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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 01/23/2026 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 01/29/2026 has been considered by the examiner.
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, 4-6 and 9 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 recites the following trademark/trade names “rheocin”, “BOC polyhydroxystearic acid” and “BTC bentonite”. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe, respectively, “a processed castor oil derivative of the brands Rheobyk or Rheocin”, “bentonite from the company BTC Europe” “a polyhydroxystearic acid from the company BOC Sciences” and, accordingly, the identification/description is indefinite. For the purposes of examination, these limitations are interpreted as “a castor oil derivative”, “bentonite” and “polyhydroxystearic acid”, respectively.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Zhou (CN 108029280) in view of Shigeo (FR 2681593).
In regard to claim 1, Zhou discloses a coating comprising:
a carrier, wherein the carries is an aqueous-based carrier comprising 10% to 90% by weight of water and 10% to 90% by weight of glycol or polyglycol or a combination thereof (e.g. 4 parts ethylene glycol, 5 parts water = 44% by weight glycol, 55% by weight water) [para. 0014, step (6)]; and
one or more biostimulants in an aqueous media (e.g. 2-3 parts plant growth regulator in deionized water) [0014],
one or more micronutrient dispersants (e.g. carboxymethyl cellulose, diatomaceous earth) [0014]; and
one or more micronutrients selected from zinc, copper, boron, and magnesium (e.g. 1 part of ferrous sulfate, 1 part of ammonium molybdate, 1 part of zinc sulfate, 0.4 parts of manganese sulfate) [0014].
Although Zhou does not explicitly describe the intended use as fertilizer coating, the preamble statement and the intended use of the emulsion composition does not limit the body of the claim(s) which fully and intrinsically set forth all of the limitations of the claimed invention. The preamble merely states, for example, the purpose or intended use of the invention [MPEP 2111.02 II.]. Furthermore, Zhou’s seed coating composition is capable of use as a fertilizer coating [To satisfy an intended use limitation which is limiting, a prior art structure which is capable of performing the intended use as recited in the preamble meets the claim. See, e.g., In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431].
Zhou does not explicitly disclose wherein the one or more micronutrient dispersants are selected from the group recited in the claim. Shigeo is directed to a micronutrient fertilizer coating [abstract; claims]. In order to regulate the degradation and decomposition time of the coating it is possible to use mineral particles such as clay, bentonite, diatomaceous earth [pg. 7, lines 19-29]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute an art recognized equivalent (e.g. bentonite) for the equivalent set forth in Zhou (e.g. diatomaceous earth) for the same purpose (e.g. control degradation and decomposition of the coating). One of ordinary skill in the art would have been motivated to perform simple substitution of one known element for another to obtain predictable results.
Claims 1, 4-6 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Daniels (US Patent Publication No. 2010/0316684 A1).
In regard to claims 1 and 4, Daniels teaches a formulation suitable for dispensing from a pump spray container [0036] comprising an aqueous media stabilized via a pickering emulsion (e.g. Pickering emulsion is an emulsion stabilized by means of solids of the oil in water type) [0038] comprising:
a carrier, wherein the carrier is an aqueous-based carrier (e.g. aqueous phase) [0051] comprising water and glycol (e.g. the aqueous phase can contain adjuvants such as lower diols) [0052],
one or more biostimulants (e.g. active agents such as vitamins, antioxidants, polyphenols) [0062] in an aqueous media (e.g. said emulsion formulation is a carrier for an active agent) [clm. 15],
wherein the emulsion contains from 10 to 50 weight percent oil phase [0050] and it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that when the oil phase consists of glycols (e.g. propylene glycol or butylene glycol) [0047], the aqueous phase (e.g. water) would be present in amounts ranging from about 50 to 90 percent by weight. Daniels teaches the amount of oil and water phase to be an art recognized result effective variable depending on the type of emulsion desired (e.g. in case that the two liquids are water and oil and the oil droplets are finely dispersed in water, the emulsion is an oil-in-water emulsion. The basic character of an O/W emulsion is defined by the water. In case of a water-in-oil emulsion, the opposite principle applies wherein the basic character is here defined by the oil.) [0003]. One of ordinary skill in the art would have been motivated to choose the instantly claimed ranges through process optimization, since it has been held that there the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Although Daniels does not explicitly describe the intended use as fertilizer coating, the preamble statement and the intended use of the emulsion composition does not limit the body of the claim(s) which fully and intrinsically set forth all of the limitations of the claimed invention. The preamble merely states, for example, the purpose or intended use of the invention [MPEP 2111.02 II.]. Furthermore, Daniels’ sprayable composition is capable of use as a fertilizer coating [To satisfy an intended use limitation which is limiting, a prior art structure which is capable of performing the intended use as recited in the preamble meets the claim. See, e.g., In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431].
In regard to claims 5-6, Daniels teaches the formulation of claim 1 wherein aqueous-based carrier and the biostimulants are emulsified with the oil-based media (e.g. pickering emulsion is a carrier for active agent) [0031], further comprising a rheological modifier (e.g. thickening agents) [0053].
In regard to claim 9, Daniels teaches the formulation of claim 5, wherein oil based-based media, the micronutrient dispersants, the micronutrients and the biostimulants in the aqueous media are emulsified (e.g. the Pickering emulsion is prepared by 1. Providing a liquid oil phase. Suspending the solid emulsifier(s) in the oil phase in order to obtain a suspension of solid emulsifier, 3. Providing an aqueous phase, 4. Homogenizing the aqueous phase together with the suspension of solid emulsifier in order to obtain a Pickering emulsion.) [0073-0077].
Allowable Subject Matter
Claims 19-22 are allowed. The following is a statement of reasons for the indication of allowable subject matter:
Applicant’s amendments to the claims (01/23/2026) overcome the previously presented (10/23/2025) 35 U.S.C. 112(d) rejection of claims 19-22. Furthermore, the prior art references do not teach or render obvious all the cumulative limitations of claims 19-22 with particular attention to the weight percentage of components of the aqueous carrier, micronutrient dispersant, micronutrient, and biostimulant.
Response to Arguments
The rejection of claims 19-22 under 35 U.S.C. 112(d) is withdrawn in view of Applicant’s amendments (01/23/2026) to the claims
Applicant’s arguments, filed 01/23/2026, have been fully considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 February 12, 2026