DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1 April 2026, has been entered.
Response to Amendments
Status of Claims
The amendment, filed on 4 March 2026, is acknowledged.
Claims 59, 61, 63, 73, and 75 have been amended.
Claims 60 and 74 have been cancelled.
Claims 59, 61-73, and 75-78 are pending and under consideration in the instant Office Action.
Rejections Withdrawn
Rejections pursuant to 35 U.S.C. § 112
The rejection of claims 59, 61-73, and 75-78 under 35 U.S.C. § 112(a) is withdrawn in view of Applicant’s amendments to claims 59, 73, and 75. The rejection of claim 63 under 35 U.S.C. § 112(b) is withdrawn in view of Applicant’s amendments to the claim. The rejection of claims 60 and 74 under 35 U.S.C. § 112(a) are rendered moot in view of Applicant’s cancellation of the claims.
Rejections pursuant to 35 U.S.C. § 103
The rejection of claims 59, 61-73, and 75-78 under 35 U.S.C. § 103 is withdrawn in view of Applicant’s amendments to the claims and in favor of the new grounds of rejection below. The rejection of claims 60 and 74 under 35 U.S.C. § 103 is rendered moot in view of Applicant’s cancellation of the claims.
New Grounds of Rejection
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 59, 61-73, and 75-78 are rejected under 35 U.S.C. 103 as being unpatentable over Schwindt (Canadian Patent Application Publication No. CA 2709191 A1, published on June 18, 2009, provided by Applicant in the IDS filed on 29 August 2023) in view of Zhao et al. (WIPO International Publication No. WO 2014/153210 A1, published on September 25, 2014, provided by Applicant in the IDS filed on 29 August 2023, hereafter referred to as Zhao).
Schwindt teaches a method of “producing a protective layer on a surface of a plant” as well as a composition for said protective layer (Abstract). The protective layer “is permeable without restriction for…photosynthetically usable radiation” and “the necessary gas exchange of the plant leaf through the stomata is not impaired” (pg. 7, line 34 – pg. 8, line 5). In addition, the protective layer is elastic and capable of undergoing “longitudinal growth as an intact protective layer, so as not to impair plant leaf growth” (pg. 11, lines 14-17). Plants that can be protected by the invention include those in “all development stages and manifestations of a plant, including the seeds, seedlings, buds, leaves, blossoms, fruit and bark” (pg. 7, lines 10-13). These teachings are considered to render obvious the seedling and budding stages as growth stages, as evidenced by para. [0055] and [0240] of the instant spec. Specific genera of plants to which the invention can be applied are also taught, including the fruit plant family Vitaceae (grape-vine plants), the cereal plants wheat (Triticum), rye (Secale), and barley (Hordeum), and hemp seedlings (claim 28 and Example 4).
In the protection of the hemp seedlings described in Example 4, the plants were housed in a greenhouse. Multiple plants were sprayed in Example 4 and claim 32 teaches the use of the composition to protect plants in the plural, stating “use of the composition….for the strengthening of plants or seeds and/or seedings of these plants”. The instant specification does not provide a clear definition of a “nursery”, but describes it as containing a “plurality of plants” (pg. 20, para. 4) and provides a greenhouse as an example of a nursery (pg. 24, para. 7). Accordingly, the teachings of Schwindt are considered equivalent to the nursery recited in instant claim 73.
The composition taught by Schwindt comprises a sol-gel, which is formed by hydrolysis of one or more polymeric precursors in water (claims 1 and 3, pg. 7, line 20 – pg. 14, line 13). In some embodiments, the composition comprises ~4.5% to ~6% SiO2 (Example 1). The composition further comprises chitosan, a chitosan salt, or a derivative of chitosan, which is a polysaccharide as evidenced by instant claim 63 (claim 15). Schwindt also teaches the composition to contain “at least one antimicrobial active substance” that is added to the solution prior to polymerization (claim 2). Examples of the antimicrobial active substance include antibacterial, antifungal, and antiviral substances, as well as chitosan (pg. 9, line 13 - pg. 10, line 23). The one or more antimicrobial active substances are taught to be present in an amount from 0.1-50% w/w, which significantly overlaps with the range recited in instant claim 78.
The method of producing the protective layer on the surface of a plant taught by Schwindt includes application by “spraying, dipping, spreading, painting, watering, film watering, and/or spray bar” (claim 6). In Example 1, the sol-gel protective layer was applied to leaves of the species “Noble Vine” via spraying and “[c]are was taken to produce a uniform film of moisture on the top surfaces and undersurfaces of the leaves”. The application methods taught and uniform film on both the top and bottom of the “Noble Vine” leaves is considered equivalent to the homogenously dispersed, 60% coverage of instant claims 71-72 and 75-77.
Guidelines on the obviousness of similar and overlapping ranges, amounts, and proportions are provided in MPEP § 2144.05. With respect to claimed ranges which “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). These guidelines apply to the range of antimicrobial active substances taught by Schwindt, which in one embodiment is chitosan. The range taught by Schwindt significantly overlaps with the range recited in instant claim 78 and renders it prima facie obvious.
Schwindt does not teach their composition to comprise an active agent that is a biostimulant or an essential oil. These deficiencies are offset by the teachings of Zhao.
Zhao teaches a composition “formulated for preventing or mitigating pre- and/or post-harvest damage in a plant, fruit, vegetable, or part thereof” (claim 11). Protection is provided by the composition “against biotic and/or abiotic stresses”, such as biotic stresses of insect, nematode, and/or microbial infestation and/or abiotic stress originating from the environment (pg. 28, para. 2). The composition can be applied via dipping, dripping, or spraying (pg. 30, B. Application of Compositions).
The composition comprises cellulosic material, in some embodiments being carboxymethyl cellulose or alginate salts, and other polysaccharides such as starch or chitosan (pg. 19, para. 4 and pg. 20, para. 3). Claim 9 teaches that the composition comprises an agricultural agent, which can be “nutrients, growth stimulants, plant growth regulators, herbicides, fungicides, pesticides, or a combination of two or more thereof”. “Nutrients” are defined to include trace minerals (pg. 15, para. 2). In addition to an agricultural agent, the composition comprises a stabilizing agent, one example of which is salicylic acid, a known phytohormone (pg.19, line 10). The term “biostimulant” is defined in the instant spec. (pg. 16, para. 4) as a substance “that is capable to stimulate natural processes of plants to benefit their nutrient use efficiency and/or their tolerance to abiotic stress”, and the combination of the examples above and stated purpose of protection against biotic and/or abiotic stresses renders obvious instant claims 65-66. Claim 9 of Zhao further teaches that the composition comprises an additive agent and provides essential oils as an example of such an additive agent (pg. 21, line 2). Examples of suitable essential oils are “thyme oil, clove oil, oregano, lemongrass, marjoram, cinnamon, coriander, or combinations thereof”, with cinnamon essential oil in particular taught to protect against fungal growth in Example 15, rendering instant claims 69-70 obvious.
It would have been obvious to a person having ordinary skill in the art, prior to the filing date of the instant application, to combine the teachings of Schwindt and Zhao to arrive at the claimed invention because the combination of elements known in the prior art in related inventions to impart known benefits produces predictable results. In the instant case, Schwindt teaches a composition comprising at least one antimicrobial agent in an amount that renders obvious the quantity recited in instant claim 78 that can be used to protect a plant in any stage of growth from bacteria, fungi, algae, and viruses. In one embodiment the antimicrobial agent is the polysaccharide chitosan. Further, Schwindt teaches that their composition can impart protection by dipping, spraying, or painting, will allow the passage of gases, and may be applied in a continuous layer covering the entirety of the plant part.
In view of the teachings of Zhao it would be obvious to one of ordinary skill to use an essential oil as one of the antimicrobial agents in the invention of Schwindt because Zhao teaches in Example 15 that cinnamon leaf essential oil inhibits the growth of mold, which the ordinary artisan would recognize as beneficial in a composition that is applied to plants to impart protection from bacteria, fungi, and other harmful organisms. The ordinary artisan would also be motivated to use salicylic acid, a known phytohormone, in the composition of Schwindt because Zhao teaches the species to act as a stabilizing agent and one of ordinary skill would recognize added stability in their composition as desirable.
Finally, Schwindt taught their composition was appropriate to apply to plant parts in all development stages and manifestations of a plant, including the seeds, seedlings, and buds, which are considered to be growth stages (vide supra). One of ordinary skill would be motivated to use nutrients and growth stimulants to improve plant growth in the composition of Schwindt because Zhao teaches the use of the species in a protective composition to protect plants during growth stages and promote growth. Incorporation of these plant growth aiding agents is taught to improve the shelf-life of fruit, prevent degradation caused by sunburn, and prolong the growing season (Zhao Table 1), which a person of ordinary skill would recognize as beneficial in a composition that is intended to be applied to growing plants. As such, there is a reasonable expectation of success in arriving at the invention of claims 59, 61-73, and 75-78 in view of the teachings of Schwindt and Zhao.
Response to Arguments
The Applicant’s arguments, filed on 4 March 2026, have been fully considered but are not persuasive.
Applicant argues from the final para. of pg. 7 to para. 3 of pg. 8 that an ordinary artisan would not be motivated to "replace [Schwindt's] silica sol-gel matrix with a polysaccharide carrier matrix". The final Office Action, mailed on 4 November 2025, did not make this argument, but instead argued that the inclusion of a polysaccharide in a skin-like composition would be obvious in view of the prior art (also, vide supra) and the argument is not found persuasive.
From the penultimate para. of pg. 8 to para. 2 of pg. 9, Applicant argues that the Zhao reference does not teach that their invention is “specifically adapted for actively rooting, sprouting, or vegetatively developing plant material”. Zhao teaches species that are beneficial in compositions that protect plants. This field of endeavor is considered to be reasonably pertinent to the protective plant composition taught by Schwindt and a person of ordinary skill would reasonably expect beneficial species in one plant protective composition to lend the same benefits in another composition, therefore the references are appropriate to use in a rejection under 35 U.S.C. § 103. See MPEP § 2141.01(a). Schwindt does teach that their composition is appropriate to apply to a plant in all development stages and manifestations of a plant, including the seeds, seedlings, and buds, which are considered to be growth stages (vide supra). Therefore, the Zhao reference does not need to teach that their invention is “specifically adapted” for the argued stages in order to render the claimed invention obvious when combined with the teachings of Schwindt. As a result, Applicant’s argument is found to be unpersuasive.
From the penultimate para. of pg. 9 to para. 3 of pg. 10, Applicant argues that modifying the teachings of Schwindt with the teachings of Zhao is improper because it would “require departure from the principle of operation of Schwindt” and again refers to “[r]eplacing Schwindt’s inorganic silica matrix with an organic polysaccharide carrier matrix”. Regarding the first argument, the Examiner disagrees. The Zhao reference is used for its teachings of the benefits of biostimulants, in particular the phytohormone salicylic acid, essential oils, growth stimulants, and nutrients to plants in a plant protective composition. Utilizing these species in the plant protective composition that will be applied to plants does not change the principle of operation of the invention taught by Schwindt.
Regarding the second argument directed to replacing species in the invention of Schwindt with other species, as stated above, this is not an argument that was made in the rejection in the previous Office Action nor the rejection above. Instead, the rejections argue that the relevant species would be obvious to add to the invention of Schwindt to impart known benefits to plants. As a result, Applicant’s arguments are found to be unpersuasive.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning in para. 3 of pg. 10, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Prior to the filing of the instant application, Schwindt taught a plant protective composition that permits gas exchange, may be applied during growth stages, may be applied in a continuous layer that covers the full surface of a plant or plant part, and comprises active agents which include chitosan, as well as rendering obvious a nursery comprising a plurality of plants to which the composition has been applied and a method of using the composition. Also prior to the filing of the instant application, Zhao taught the benefits of biostimulants, in particular the phytohormone salicylic acid, essential oils, growth stimulants, and nutrients to plants in a plant protective composition. No hindsight reasoning would be required for an ordinary artisan to combine the teachings of the two references and the argument is not found to be persuasive.
Applicant also referred to “selecting…’polysaccharides’ from Zhao” in para. 3 of pg. 10. It is noted that instant claim 59 recites at least one polysaccharide and instant claim 63 recites one embodiment of the at least one polysaccharide to be chitosan. The Schwindt reference teaches that their composition comprises chitosan (vide supra) and the Zhao reference is not needed to render obvious at least one polysaccharide.
Finally, in the antepenultimate para. of pg. 10 Applicant argues that the Ryan and Büttner references do not address “structural surface coatings, carrier matrices, or continuous film layers on plant surfaces” and therefore cannot provide a motivation to combine their teachings with the references above. The new grounds of rejection above do not rely upon the teachings of Ryan and Büttner and the argument is therefore considered moot.
Conclusion
No claims are allowed.
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/S.J.S./
Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
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