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 7/9/2026 has been entered. Claims 127 and were amended. Claims 127-132 and 134-157 are pending. The search has been broadened to encompass all anti-desiccants of claim 127 and all non-ionic surfactants. Therefore claim 137 has been rejoined.
Claims 132 and 149-157 are withdrawn. Claims 127-131 and 134-148 are under examination.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 7/31/2026 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 7/31/2026 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Withdrawn rejections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 7/31/2026 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn.
Applicants amendment has necessitated a new rejection.
Response to Amendment
The declaration under 37 CFR 1.132 filed 7/9/2026 is insufficient to overcome the new rejection because the showing is not commensurate in scope with the claimed invention. The data shows unexpected results for a formulation comprising 1.78% L-Proline, 2.5% potassium phosphate tribasic and 36.85% nonionic surfactant Avor LT, however the claims encompass any formulation comprising proline, various anti-desiccants and any non-ionic surfactant. However, in view of the new rejection under 102 formulations comprising proline, potassium phosphate monobasic and nonionic surfactant where known and in use before the time of filing.
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 134, 136 and 137 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.
Claim 136 recites “the alkylene glycol” and “the polyoxyalkylene or derivative thereof” which are indefinite. Claim 136 recites the limitation “the alkylene” in reference to the non-ionic surfactants listed in claim 135. There is insufficient antecedent basis for this limitation in the claim.
Additionally, the limitation “the polyoxyalkylene derivative thereof” in reference to the non-ionic surfactants listed in claim 135 lacks antecedent basis for this limitation in the claim.
The metes and bounds of the terms cannot be deciphered. For the purpose of examination the term nonionic surfactant of claim 136 is taken to encompass any compound comprising a glycol or polyoxyalkylene group.
Claim 137 recites “the anti-respirant comprises alkyl and alkyl lauryl polyoxyethylene glycol” which is indefinite. The metes and bound of the structure alkyl and alkyl lauryl polyoxyethylene glycol cannot be deciphered. The specification refers to an alkyl and alkyl lauryl polyoxyethylene glycol as the tradename Alligare surface [0264-271, 277-279, Table 1]. For the purpose of examination the term is treated as encompassing any compound comprising an alkylpolyoxyethylene glycol structure.
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.
Claim(s) 127, 129, 135, 136, 138, 139, 145 and 148 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Xu et al. (CN 201410699877; published April 8, 2015).
Applicant claims an agricultural composition and a kit comprising and osmoprotectant, proline, an anti-dessicant selected from potassium phosphate monobasic and an anti-respirant that is a non-ionic surfactant.
Xu discloses a cold-resistant agent comprising chitosan oligosaccharide, potassium phosphate monobasic, ascorbic acid (antioxidant), fulvic acid (biostimulant and plant growth regulator), proline and surfactant that improves plant cold resistance (abstract). The solution comprises 10-15 parts chitosan oligosaccharide, 8-15 parts potassium phosphate monobasic (fertilizer and anti-dessicant), 3-7 parts ascorbic acid (antioxidant), 2-5 parts fulvic acid (biostimulant and plant growth regulator), 1-2 parts proline and 1-2 parts surfactant [0005-11]. The preferred surfactant is the non-ionic surfactant Tween 80 (polyoxyethylene derivative).
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 131 and 142 are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al. (CN 201410699877; published April 8, 2015) as evidenced by Smith et al. (US 2012/0103051; published May 3, 2012).
Applicant claims an agricultural composition comprising and osmoprotectant comprising proline, an anti-desiccant potassium phosphate monobasic, and an anti-respirant comprising nonionic surfactant (claim 127).
Xu discloses a cold-resistant agent comprising chitosan oligosaccharide, potassium phosphate monobasic, ascorbic acid (antioxidant), fulvic acid (biostimulant and plant growth regulator), proline and surfactant that improves plant cold resistance (abstract). The solution comprises 10-15 parts chitosan oligosaccharide, 8-15 parts potassium phosphate monobasic (fertilizer and anti-dessicant), 3-7 parts ascorbic acid (antioxidant), 2-5 parts fulvic acid (biostimulant and plant growth regulator), 1-2 parts proline and 1-2 parts surfactant [0005-11]. The preferred surfactant is the non-ionic surfactant Tween 80 (a PEG fatty acid ester).
With respect to claims 131 and 137, Xu does not specify L-proline.
With respect to claim 142, Xu does not teach proline is from about 0.0005 to about 1% of the composition.
With respect to claims 131 and 137 Xu et al. teaches proline but does not specify L-proline, however, as evidenced by Smith et al. (US 2012/0103051; published May 3, 2012) fertilizer compositions comprising amino acids generally comprise L-proline [0025]. Therefore, selecting L-proline would have been prima facie obvious to one of ordinary skill in the art since it is the commercially available source of proline.
With respect to claim 142, Xu et al. do not specify 0.0004 to about 1% proline, however 1 part proline is taught. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). Since the proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.
Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Xu et al. L-proline in and amount of about 1% with a reasonable expectation of success. One of ordinary skill would have been motivated at the time of filing to combine the teachings of Xu et al. to include about 1% L-proline by routine optimization because Xu et al. teach mixtures of 1 part proline and L-proline is taught by Smith et al. as the commercially available proline source for fertilizers.
Claims 128, 130, 134, 140, 141, 143 and 144 are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al. (CN 201410699877; published April 8, 2015) as evidenced by Smith et al. (US 2012/0103051; published May 3, 2012), as applied to claims 131 and 142 in further view of Pehu (US 5,922,649; patented July 13, 1999).
Applicant claims an agricultural composition comprising and osmoprotectant comprising proline, an anti-desiccant potassium phosphate monobasic, and an anti-respirant comprising nonionic surfactant (claim 127).
Applicant also claims an agricultural composition comprising and osmoprotectant comprising proline, an anti-desiccant potassium phosphate monobasic, an anti-respirant comprising non-ionic surfactant and a second osmoprotectant betaine (claim 128)
The teachings of Xu et al. are addressed in the above 103 rejection.
With respect to claims 128, 130, 134, 140 Xu does not teach a second osmoprotectant which is betaine hydrochloride.
With respect to claim 141, Xu does not teach betaine is from about 0.00010-17% of the composition.
With respect to claim 143, Xu does not teach the betaine is in a concentration of about 5 µM to about 3 mM.
With respect to claim 144, Xu does not teach the betaine is in a concentration of about 5 µM to about 1.3 mM.
It is for this reason that Pehu et al. is joined.
Pehu et al. teach exogenous use of betaine and adjuvant to improve the yield of plants (abstract). Betaine improves plant growth under normal and stress conditions and adjuvant improves betaine absorption (column 3, lines 44-48). Betaine products include betaine hydrochloride which are commercially available (column 5, lines 11-15). The adjuvant is selected from non-ionic surfactants like Sito Plus (ethoxylated alcohol) (column 6, lines 2-34). The concentration of betaine ranged from 0.015-0.3M (15-300mM) with 0.1-0.3M (100-300 mM) being preferred in Example 5 (column 10, lines 32-67). The effective amount of betaine in solution was 12 g/L (1.5% % w/v) (column 9, lines 2-5).
Both Xu et al., Pehu et al. are drawn to plant treatment formulations for improving plant health under stressful conditions. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Xu et al. and Pehu et al. to include betaine in a concentration of 1.5% w/v or 100-300mM with a reasonable expectation of success. One of ordinary skill would have been motivated at the time of filing to combine the teachings of Xu et al. and Pehu et al. to include betaine in these concentrations because Pehu et al. teach betaine in concentrations of 1.5% w/v or 100-300mM improves plant growth under normal and stress conditions.
Claim 137 are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al. (CN 201410699877; published April 8, 2015) as evidenced by Smith et al. (US 2012/0103051; published May 3, 2012) in view of Pehu (US 5,922,649; patented July 13, 1999), as applied to claims above in further view of Vriesema et al. (8,419,820; published July 29, 2010).
Applicant claims an agricultural composition comprising and osmoprotectant comprising proline, an anti-desiccant potassium phosphate monobasic, and an anti-respirant comprising nonionic surfactant (claim 127).
The teachings of Xu et al. and Pehu et al. are addressed in the above 103 rejection.
Xu et al. and Pehu et al. teach potassium phosphate monobasic but does not teach 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).
Xu et al, Pehu et al. and Vriesema et al. all teach agricultural compositions to improve plant growth. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Xu et al., Pehu 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 Xu et al., Pehu et al. and Vriesema et al. to further include tribasic potassium phosphate because Vriesema et al. teach that tribasic potassium phosphate is a preferred fertilizer and has anti-caking properties which will allow the product to more readily dissolve in solution.
Claim 146 and 147 are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al. (CN 201410699877; published April 8, 2015) as evidenced by Smith et al. (US 2012/0103051; published May 3, 2012) in view of Pehu (US 5,922,649; patented July 13, 1999), as applied to claims above 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 monobasic, and an anti-respirant comprising nonionic surfactant (claim 127).
The teachings of Xu et al. and Pehu et al. are addressed in the above 103 rejection. Xu et al. and Pehu et al. do not teach the addition of a fungicide that is a conazole. 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).
Xu et al., Pehu 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 Xu et al., Pehu 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 Xu et al., Pehu 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 Applicant’s arguments with respect to Svec in the final office action have been considered but are moot because the new ground of rejection does not rely on the reference applied in the prior rejection of record.
Conclusion
No claims allowed.
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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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1617
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