, the alleged unexpected results are not found persuasive.
Regarding Applicant’s arguments that several references are not analogous art:
As to Brown (Remarks Page 8): A reference must be analogous art to the claimed invention. Here, the claimed invention only requires (1) the established structural limitations discussed above and (2) their non-limiting intended use. Because the invention is not limited to the intended use, it is not limited to the fields of botany, agronomy, plant biology, etc. as alleged by Applicant (Remarks Page 8). The invention as claimed is only limited insofar as the prior art must have the cited structure and be capable of performing the intended use. Therefore, even though Brown is directed to a liquid food composition, it passes the analogous art test because the field of endeavor is not limited in the manner alleged by Applicant.
As to Baisone (Remarks Page 23): Baisone is analogous art for the same reasons discussed for Brown above. Further, even assuming that the field of invention would be limited to botany, agronomy, etc., Baisone is direct to a composition used in agriculture and applied during irrigation. Therefore, even assuming a more limited field of invention, Baisone is in the same field of endeavor.
As to Yang (Remarks Page 23): Yang is analogous art for the same reasons discussed for Brown above. Further, even assuming that the field of invention would be limited to botany, agronomy, etc., Yang is directed to a fertilizer composition used in agriculture and applied with water. Therefore, even assuming a more limited field of invention, Yang is in the same field of endeavor.
Regarding Applicant’s arguments that Brown teaches away from the claimed invention (Remarks Page 9), the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004). Here, Brown does not remotely criticize, discredit, or otherwise discourage anything about the solution claimed. While it focuses on a human food and beverage formation, rather than plant uptake mechanism, this does not constitute teaching away. Applicant argues that a person of ordinary skill in the art would not think to try this human food and beverage formulation in an irrigation system, because the fact that it is in a different field amounts to “teaching away”. However, the Examiner is not arguing that a person of ordinary skill in the art would think to do this. Rather, the Examiner is arguing that the reference meets the claimed structure, and is capable of performing the intended use as discussed above, since it is a liquid formulation in water. Therefore, the arguments about teaching away are not found persuasive.
Regarding Applicant’s arguments that Baisone does not render obvious the selection of beets as a plant extract source because it is included in a laundry list of possibilities (Remarks Page 26), this is not found persuasive. Baisone includes plant extract in its composition. The plant extract may be selected from a variety of disclosed sources. Beet root extract is in fact described as a preferred embodiment [Baisone Page 4 Para. 2], not merely a species in a laundry list of possibilities. Further, Baisone is the base reference in the rejection, and the implementation of beet root extract in the same embodiment (i.e., the embodiment of the agricultural composition used in irrigation relied upon in the rejection) is not an obviousness combination. The cited case law relates to obviousness combinations. For at least the foregoing reasons, this argument is not found persuasive.
Regarding Applicant’s arguments that the Examiner's conclusion of obviousness is based upon improper hindsight reasoning (Remarks Pages 11, 14, 15, 17, 20, 24, 27, 29, 31, 35, 38, 40), it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Here, the reconstruction is proper as discussed in the responses above.
Regarding Applicant’s arguments as to the combination of Baisone and Yang starting on Page 41 and also included in the Remarks filed 6/22/2025, these are not found persuasive for several reasons:
They rely on limitations not claimed: “solely food-derived, plant-based composition . . . to stimulate endogenous vitamin D biosynthesis in cereal crops” (Remarks Page 41). None of the claims require a composition that is solely food derived or plant based, or that it specifically stimulates endogenous vitamin D biosynthesis, or that it is applied to cereal crops. Similarly, the fact that Baisone includes vitamin D as an exogenous additive instead of stimulating natural biosynthesis using a non-genetically modified, plant-based composition does not form a distinction over the prior art because these limitations are not claimed. Claim 1 only requires a “nutrient enhancing composition” capable of “increasing vitamin D content in plants” and says nothing about stimulating natural biosynthesis.
The motivation to combine their teachings has been established: Baisone teaches that any plant derived material can be used in combination with plant extracts in its composition [Baisoen Page 9 Para. 6]. As such, in making the composition of Baisone, one of ordinary skill in the art would be prompted to look to additional sources of plant material to combine. Yang teaches that sweet potato residues or slag are standard ingredients in agricultural compositions such as water-containing fertilizers [Yang Abstract & Para. 0010]. As such, one of ordinary skill in the art would look to Yang and readily appreciate that these sweet potato forms are standard inclusions, and would be motivated to try including them based on Baisone’s open suggestion to include any plant material.
For at least the foregoing reasons, Applicant’s arguments are not found persuasive and the challenged grounds of rejection are maintained.
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.
Claims 1, 3-9 and 17-19 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.
Regarding claim 1, the recitation “wherein the carrot extract, sweet potato extract, and maize flour are present at a concentration of 2 to 5 kg per 200 liter irrigation water” renders the claim indefinite. The recitation is indefinite because it is unclear whether the extracts and flour are present at a total concentration of 2 to 5 kg per 200 liters water, or whether each extract and the flour are present in individual concentrations of 2 to 5 kg per 200 liters water. For purposes of examination, the concentration is regarded as referring to a total concentration of the extracts and the flour in the water.
Regarding claim 2, the recitation “wherein each extract comprises at a weight equal to half of the final extract weight” renders the claim indefinite. The recitation is indefinite because it is unclear that “the final extract weight” refers to. For example, “the final extract weight” could refer to the total extract weight of only carrot and sweet potato extract, or a total extract weight of all plant extract included in the composition. For purposes of examination, “the final extract weight” is regarded as referring to the total extract weight of only the carrot and sweet potato extract (i.e., the carrot and sweet potato extracts are present in approximately a 1:1 ratio by weight).
Regarding claim 17, the recitation “the raw carrots” lacks antecedent basis. It is unclear whether “the raw carrots” refers back to “the carrot extract” previously set forth in claim 1 or an additional amount of carrots. For purposes of examination, “the raw carrots” is being interpreted as referring to the carrot extract set forth in claim 1.
Further regarding claim 17, the recitation “sweet potatoes” lacks antecedent basis. It is unclear whether “sweet potatoes” refers back to the “sweet potato extract” previously set forth in claim 1 or some other amount of sweet potatoes. For purposes of examination, “sweet potatoes” is regarded as referring back to the sweet potato extract set forth in claim 1.
Note that all other claims are included as a result of their dependency upon a rejected claim as set forth above.
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) 1 and 4-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Brown (CN 103648288 A) with reference to the provided machine translation (hereinafter “Brown”).
Regarding claim 1, Brown teaches a composition (e.g., a liquid food composition) [Brown Abstract] comprising:
carrot extract (e.g., a starch or carbohydrate from carrots [Brown Para. 0232] or carrot oil [Brown Para. 0247], both of which are here regarded as reading on carrot extract),
maize flour (e.g., corn flour) [Brown Para. 0232], and
sweet potato extract (e.g., a starch or carbohydrate from sweet potato, here regarded as reading on sweet potato extract) [Brown Para. 0232],
wherein the carrot extract, sweet potato extract and maize flour are present at a concentration of 2 to 5 kg per 200 liters water (e.g., the starch/carbohydrate sources such as carrot extract or sweet potato extract as described above are present in the liquid food product in an amount comprising 0.5% to 80% by weight [Brown Para. 0233] and the food product is dissolved in water (see, for example, the food product dissolved in 72% water as described in Table 5 below at [Para. 0317]; as such, the concentration of the extracts disclosed by Brown will necessarily overlap with the claimed range of 1-2.5% by weight in water. Similar or overlapping ranges create a prima facie case of obviousness; see MPEP 2144.05).
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Brown does not explicitly state that the composition is a nutrient enhancing composition which increases vitamin D content in crop plants when applied during irrigation. However, this would appear to be a recitation of an intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Brown comprises the necessary components disclosed by Applicant to increase vitamin D of plants, and is capable of being applied to plants. Because Brown discloses the formulation claimed, and there appear to be no structural differences imparted by the claimed intended result, it necessarily follows that the formulation would exhibit the claimed characteristic which Applicant attributes to the ingredients taught by Brown. Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979).
Regarding claim 4, Brown teaches the composition further comprising beet root extract (e.g., beet powder) [Brown Para. 0247].
Regarding claim 5, Brown teaches the composition, but does not explicitly disclose that it is applied to crop plants at least once between flowering and harvest. However, this would appear to be a recitation of an intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Brown comprises the necessary components disclosed by Applicant and is capable of being applied to plants. Because Brown discloses the formulation claimed, and there appear to be no structural differences imparted by the claimed intended use of application between flowering and harvest, it necessarily follows that the formulation of Brown meets the limitation of the intended use.
Regarding claim 6, Brown teaches the composition, but does not explicitly disclose that it is applied to crop plants at least twice between flowering and harvest. However, this would appear to be a recitation of an intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Brown comprises the necessary components disclosed by Applicant and is capable of being applied to plants. Because Brown discloses the formulation claimed, and there appear to be no structural differences imparted by the claimed intended use of application between flowering and harvest, it necessarily follows that the formulation of Brown meets the limitation of the intended use.
Regarding claim 7, Brown teaches the composition, but does not explicitly disclose that it is applied to crop plants at least once before flowering time. However, this would appear to be a recitation of an intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Brown comprises the necessary components disclosed by Applicant and is capable of being applied to plants. Because Brown discloses the formulation claimed, and there appear to be no structural differences imparted by the claimed intended use of application before flowering, it necessarily follows that the formulation of Brown meets the limitation of the intended use.
Regarding claim 8, Brown teaches the composition, but does not explicitly disclose that it is applied during irrigation by spray irrigation. However, this would appear to be a recitation of an intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Brown comprises the necessary components disclosed by Applicant and is capable of being dissolved in water and applied to plants. Because Brown discloses the formulation claimed, and there appear to be no structural differences imparted by the claimed intended use of spray irrigation, it necessarily follows that the formulation of Brown meets the limitation of the intended use.
Regarding claim 9, Brown teaches the composition, but does not explicitly disclose that it increases yield of crop plants. However, this would appear to be a recitation of an intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Brown comprises the necessary components disclosed by Applicant and is capable of being applied to plants. Because Brown discloses the formulation claimed, and there appear to be no structural differences imparted by the claimed intended use of increasing yield, it necessarily follows that the formulation of Brown meets the limitation of the intended use or intended result.
Claim(s) 1, 3-9 and 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Baisone (International Patent Pub. No. 2020/016825 A1, hereinafter “Baisone”) in view of Yang (CN 107216202 A, hereinafter “Yang”) with reference to the provided machine translation (hereinafter “Yang”).
Regarding claim 1, Baisone teaches a nutrient enhancing composition (e.g., a composition based on algal and/or plant extracts used in agriculture) [Baisone Abstract] comprising a variety of plant extracts such as carrot extract [Baisone Page 4 Para. 2], waste flour or bran, [Baisone Page 9 Para. 6] and Vitamin D (which will necessarily increase vitamin D content in plants) [Baisone Page 18 last paragraph], wherein the carrot extract, sweet potato extract and maize flour are present at a concentration of 2 to 5 kg per 100 liters of irrigation water (e.g., the composition is dissolved in water applied during irrigation in the amount of 10 L/ha [Baisone Page 32, “general information and experimental design”] and the plant extracts are present in an amount comprising up to 60% of the composition [Baisone Page 18 Para. 5] which will necessarily overlap with the claimed range of concentrations of extract in irrigation water).
Baisone does not explicitly state that the plant extracts further include (1) sweet potato extract or (2) maize flour.
As to (1), Baisone teaches that “any plant derived material and/or a plant meal and/or a juice . . . can be used as an alternative of or in combination with an extact from plants” [Baisone Page 9 Para. 6]. As such in making the composition of Baisone, one of ordinary skill in the art would look to other plant material sources to combine. Yang teaches that it is known in the fertilizer art to include in liquid, water-containing compositions for application to soil [Yang Abstract & Para. 0010] sweet potato residues or slag (here regarded as reading on sweet potato extracts) [Yang Abstract & Para. 0010]. As such, one of ordinary skill in the art would readily appreciate that sweet potato extract is a standard ingredient in similar compositions, and would be motivated to look to include it based on Baisone’s open suggestion to include any plant material. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include sweet potato extract as taught by Yang in the composition of Baisone.
As to (2), Baisone teaches that the composition includes waste flour [Baisone Page 9 Para. 6] but does not state what specific type of flour should be included. As such, selecting maize flour from the limited number of types of flour available amounts to no more than choosing from a finite number of predictable solutions with 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 implement maize flour as the type of waste flour taught by Baisone.
Regarding claim 3, Baisone as modified by Yang teaches the composition comprising carrot extract [Baisone Page 4 Para. 2] and sweet potato extract [Yang Abstract & Para. 0010] but does not explicitly state that (1) the extracts are derived from cooked and blended carrot and sweet potato or (2) each extract comprises at a weight equal to half of the final extract weight.
As to (1), Baisone further teaches that “in this context, extract means any substance and/or product and/or by-product . . . and/or any derivative obtained from processing and/or the extraction of said donor plants and/or algae and /or microalgae. Preferably said substance/product/by-product/derivative is selected from: extract, meal, pulp, molasses, juice, oil, waste flour, bran, residues and derivatives thereof” [Baisone Page 9 Para. 6]. As such, one of ordinary skill in the art would expect the preparation of the extract of Baisone to include standard steps including heating and reduction in size (see, e.g., a powder product, which demonstrates a step of reduction in size or mashing) [Baisone Page 5 Para. 3]. Because pulp, juice, and extract are used interchangeably by Baisone to refer to the extract component, one of ordinary skill in the art would readily appreciate that the claimed steps of cooking and mashing are not beyond what would have been suggested by Baisone. Therefore, Baisone’s extract is regarded as reading on the cooking and mashing steps as claimed.
As to (2), Baisone teaches that the extracts can be combined [Baisone Page 4 Para. 2]. In making such a combination comprising carrot and sweet potato extract, one of ordinary skill in the art would start by mixing the two at a 1:1 ratio. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the composition of Brown comprising carrot and sweet potato extract to combine said to extracts in a 1:1 ratio. Noting the interpretation set forth by the Examiner on pages 3-4 of this Office Action, this 1:1 ratio meets the claim.
Regarding claim 4, Baisone as modified by Yang teaches the composition further comprising beet root extract [Baisone Page 4 Para. 2].
Regarding claim 5, Baisone as modified by Yang teaches the composition applied to crops [Baisone Page 32, “general information and experimental design”] but does not explicitly state that is applied to the crop plants at least once between flowering and harvest. However, this would appear to be a recitation of an intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Baisone and Yang comprises the necessary components disclosed by Applicant and is capable of being applied to plants. Because Baisone as modified by Yang discloses the formulation claimed, and there appear to be no structural differences imparted by the claimed intended use of application between flowering and harvest, it necessarily follows that the formulation of Baisone as modified by Yang meets the limitation of the intended use.
Regarding claim 6, Baisone as modified by Yang teaches the composition applied to crops [Baisone Page 32, “general information and experimental design”] but does not explicitly state that it is applied to the crop plants at least twice between flowering and harvest. However, this would appear to be a recitation of an intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Baisone and Yang comprises the necessary components disclosed by Applicant and is capable of being applied to plants. Because Baisone as modified by Yang discloses the formulation claimed, and there appear to be no structural differences imparted by the claimed intended use of application at least twice between flowering and harvest, it necessarily follows that the formulation of Baisone as modified by Yang meets the limitation of the intended use.
Regarding claim 7, Baisone as modified by Yang teaches the composition applied to crops [Baisone Page 32, “general information and experimental design”] but does not explicitly state that it is applied to crop plants at least once before flowering time. However, this would appear to be a recitation of an intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Baisone and Yang comprises the necessary components disclosed by Applicant and is capable of being applied to plants. Because Baisone as modified by Yang discloses the formulation claimed, and there appear to be no structural differences imparted by the claimed intended use of application before flowering, it necessarily follows that the formulation of Baisone as modified by Yang meets the limitation of the intended use.
Regarding claim 8, Baisone as modified by Yang teaches the composition dissolved in water and applied to crops [Baisone Page 32, “general information and experimental design”] but does not explicitly state that it is applied by spray irrigation. However, this would appear to be a recitation of an intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Baisone and Yang comprises the necessary components disclosed by Applicant and is capable of being applied to plants. Because Baisone as modified by Yang discloses the formulation claimed, and there appear to be no structural differences imparted by the claimed intended use of application via spray irrigation, it necessarily follows that the formulation of Baisone as modified by Yang meets the limitation of the intended use.
Regarding claim 9, Baisone as modified by Yang teaches the composition applied to crops [Baisone Page 32, “general information and experimental design”], but does not explicitly disclose that it increases yield of crop plants. However, this would appear to be a recitation of an intended use or intended result. Such a recitation limits the claim only to the extent that the prior art must be capable of performing the purpose or intended use. In this case the composition taught by Baisone and Yang comprises the necessary components disclosed by Applicant and is capable of being applied to plants. Because Baisone as modified by Yang discloses the formulation claimed, and there appear to be no structural differences imparted by the claimed intended use of increasing yield, it necessarily follows that the formulation of Baisone as modified by Yang meets the limitation of the intended use or result.
Regarding claim 17, Baisone as modified by Yang teaches the composition wherein the raw carrots and sweet potatoes are in a dried powder form (e.g., the composition can be formulated as a wetting powder or dustable powder, which will necessarily result in the included extracts also being in powder form) [Baisone Page 5 Para. 2].
Regarding claim 18, Baisone includes beetroot extract [Baisone Page 4 Para. 2] but does not explicitly state that the extract is from cooked and mashed beetroot. However, Baisone further teaches that “in this context, extract means any substance and/or product and/or by-product . . . and/or any derivative obtained from processing and/or the extraction of said donor plants and/or algae and /or microalgae. Preferably said substance/product/by-product/derivative is selected from: extract, meal, pulp, molasses, juice, oil, waste flour, bran, residues and derivatives thereof” [Baisone Page 9 Para. 6]. As such, one of ordinary skill in the art would expect the preparation of the extract of Baisone to include standard steps including heating and reduction in size (see, e.g., a powder product, which demonstrates a step of reduction in size or mashing) [Baisone Page 5 Para. 3]. Because pulp, juice, and extract are used interchangeably by Baisone to refer to the extract component, one of ordinary skill in the art would readily appreciate that the claimed steps of cooking and mashing are not beyond what would have been suggested by Baisone. Therefore, Baisone’s extract is regarded as reading on the cooking and mashing steps as claimed.
Regarding claim 19, Baisone as modified by Yang teaches the composition comprising powdered beetroot (e.g., the composition can be formulated as a wetting powder or dustable powder, which will necessarily result in the included extracts also being in powder form [Baisone Page 5 Para. 2]; this powder form is regarded as reading on “dried beetroot powder made from raw beetroot”).
Conclusion
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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/H.E.R./ /JENNIFER A SMITH/Examiner, Art Unit 1731 Primary Patent Examiner, Art Unit 1731