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 .
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 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.
Priority
The instant application 17/812,693, filed 07/14/2022, claims domestic benefit to provisional U.S. Patent Application No. 63/203,327, filed 07/16/2021.
Status of Application and Claims
The preliminary amendment filed 07/14/2022 is acknowledged. Claims 2-14, 16-23, and 36-37 are amended. Claims 38-39 are newly added. Claims 1-39 are currently pending.
Election/Restrictions
Applicant's election with traverse of Group III, claims 30-35 in the reply filed on 09/19/2025 is acknowledged. The traversal is on the grounds that Applicant believes groups III and V should be examined together. Applicant states that group V, claims 38 and 39, require a biostimulant with the same components of claim 30, and Applicant alleges that the Examiner has not demonstrated an appropriate explanation demonstrating a serious burden, and has simply stated a conclusion without reference to any claim features represented by any of the groups (Response to Election Requirement 09/19/2025 pp. 1-3). Applicant also argues that any search of claims of group III, should include references classified in A01N 37/46 (plant growth regulators containing organic compounds containing a carbon atom having three bonds to hetero atoms with at the most two bonds to halogen), which is the classification identified by the Examiner for Group V, claims 38 and 39.
This is not found persuasive because the Examiner has sufficiently demonstrated the burden on searching groups III and V by (1) demonstrating their differing classifications (p. 3 of the requirement filed 04/16/2025) and (2) discussing the difference in their subject/statutory matter (group III is a biostimulant composition, group V is a process of applying biostimulant, discussed on p. 5 of requirement filed 04/16/2025). If the Examiner were to search group V in addition of group III, the Examiner would search not only the biostimulant of group III, but also application methods including irrigation and misting, which significantly diverge from the subject matter of group III. Because of the separate status in view of differing classification, as well as the separate status due to divergent subject matter and requirement of a different field of search (a biostimulant comprising amino acids and phytohormone in group III, and a method of applying biostimulant using irrigation or mister in group V) there would be a serious search and/or examination burden, as is addressed on pp. 6-7 of the requirement filed 04/16/2025.
In the reply filed 09/19/2025, Applicant elected, without traverse, a single species of phytohormone to be trans-zeatin riboside. This species election is acknowledged.
The restriction requirement is still deemed proper and is therefore made FINAL.
Claim 1-29 and 36-39 are 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. Applicant timely traversed the restriction (election) requirement in the reply filed on 09/19/2025.
Additionally, claims 32-35 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species of phytohormone, there being no allowable generic or linking claim. Election of the species of phytohormone was made without traverse in the reply filed on 09/19/2025.
Claims 30-31 are examined on the merits herein.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 07/10/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner, except where noted. Three documents were filed with NPL codes along with the IDS submitted on 07/10/2025, but these three documents are not addressed in the IDS; two appear to be original language textbook chapters and one appears to be a Google Machine Translation of one of the chapters (chapter II). Additionally, in the IDS 07/10/2025, NPL entries labeled number 043 and 044 are not considered by the Examiner because no copy of either NPL document has been submitted for either IDS entry.
Claim Interpretation
Claim 30 lines 3-4 recite “free glutamic acid and glutamine having a weight percent of about 30% to about 40% of the total free amino acid weight in the biostimulant.” This recitation is interpreted as stating that the combined weight of glutamic acid and glutamine equals about 30% to about 40% of the total free amino acid weight of the biostimulant. This interpretation is supported by the instant specification pp. 12-13 [0114] and Table 1, which groups glutamic acid and glutamine together when discussing a minimum and maximum concentration range within the amino acid profile.
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.
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.
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 30 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over CN 104909901 A (Zhu, Y.) published 09/16/2015 (cited with machine translation in PTO-892) in view of Noroozlo, Y. A. et al. (2019). “Stimulation Effects of Foliar Applied Glycine and Glutamine Amino Acids on Lettuce Growth.” Open Agriculture, 4, 164-172 (cited in PTO-892) and Basra, S.; Lovatt, C. (2016). “Exogenous Applications of Moringa Leaf Extract and Cytokinins Improve Plant Growth, Yield, and Fruit Quality of Cherry Tomato.” Hortechnology, 26(3), 327-337 (cited in PTO-892).
Zhu exemplifies a sugar alcohol chelating agent-amino acid calcium fertilizer for use during apple fruit season, the fertilizer comprising 10g glycine, 10g lysine, 20g glutamic acid, 5g alanine, 5g valine, and 5g of proline ([0038]-[0039]). A plant fertilizer reads on a biostimulant for stimulating growth of a plant. The total weight of the amino acids in the fertilizer is calculated to be 55g; therefore, the weight percentage of glycine is 18.18% by weight of the amino acids in the fertilizer, and the weight percentage of glutamic acid is 36.36% by weight of the amino acids in the fertilizer, which read on the amounts for free glycine and free glutamic acid in the biostimulant for stimulating growth of a plant in claim 30. The weight percentage of lysine is 18.18% by weight of the amino acids in the fertilizer. Zhu teaches that, after using this fertilizer three times in a row with an interval of 10 days, the apple yield increased more than 20% compared with the control, and the commercial rate reached more than 93% ([0041]).
Zhu exemplifies another fertilizer wherein the amino acid content is 10g glycine, 20g lysine, 10g glutamic acid, 5g alanine, 5g valine, and 5g proline ([0033]). The total weight of the amino acids in the fertilizer is calculated to be 55g; therefore, the weight percentage of lysine in this fertilizer is 36.36% by weight of the amino acids in the fertilizer. Zhu teaches that, after using this fertilizer three times in a row with an interval of 10 days, the apple yield increased more than 16% compared with the control, and the commercial rate reached more than 95% ([0036]).
Zhu differs from the instantly claimed invention in that it fails to teach that (1) the combination of glutamic acid and glutamine has a weight percent of about 30% to about 40% of the total free amino acid weight in the biostimulant, (2) the lysine has a weight percent of about 40% to about 60% of the total free amino acid weight in the biostimulant, and (3) there are one or more phytohormones selected from the group consisting of cytokinins, abscisic acid, jasmonates, auxins, and phenolics in the biostimulant, as recited in claim 30. Zhu therefore fails to teach the one or more phytohormones is a cytokinin selected from a group which includes trans-zeatin riboside (tZR), the Applicant’s elected species of phytohormone, as recited in claim 31.
Noroozlo teaches that exogenous application of amino acids may have stimulation effects on plant growth and quality (Abstract lines 1-4). Noroozlo teaches that foliar treatment of a 1:1 ratio of glycine and glutamine on lettuce results in significant increase in leaf total chlorophyll content (Abstract lines 9-11). Noroozlo teaches that plant root length is also significantly increased in plants sprayed with the 1:1 ratio of glycine and glutamine (p. 168 L. Col. 2nd para).
Basra teaches exogenous application of Moringa leaf extract (MLE) and cytokinins to improve plant growth, yield, and fruit quality of cherry tomato (Title). Basra teaches that cherry tomato plants treated with root-applied trans-zeatin or MLE produced the greatest number of fruit per plant and significantly more than untreated control plants, and root-applied t-Z and MLE increased yield as grams of fruit per plant; furthermore, foliar and root-applied MLE increases fruit concentrations of soluble sugars, protein, antioxidants, and lycopene compared with fruit from untreated control plants (Abstract). Basra teaches the pool of cytokinins in moringa leaves are predominantly composed of cytokinin nucleotides including iPA, t-ZR (trans-zeatin riboside), c-ZR and dhZR (p. 333 “Moringa Leaf Hormone Concentrations” 1st para). Basra teaches that growth promoting effects of MLE are likely due to the pool of cytokinins which included trans-zeatin riboside (t-ZR) (p. 336 2nd para).
Regarding the inclusion of glutamine in the amount recited in claim 30, it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the claimed invention, to add glutamine in an equal amount to the amount of glycine present in the fertilizer of Zhu, and arrive at the instantly claimed invention. Noroozlo establishes that a 1:1 ratio of glycine and glutamine imparts beneficial results to plants treated with the glycine/glutamine combination. Thus, the ordinarily skilled artisan would have been motivated to add glutamine to the fertilizer of Zhu to generate a 1:1 ratio of glycine and glutamine, in order to harness the beneficial effects of this amino acid pairing when using the fertilizer to stimulate apple fruit growth. The ordinarily skilled artisan would have a reasonable expectation of success adding glutamine to the fertilizer of Zhu because glutamine is another amino acid, like the amino acids present in the fertilizer of Zhu, which is shown to be beneficial towards the stimulation of plant growth. In adding 10 g of glutamine to be in a 1:1 ratio with the 10g of glycine present in the fertilizer of Zhu, the resulting combined amount of glutamine and glutamic acid would be 30 g of a now 65 g total amount of amino acids in the fertilizer. This would result in a concentration of the combination of glutamic acid and glutamine being 46% by weight of the total amino acid content of the fertilizer, which is close to the upper limit of the claimed amount for both. Per MPEP 2144.05 (I), a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). Additionally, "where 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).
Regarding the amount of lysine in the biostimulant of claim 30, it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the claimed invention, to perform routine optimization on the amount of lysine within the amino acid profile of the fertilizer of Zhu, with the purpose of optimizing the fertilizer’s effects on apple yield and commercial rate. Zhu establishes that the amount of lysine within the fertilizer may be altered between 10g and 20g, and further establishes that the amount change of lysine results in varying performance on apple fruit regarding apple yield and commercial rate. Thus, Zhu establishes the amount of lysine within the fertilizer is a results-effective variable, and upon changing the concentration of lysine in the fertilizer, a change in apple yield and commercial rate may be observed. Zhu establishes a finite number of workable solutions (between 10g and 20g of lysine) with which the ordinarily skilled artisan may perform routine optimization with a reasonable expectation of success. In doing so, the ordinarily skilled artisan would reach percentages for lysine by weight of the total amino acid content (36.36%) which are close to the claimed concentration range for lysine in claim 30. Per MPEP 2144.05 (I), a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). Additionally, "where 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).
Regarding the inclusion of a phytohormone, particularly the cytokinin trans-zeatin riboside, in the biostimulant of claims 30 and 31, it would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the instantly claimed invention, to combine the fertilizer rendered obvious by the combined teachings of Zhu and Noroozlo with the moringa leaf extract (MLE) taught by Basra, which contains cytokinins including trans-zeatin riboside, and arrive at the instantly claimed invention. The ordinarily skilled artisan would have been motivated to do so because the MLE extract of Basra demonstrates beneficial effects to the fruits of tomato plant upon root or foliar application, which the ordinarily skilled artisan would recognize would also prove beneficial for the fruits of apple trees (the designated use of the fertilizer of Zhu). The ordinarily skilled artisan would find a reasonable expectation of success combining the fertilizer with the MLE extract of Basra because both are used to improve the fruit production of plants, and there would appear to be no deleterious effects upon combination of the fertilizer and the MLE extract. Additionally, per MPEP 2144.06, "[i]t is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted). In the instant case, both the fertilizer of Zhu and the MLE extract of Basra are useful for the same purpose of improving fruiting of plants. Thus, it would be logical to combine the two and form a third composition also useful for improving fruiting of plants.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 30-31 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 31 and 33-34 of copending Application No. 19/284,516 in view of Basra, S.; Lovatt, C. (2016). “Exogenous Applications of Moringa Leaf Extract and Cytokinins Improve Plant Growth, Yield, and Fruit Quality of Cherry Tomato.” Hortechnology, 26(3), 327-337 (cited in PTO-892).
App’516 claims a biostimulant composition for applying to plants, the biostimulant composition comprising: free amino acids comprising: free glutamic acid and glutamine having a weight percent of about 30% to about 40% of the total free amino acid weight in the biostimulant composition, glycine having a weight percent of about 10% to about 20% of the total free amino acid weight in the biostimulant composition, and lysine having a weight percent of about 40% to about 60% of the total free amino acid weight in the biostimulant composition; at least one oligopeptide; and a nutrient (claim 31). App’516 claims the biostimulant further comprises a phytohormone selected from the group consisting of cytokinins, abscisic acids (ABAs), jasmonates, auxins, and phenolics (claims 33-34). The combination of App’516 claims 31 and 33-34 read on the entirety of instant claim 30.
App’516 only differs from the instantly claimed invention in that it fails to claim that the phytohormone is the Applicant’s elected species of phytohormone, trans-zeatin riboside, as recited in instant claim 31.
Basra teaches exogenous application of Moringa leaf extract (MLE) and cytokinins to improve plant growth, yield, and fruit quality of cherry tomato (Title). Basra teaches that cherry tomato plants treated with root-applied trans-zeatin or MLE produced the greatest number of fruit per plant and significantly more than untreated control plants, and root-applied t-Z and MLE increased yield as grams of fruit per plant; furthermore, foliar and root-applied MLE increases fruit concentrations of soluble sugars, protein, antioxidants, and lycopene compared with fruit from untreated control plants (Abstract). Basra teaches the pool of cytokinins in moringa leaves are predominantly composed of cytokinin nucleotides including iPA, t-ZR (trans-zeatin riboside), c-ZR and dhZR (p. 333 “Moringa Leaf Hormone Concentrations” 1st para). Basra teaches that growth promoting effects of MLE are likely due to the pool of cytokinins which included trans-zeatin riboside (t-ZR) (p. 336 2nd para).
It would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the instantly claimed invention, to combine the biostimulant composition of App’516 with the moringa leaf extract (MLE) taught by Basra, which contains phytohormones such as cytokinins including trans-zeatin riboside, and arrive at the instantly claimed invention. The ordinarily skilled artisan would have been motivated to do so because the MLE extract of Basra demonstrates beneficial effects to the fruits of tomato plant upon root or foliar application, which the ordinarily skilled artisan would recognize would also prove beneficial for the biostimulant composition claimed by App’516. The ordinarily skilled artisan would find a reasonable expectation of success combining the biostimulant composition of App’516 with the MLE extract of Basra because both are used to apply phytohormone to plant, and there would appear to be no deleterious effects upon combination of the biostimulant of App’516 and the MLE extract. Additionally, per MPEP 2144.06, "[i]t is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted). In the instant case, both the biostimulant of App’516 and the MLE extract of Basra are useful for the same purpose of providing phytohormone to plants. Thus, it would be logical to combine the two and form a third composition also useful for providing phytohormone to plants.
This is a provisional nonstatutory double patenting rejection.
Conclusion
No claims are allowed.
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/SOPHIA MARIE TAYLOR/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616