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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/21/2025 has been entered.
Response to Amendment
Applicant's amendment and argument filed 11/21/2025, in response to the final rejection, are acknowledged and have been fully considered. Any previous rejection or objection not mentioned herein is withdrawn.
Claims 1-3, 5-19 are pending of which claims 8-15 and 17-18 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 03/07/2025.
Claims 1-3, 5-7, 16 and 19 are being examined on the merits.
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, 5-7, 16 and 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.
Claims 1 and 3 refer to a biostimulant composition comprising vegetal extract, but in claim 3 the language is unclear as to the compositional make-up. Is Isorhamnetin the only flavonol? Is resveratrol the only hydroxycinnamic acid? There is reference to a main compound and it is unclear if other flavonol or hydroxycinnamic acids are encompassed by the claims. Clarification is requested as to what the composition comprises.
Claims dependent on a rejected claim are rejected for failing to cure the indefiniteness.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
These rejections are new rejections based on the arguments and amendments filed on 11/21/2025.
Claims 1, 3 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Yanyun Zhao (https://news.oregonstate.edu/news/blueberries-coated-leaf-extracts-have-longer-shelf-life) and J. Piljac-Zegarac et. al. (Antioxidant Capacity and Polyphenolic Content of Blueberry (Vaccinium corymbosum L.) Leaf Infusions, J. Med Food 12 (3), 2009, 608-614).
Yanyun teaches “blueberry leaves - which are usually wasted - that can be added to berry coatings, extending their shelf life while adding antioxidants”. Yanyun teaches “blueberry leaf extracts helped delay decay and retain water, which slowed down their natural deterioration” when applied to berries. Yanyun teaches “Blueberry leaves, which have been used as an herbal remedy, contain high levels of antioxidant phenolics - chemical compounds with antimicrobial properties that protect against fungi and bacteria, such as E. coli and Salmonella. To create the coatings, researchers mixed these phenolic extracts with chitosan, a natural preservative that comes from crustacean shells. OSU tested coatings made from leaves that were picked at different stages of berry maturity, and leaf extracts were formulated into five different coating treatments based on varying levels of phenols” (see article). It is clear that Yanyun describes that the blueberry leaf extract which contain high levels of phenolics protect fruits from drying out by retaining water and helps fight against pathogenic fungi and bacteria, thus acting as a biostimulant. The added chitosan is described as a preservative and in this case with the broadest reasonable interpretation a preservative would also act as a stabilizer as the applicant makes no distinction as to what a stabilizer is in the instant specifications.
Zhao does not specifically teach that the extract is a water extract or the number of polyphenols being in the range of 4 to 12 g/L.
Piljac-Zegarac teaches “Antioxidant capacity and polyphenolic content of leaf infusions prepared from six highbush blueberry cultivars (Vaccinium corymbosum L.), one wild lowbush blueberry cultivar (Vaccinium myrtillus L.), and one commercially available mix of genotypes were determined. In order to simulate household tea preparation conditions, infusions were prepared in water heated to 95C. The dynamics of extraction of polyphenolic antioxidants were monitored over the course of 30 minutes. Extraction efficiency, quantified in terms of the total phenol (TP) content, and antioxidant capacity of infusions, evaluated by the ferric reducing antioxidant power (FRAP) and 2,2-diphenyl-1-picrylhydrazyl (DPPH) and 2,20-azinobis (3-ethylbenzthiazoline-6-sulfonic acid) (ABTS) radical scavenging assays, were compared with cultivar type and extraction time. The 30-minute infusions exhibited the highest TP content and antioxidant capacity according to all three assays. Wild blueberry infusion had the highest TP content (1,879mg=L gallic acid equivalents [GAE]) and FRAP values (20,050mM). The range of TP values for 30-minute infusions was 394–1,879mg=L GAE with a mean of 986mg=L GAE across cultivars; FRAP values fell between 3,015 and 20,050mM with a mean of 11,234mM across cultivars. All 30-minute infusions exhibited significant scavenging capacity for DPPH and ABTS radicals, comparable to different concentrations of catechin, gallic acid, and 6-hydroxy-2,5,7,8-tetramethylchromane-2-carboxylic acid” (see abstract).
Regarding claim 3, pertaining to the composition comprising the specific flavonols, flavones and phenols as main components, the water extract of the blueberry leaves of the prior art would be expected to have the same extracted components as the water extract of blueberry leaves being claimed as they appear to be the same extracts.
Therefore it would have been obvious before the effective filing date to persons having ordinary skill in the art to extract the blue berry leaves using water as the solvent because this would extract out polyphenols from the leaves and are known to contribute to antioxidant activities as described by Piljac-Zegarac. Zhao teaches the leaves of blueberries to be high in phenolic content and one can look to Piljac-Zegarac to see that the solvent used for extraction of phenolic content is indeed water. Neither piece of art teaches the number of polyphenols to be at the range described however increasing the polyphenols to be in this range would have been prima facie obvious for increasing the scavenging potential and antifungal properties of the blueberry leaf extract and is an optimization well within the purview of the skilled artisan. Additionally, as discussed in MPEP section 2144.05(II)(A), “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. ‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).” In this particular case, there is no evidence that the claimed concentration of the ingredients produces an unexpected result. Thus, absent some demonstration of unexpected results from the claimed parameter, this optimization of ingredient concentration would have been obvious before the effective filing date of applicant’s claimed invention.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Yanyun Zhao (https://news.oregonstate.edu/news/blueberries-coated-leaf-extracts-have-longer-shelf-life) and J. Piljac-Zegarac et. al. (Antioxidant Capacity and Polyphenolic Content of Blueberry (Vaccinium corymbosum L.) Leaf Infusions, J. Med Food 12 (3), 2009, 608-614)
as applied to claims 1, 3 and 19 above, and further in view of Katzbauer, (Properties and applications of xanthan gum, Polymer Degradation and Stability 59, 1998, 81-84).
Zhao and Piljac-Zegarac’s combined art teach the instant invention however are silent on the stabilizer being selected from the list in instant claim 5.
Katzbauer teaches that xanthan gum is a natural high molecular weight polysaccharide produced by a fermentation process. Due to its exceptional rheological properties it is a very effective stabilizer for water-based systems and has many applications coverings a broad range, one such application is in agricultural flowables (see abstract). Particularly for agricultural chemicals, the chemicals need to be uniformly distributed even after long-term storage. Xanthan gum improves the spray-ability of plant control agents and reduces the drift of chemicals (see 5.3 technical applications, page 83).
Therefore it would have been obvious to persons having ordinary skill in the art before the effective filing date to use xantham gum as a stabilizer in the composition taught by Zhao and Piljac-Zegarac because it can improve the spray-ability of plant control agents and reduces the drift of chemicals particularly for agricultural chemicals.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Yanyun Zhao (https://news.oregonstate.edu/news/blueberries-coated-leaf-extracts-have-longer-shelf-life) and J. Piljac-Zegarac et. al. (Antioxidant Capacity and Polyphenolic Content of Blueberry (Vaccinium corymbosum L.) Leaf Infusions, J. Med Food 12 (3), 2009, 608-614) as applied to claims 1, 3 and 19 above, and further in view of USDA (chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.ams.usda.gov/sites/default/files/media/Citric%20Acid%20TR%202015.pdf, 2015, Feb. 17).
Zhao and Piljac-Zegarac’s combined art teach the instant invention however are silent on the preservative being selected from the list in instant claim 6.
USDA teaches that citric acid has a wide variety of uses, some of which can provide preservative functions (see page 20, lines 689-690). “The most common classical preservative agents are the weak organic acids, for example acetic, lactic, benzoic and sorbic acid (Brul & Coote 1999). These molecules inhibit the outgrowth of both bacterial and fungal cells, and sorbic acid is also reported to inhibit the germination and outgrowth of bacterial spores (Blocher & Busta 1985; Sofos & Busta 1981)” (see page 20, lines 699-702).
Therefore it would have been obvious to persons having ordinary skill in the art before the effective filing date to use acetic or ascorbic acid as a preservatives in the composition taught by Zhao and Piljac-Zegarac because these weak organic acids are common for inhibiting fungal and bacterial growth.
Response to Arguments
Applicant's arguments filed 11/21/2025 have been fully considered but they are not persuasive. The applicant argument to the previously relied upon art is moot as the Office relies on new art to show that the instant invention would have been obvious. The applicant also argues that the relied upon art does not teach the number of polyphenols being at the instantly claimed range. As discussed in the above rejection this optimization of increasing the polyphenol content is well within the purview of a skilled artisan especially given that these are the active components known for acting as a biostimulant. The art recognizes that the phenolic content of the blueberry leaves is what act as antioxidants and antimicrobials to pathogenic fungi and bacteria thus allowing for the berries which they get applied to inhibit microbial growth. Adjusting or increasing this content would have been prima facie obvious to increase the radical scavenging and antimicrobial potential and it would have been obvious to increase these amounts to be applied to large batches of berries/fruit.
Conclusion
Currently no claims are allowed.
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JACOB A BOECKELMANExaminer, Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655