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 .
Election/Restrictions
Claims 13-18 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on August 22, 2025.
Claims 1-12 have been 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 4-6, 8, 9-11, 16 and 18 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 claims 4-6, 9-11, 16 and 18, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Similarly, in claims 8, the phrase “such as” renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2 and 4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhan (CN 106085449 A, published November 16, 2016, previously cited).
Claim 1 is directed to a nematostatic composition comprising (i) a marine alga or a marine alga extract and (ii) a carboxylic acid.
Zhan discloses an organic phosphorus pesticide composition comprising green algae and citric acid (carboxylic acid). See translation, abstract; the present claims 1, 2, 4 and 6.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. See In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." See In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. Since the Zhan composition has the same structural limitations of the presently claimed subject matter, the nematostatic property of the present composition must be also inherently present in the prior art composition.
Claims 1, 2 and 4-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Okamoto et al. (JPH01279814 A, published on November 10, 1989) (“Okamoto” hereunder).
Okamoto discloses a fungicide composition for feed, comprising a seaweed propionic acid or a sodium or potassium salt thereof. Okamoto further teaches that Laminariaceae powder was mixed with propionate at concentration of 7.5 wt %; the reference further teaches that propionic acid or its salts is used in an amount ranging from 1-20 wt %. See translation, abstract; present claims 1, 2, 8. Brown algae such as Sargassum species are specifically mentioned. See present claim 5.
Since the Okamoto composition has the same structural limitations of the presently claimed subject matter, the nematostatic property of the present composition must be also inherently present in the prior art composition.
The reference teaches that that the seaweed component is dried and crushed or powdered. See present claim 6.
Claims 1-3, 7 and 8 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Wu (CN107616307 A, published January 23, 2018).
Wu discloses aquatic feed composition for loach, comprising 5-35 parts of seaweed powder and 6-19 parts of calcium formate. Since Wu composition has the same structural limitations of the presently claimed subject matter, the nematostatic property of the present composition must be also inherently present in the prior art composition.
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.
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 1-7 and 9-12 are rejected under 35 U.S.C. 103 as being unpatentable over O’Sullivan et al. (US 20190021324 A1, published on January 24, 2019) (“O’Sullivan” hereunder) and He et al. (US 20120015809 A1, published on January 19, 2012) (“He” hereunder).
O’Sullivan teaches a pesticide composition for controlling plant pathogenic nematode population and/or improving soil microbial dynamics without posing a risk to the surrounding ecosystem, the composition comprising at least one glucan, at least one fucan and at least one mannitol extracted from brown macroalgae. See [0040-0047]. The reference teaches that the composition can be mixed with fertilizers as a tank mix or in the presence of other active ingredients such as pesticides, nematicides, etc. See [0101, 0123].
O’Sullivan fails to specifically disclose using a carboxylic acid.
He teaches a pesticide composition effective in controlling nematodes and other plant pathogens in soil, the composition comprising 15 50 % v/v of formic acid, acetic and/or their salts and 10-40 % w/v citric acid as active ingredients. See [0011, 0014]. The reference teaches that the composition is effective in pest control without significant phytotoxicity to desired plants. See [0012]. He teaches that water, organic solvents including ethanol, etc., can be used as the carrier. See [0057]. The reference teaches further adding to the composition other pesticidal agents. See reference claims 5 and 6.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the present application to modify the teachings of O’Sullivan and incorporate to the composition formic acid, acetic acid, and/or their salts, and citric acid as motivated by He. The skilled artisan would have been motivated to do so, since He teaches these acids can be used without subjecting the plants to significant phytotoxicity. Since O’Sullivan suggests adding additional active ingredients to the marine algae extract composition, and as both O’Sullivan and He teach using water as the carrier for the algae extracts and carboxylic acids, respectively, the skilled artisan would have had a reasonable expectation of successfully producing a stable and enhanced composition with fortified nematostatic activities. See present claims 1-3, 7.
Regarding claims 4-5, O’Sullivan teaches using the extracts from brown algae of Ascophyllum nodosum, Laminaria saccharina, Laminaria hyperborea, Laminaria digitata or Sargassum species, etc. [0129, 0134].
Claim 6 requires the marine alga extract in dry form. O’Sullivan teaches that the alga extraction method requires centrifugation and ultra-filtration, which implies that the final extract product would be in dry form. See [0181].
Regarding claim 9, He teaches that anhydrous citric acid is used.
Regarding present claim 10, O’Sullivan teaches that the composition can be mixed with fertilizers as a tank mix; combining the composition with at least one fertilizer as taught by the reference to promote the plant health would have been prima facie obvious.
Regarding claim 11, although the reference does not specifically disclose the form of fertilizers, the examiner takes official notice that fertilizers are commonly provided in solid form; one of ordinary skill in the art before the effective filing date of the present application would have been obviously motivated to use commonly available fertilizers to use in conjunction with the composition of O’Sullivan and He.
Regarding claim 12, O’Sullivan teaches that the at least 60 grams/Hectare or 60-400 g/Ha of the at least one glucan, at least one fucan and at least one mannitol. See [0080-0082, 0089]. He teaches that its composition comprises 15 50 % v/v of formic acid, acetic and/or their salts and 10-40 % w/v citric acid as active ingredients. Generally, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration 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.” See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). In this case, although O’Sullivan does not specifically disclose the percentage of the active ingredient in a stock composition, discovery of such concentration ranges would have been well within ordinary skill in the art. As both marine algae extract and carboxylic acids are used for the same purposes as nematostatic agents, it is viewed that one of ordinary skill in the art would start by using similar or compatible concentrations ranges as an initial benchmark and optimize for differences in potency, stability and formulation compatibility.
Conclusion
No claims are allowed.
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/GINA C JUSTICE/ Primary Examiner, Art Unit 1617