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 .
Applicants amendment filed 11/18/2025 has been entered. Claims 128, 129, 143 and 147 were amended. Claims 127-132 and 134-157 are pending. Claims 132, 137 and 149-157 are withdrawn. Claims 127-131, 134-136 and 138-148 are under examination
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/18/2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
Withdrawn rejections
Applicant's amendments and arguments filed 11/18/2025 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn.
Applicants amendment to claim 129 has necessitated a new rejection.
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.
Claim 129 is 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.
Claim 129 recites the limitations "the osmoprotectant", “the anti-dessiccant” and “the anti-respirant” in reference to a kit. There is insufficient antecedent basis for this limitation in the claim.
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 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.
Claims 127-131, 134-136, 138-146 and 148 are rejected under 35 U.S.C. 103 as being unpatentable over Svec et al. (US 6,241,795; patented Jun 5, 2001) in view of Vriesema et al. (8,419,820; published July 29, 2010) as evidenced by Smith et al. (US 2012/0103051; published May 3, 2012).
Applicant’s Invention
Applicant claims an agricultural composition comprising and osmoprotectant comprising proline, an anti-desiccant potassium phosphate tribasic, and an anti-respirant comprising alkyl phenol ethoxylate (claim 127).
Applicant also claims an agricultural composition comprising and osmoprotectant comprising proline, an anti-desiccant potassium phosphate tribasic, an anti-respirant comprising non-ionic surfactant and a second osmoprotectant betaine (claim 128)
Applicant claims kit comprising an osmoprotectant comprising proline, an anti-desiccant potassium phosphate tribasic, and an anti-respirant comprising a non-ionic surfactant, and optionally a second osmoprotectant betaine (claim 127).
Determination of the scope and the content of the prior art
(MPEP 2141.01)
With respect to claims 127-129, 135, 136, 138-142, 145, 146 and 148 of the instant application, Svec et al. teach a dry, concentrated fertilizer comprising vitamins and amino acids which is readily water-soluble and a method of applying the solubilized dilute fertilizer to crops to enhance crop production (abstract). The amino acids are present in an amount of about 0.01% to about 10%, by weight of the fertilizer and are selected from betaines, proline and mixtures thereof (column 2, line 66 through column 3, line 7). The adjuvant used in the dry fertilizer include alkoxylated alkylphenol resins in an amount which totals about 0.1 to about 10%, by weight of the fertilizer (column 3, lines 28-47). Additionally, the macronutrients include nitrogen, phosphorus and potassium compounds selected from potassium phosphate in a total amount of about 10% to about 80%, by weight of the dry fertilizer (column 3, line 48 through column 4, line 7). A variety of secondary and micronutrients such as magnesium nitrate may also be added in total amounts of about 1% to about 3% by weight of the total dry formulations (column 4, lines 8-17). Other additives include wetting-agents, surfactants and other additives known to one of ordinary skill (column 4, lines 22-25). The dry, water soluble fertilizer is useful for foliar application and the amino acids are provided by seaweed extracts purchased from dry or liquid forms (column 4, lines 39-67).
The diluted form is prepared by dissolving the dry formulation in water at a ratio of 1 part fertilizer to about 4 to about 600 parts water or more, generally 3-10 pounds per acre when applied by foliar application (column 5, lines 6-15). Therefore, the concentrate and ready to use formulations are contemplated by Svec et al.
With respect to claim 129, it is well-settled law that combining printed instructions and an old product into a kit will not render the claimed invention nonobvious even if the instructions detail a new use for the product. See In re Ngai, 367 F.3d 1336, 1339, 70 USPQ2d 1862, 1864 (Fed. Cir. 2004). Therefore a kit comprising an osmoprotectant comprising proline, an anti-desiccant potassium phosphate tribasic, and an anti-respirant comprising a non-ionic surfactant, and optionally a second osmoprotectant betaine would have been prima facie obvious to one of ordinary skill in the art.
With respect to claims 143 and 144, Svec et al. encompasses betaine (MW 117.15 g/mol) and proline (MW 115.13 g/mol) in a concentration of about 5 µM to about 100mM total molarity since a dry fertilizer comprising 1% betaine and 1% proline diluted in a ratio of 100 mL of water would be within the concentration range.
With respect to claim 130, 131 and 134 Svec et al. teaches proline and betaine but does not specify L-proline or betaine hydrochloride, however, as evidenced by Smith et al. (US 2012/0103051; published May 3, 2012) fertilizer compositions comprising amino acids generally comprise betaine hydrochloride and L-proline [0025]. Therefore, selecting L-proline and betaine hydrochloride would have been prima facie obvious to one of ordinary skill in the art since they are commercially available sources of betaine and proline.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Svec et al. teach potassium phosphates but does not specify potassium phosphate tribasic. It is for this reason that Vriesema et al. is joined.
Vriesema et al. teach fast dissolving water soluble fertilizers which demonstrate improved solubility (abstract). Tripotassium phosphate (tribasic) is known as an anti-caking agent (column 2, lines 13-34). The water-soluble fertilizers preferably include Tripotassium phosphate (tribasic) as a basic fertilizer in the solid fertilizer product (column 7, lines 26-34; Table 2). The basic fertilizer comprises at least 5% of the composition in the preferred embodiments (column 10, lines 2-6).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Svec et al. and Vriesema et al. both teach water soluble fertilizers comprising potassium phosphates. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Svec et al. and Vriesema et al. to include potassium phosphate tribasic (tripotassium phosphate) with a reasonable expectation of success. One of ordinary skill would have been motivated at the time of filing to combine the teachings of Svec et al. and Vriesema et al. to further include tribasic potassium phosphate because Vriesema et al. teach that tribasic potassium phosphate is preferred and has anti-caking properties which will allow the product to more readily dissolve in solution.
Claim 147 is rejected under 35 U.S.C. 103 as being unpatentable over Svec et al. (US 6,241,795; patented Jun 5, 2001) in view of Vriesema et al. (8,419,820; published July 29, 2010), as applied to claims 127-131, 134-136, 138-146 and 148 in view of Wu et al. (CN102293137; published December 28, 2011).
Applicant’s Invention
Applicant claims an agricultural composition comprising and osmoprotectant comprising proline, an anti-desiccant potassium phosphate tribasic, and an anti-respirant comprising alkyl phenol ethoxylate (claim 127).
Applicant also claims an agricultural composition comprising and osmoprotectant comprising proline, an anti-desiccant potassium phosphate tribasic, an anti-respirant comprising non-ionic surfactant and a second osmoprotectant betaine (claim 128)
Determination of the scope and the content of the prior art
(MPEP 2141.01)
The teachings of Svec et al. and Vriesema et al. are addressed in the above 103 rejection.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Svec et al. and Vriesema et al. do not teach the addition of a fungicide that is a conazole claimed by claim 147. It is for this reason that Wu et al. is joined.
Wu et al. teach a method of treating kiwi disease with a solid or biological fertilizer nitrogen-phosphorus-potassium, amino acids including proline and propiconazole(summary of invention, paragraph 2-6). The control agent comprises a solid biological fertilizer, a liquid foliar fertilizer and a drying agent composed of amino acids and 25% propiconazole (detailed description, paragraph 2). The amino acid comprises 3 mg of proline (detailed description, paragraph 3).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Svec et al., Vriesema et al. and Wu et al. all teach fertilizer formulations. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Svec et al., Vriesema et al. and Wu et al. to use a conazole fungicide with a reasonable expectation of success. One of ordinary skill would have been motivated at the time of filing to combine the teachings of Svec et al., Vriesema et al. and Wu et al. to further include propiconzole because Wu et al. teach that combining proline and propiconazole with nitrogen-phosphorus-potassium fertilizers treat disease and improve plant health in kiwi.
Response to Arguments
Applicant's arguments filed 11/18/2025 have been fully considered but they are not persuasive.
Applicant argues there is nothing in Svec et al. to teach or suggest selectively using proline or a combination of proline and betaine as osmoprotectants. The Examiner is not persuaded by this argument because Svec teaches proline and betaine are amino acids present in an amount of about 0.01% to about 10%, by weight of the fertilizer (column 2, line 66 through column 3, line 7) and amino acids such as proline and betaine are known to inherently possess properties as osmoprotectants.
Applicant further argues that Svec et al. teach the growth promoters and amino acids are supplied by seaweed extracts not sources of single amino acids which would have higher total amino acid content. The Examiner is not persuaded by this argument because Svec teaches optimizing the amount of proline and betaine to about 0.01-10% to enhance crop production. The comprising language of the claim allows for the inclusion of other components which include seaweed extracts.
Applicant further argues that there is no motivation in Smith to select betaine hydrochloride and L-proline because Smith teach calcium hypophosphite is provides a more stable product and contains fewer degradation products. The Examiner is not persuaded by this argument because Smith et al. states that fertilizer compositions comprising amino acids generally comprise betaine hydrochloride and L-proline [0025]. Therefore, one of ordinary skill in the art would have preferred betaine selected from betaine hydrochloride and proline selected from L-proline to form a fertilizer.
Applicant argues there is not suggestion or motivation in Vriesema to selectively use potassium phosphate tribasic in a fertilizer that does not comprise an acidic component. The Examiner is not persuaded by this argument because Vriesema teach tripotassium phosphate (tribasic) is known as an anti-caking agent (column 2, lines 13-34) and fertilizers preferably include tripotassium phosphate (tribasic) as a basic fertilizer in the solid fertilizer product (column 7, lines 26-34; Table 2). The comprising language of the claim allows for the inclusion of other components including acidic components. Therefore the present claims are prima facie obvious.
Finally, Applicant argues that Wu et al. provides no motivation to combine a conazole fungicide into the composition since it is administered separately and at different times than the other fertilizers. The Examiner is not persuaded by this argument because Wu et al. teach that combining proline and propiconazole with nitrogen-phosphorus-potassium fertilizers treat disease and improve plant health in kiwi. It would be 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 that is to be used for the very same purpose, the idea of combining them flows logically from their having been individually taught in prior art.” In re Kerkhoven 205 USPQ 1069, (C.C.P.A. 1980). Therefore, there rejections have been maintained.
Conclusion
No claims allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached at 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DANIELLE D. JOHNSON
Examiner
Art Unit 1611
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611