DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 23, 25, 28-31, 34-37 and 40-41 are pending.
Withdrawn Rejections
Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn.
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 23, 25, 28-31, 34-37 and 40-41 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.
Instant claim 23 states “ulvans and/or ulvan-derived oligosaccharides in the form of an extract containing ulvans and/or ulvan-derived oligosaccharides in a concentration from 1 g/L to 20 g/L”. It is unclear whether the concentration recited is (1) the concentration of the ulvans and/or ulvan-derived oligosaccharides with respect to the extract, (2) the concentration of the ulvans and/or ulvan-derived oligosaccharides with respect to the total composition, or (3) the concentration of the extract with respect to the total composition. Dependent claims 25, 28-31, 34-37 and 40-41 do not clarify the concentration and are also indefinite.
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 23, 25, 28-31, 34-37 and 40-41 are rejected under 35 U.S.C. 103 as being unpatentable over Briand et al. (US 7,820,176) in view of Malhotra et al. (Scientia Agriculturae, 2016), Jeschke (Pest Management Science, 2016), Shan et al. (CN 107306998 A) and Sawant (US 2019/0029266 A1).
Regarding instant claims 23, 28 and 35-36, Briand et al. teach the use of ulvans, in particular extracted from green algae of the genus Ulva or Enteromorpha, or of ulvan-derived oligosaccharides, as activators of plant defense and resistance reactions against biotic or abiotic stresses (col. 3, ln. 1-5; Claims 1-14). Advantageously, the ulvans used according to Briand et al. are extracted from algae chosen from the group consisting of the following species: Ulva armoricana, Ulva rigida, Ulva rotundata, Ulva lactuca, Enteromorpha intestinalis and Enteromorpha compressa (col. 3, ln. 66 to col. 4, ln. 3; Table 1).
Regarding instant claims 29 and 34, Briand et al. teach an extract of Ulva armoricana enriched in ulvans, and in particular in derivatives of iduronic acid of xyloidurorhamnan type (col. 5, ln. 63-67).
Regarding instant claim 30, Briand et al. teach that the ulvan-derived oligosaccharides which can be used in the context of the invention can be obtained by acid hydrolysis or enzymatic hydrolysis using the abovementioned extracts (col. 4, ln. 15-18; col. 5, ln. 45-61).
Regarding instant claims 23 and 37, Briand et al. teach that the amount of ulvans or of ulvan-derived oligosaccharides given to the plants is from 0.1 g to 100g per liter, and preferably of the order of 1 g per liter, when applied in liquid form via the leaves or in nutritive solutions for the roots (hydroponics, dropwise, etc.) (col. 4, ln. 24-28, 45-52 and 61-62; col. 4, ln. 65 to col. 5, ln. 3; col. 19, ln. 35; Examples 4-12; Claims 3-5).
Regarding instant claims 23, 28-31, 34-37 and 41, Briand et al. do not explicitly disclose compositions comprising a silicon in the form of orthosilicic acid and/or a soluble salt such as potassium silicate or sodium silicate in a concentration from 1.0 g/L to 30 g/L, as instantly claimed.
However, Malhotra et al. teach that silicon has been considered as beneficial element for the plants. The supplementation of silicon as nutrient to the plants may play a significant role which includes increase in crop growth and yield, improvement of leaf exposure to light, decreased susceptibility to pathogens and pests and amelioration to abiotic and biotic stresses (Abstract; pg. 65-66; Table 2). Malhotra et al. teach that sources of silicon that are effectively applied to plants include potassium silicate and sodium silicate (pg. 60, 63, 65, 67; Table 1). Plants absorb silicon from the soil solution in the form of monosilicic acid, uncharged molecule also known as orthosilicic acid (H4SiO4) (pg. 61).
Shan et al. teach formulations comprising 3-6% (30-60 g/l) of sodium silicate combined with azoxystrobin and Enteromorpha polysaccharide (Abstract; Claim 1).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare compositions according to Briand et al. comprising ulvans or ulvan-derived oligosaccharides as activators of plant defense and resistance reactions against biotic or abiotic stresses, and further including silicon such as sodium silicate, potassium silicate or orthosilicic acid according to Malhotra et al. Such would have been obvious because Briand et al. and Malhotra et al. are both drawn to the application of compounds to plants to protect against biotic and abiotic stressors. A person of ordinary skill in the art would reasonably expect that the addition of silicon, such as potassium silicate or sodium silicate, to the compositions according to Briand et al. would further enhance the effectiveness of the compositions to protect against biotic and abiotic stress. Also, a person of ordinary skill in the art would have been motivated to determine the effective concentration of silicon to include in the composition of Briand et al. in order to increase crop growth and yield, improve leaf exposure to light, decrease susceptibility to pathogens and pests and ameliorate abiotic and biotic stresses.
Such would have been obvious in the absence of evidence to the contrary because it is generally prima facie obvious to use in combination two or more ingredients that have previously been used separately for the same purpose to form a third composition useful for that same purpose. The idea of combining them flows logically from their having been taught individually in the prior art. In re Kerkhoven 626 F.2d 646, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Regarding instant claims 23, 25, 28-31, 34-37 and 40-41, Briand et al. do not explicitly disclose compositions comprising a fungicide selected from those instantly claimed.
Jeschke teaches that fluxapyroxad is a systemic, broad-spectrum SDHI that is efficient against leaf spot diseases in many crops and can be used for seed treatments. In order to obtain optimal curative activity against early stages of pathogen infection, a mixture with the SBI fungicide epoxiconazole has been launched (pg. 435, col. 2; pg. 438, col. 1).
Shan et al. teach a composition comprising Enteromorpha prolifera polysaccharides, azoxystrobin and sodium silicate, wherein the composition is great in germination accelerating effect, capable of increasing the emergence rate of rice seeds and guaranteeing completeness, robustness and uniformity of seedlings and further capable of increasing chlorophyll and radicle amount of seedling leaves and effectively preventing soil-borne diseases such as pellicularia sasakii and rice blast of rice seeds (Abstract; Embodiments 1-3; Claims 1-3).
Sawant teaches a granular algal composition comprising at least one algae, a solid carrier such as silicates, and an anti-fungal agent and/or fertilizer; wherein the algae include green algae belonging to the genus Ulva Sp. and Enteromorpha Sp., and the fertilizers include sulfur (Abstract; [0001], [0007], [0024], [0027]-[0029], [0039], [0056], [0066-0067], [0074]-[0075], [0079], [0081]-[0082]; Tables 1, 4 and 8; Claims 1, 3, 5, 12, 14).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare compositions according to Briand et al. in view of Malhotra et al., further comprising a fungicide such as fluxapyroxad or azoxystrobin or fertilizer such as sulfur. Such would have been obvious because Briand et al. teach that the ulvans and ulvan-derived oligosaccharides are effectively applied to plants for defending against fungi; Jeschke teaches fluxapyroxad combined with additional fungicides to obtain optimal curative activity against early stages of pathogen infection; Shan et al. teach extracts of Enteromorpha combined with azoxystrobin and sodium silicate was effective for control of soil-borne diseases as well as improving growth of rice seedlings; and Sawant teaches crop fortification and protection compositions comprising a combination of an algae, such as Ulva sp. and Enteromorpha sp., a silicate, and an anti-fungal agent and/or a fertilizer.
Such would have been obvious in the absence of evidence to the contrary because it is generally prima facie obvious to use in combination two or more ingredients that have previously been used separately for the same purpose to form a third composition useful for that same purpose. The idea of combining them flows logically from their having been taught individually in the prior art. In re Kerkhoven 626 F.2d 646, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Also, a person of ordinary skill in the art would have been motivated to combine azoxystrobin with the compositions of Briand et al. because Shan et al. teach that azoxystrobin and carbendazim has the function of disinfection and sterilization, rice sheath blight, rice blast with good sterilizing effect, preventing the virus propagation from the seed (pg. 3). A person of ordinary skill in the art would have been motivated to include azoxystrobin in the compositions according to Briand et al. in order to control soil-borne diseases.
Response to Arguments
Applicant's arguments filed 29 January 2026 have been fully considered but they are not persuasive. Applicant argues that none of the cited art, alone or in combination, teaches or suggests use of a composition comprising ulvans and/or ulvan-derived oligosaccharides in the form of an extract containing ulvans and/or ulvan derived oligosaccharides in a concentration from 1 g/L to 20 g/L (i.e., between 0.1 and 2%) and silicon in the form of orthosilicic acid and/or a soluble salt in a concentration from 1.0 g/L to 30 g/L (i.e., between 0.1 and 3%) to enhance the effect of a pesticide.
The examiner respectfully argues that Briand et al. teach that the amount of ulvans or of ulvan-derived oligosaccharides given to the plants is from 0.1 g to 100g per liter, and preferably of the order of 1 g per liter, when applied in liquid form via the leaves or in nutritive solutions for the roots. Also, Shan et al. teach formulations that are great in germination accelerating effect, capable of increasing the emergence rate of rice seeds and guaranteeing completeness, robustness and uniformity of seedlings and further capable of increasing chlorophyll and radicle amount of seedling leaves and effectively preventing soil-borne diseases such as pellicularia sasakii and rice blast of rice seeds. The formulations of Shan et al. comprise 3-6% sodium silicate. A person of ordinary skill in the art would have been motivated to determine the effective concentration of silicon to incorporate in the compositions according to Briand et al., as reasonably suggested by Shan et al. and Malhotra et al.
Applicant argues that ulvans, or ulvan-derived oligosaccharides, are used in Briand as a replacement for pesticides. Thus, upon reading Briand, one of ordinary skill in the art would not have been motivated to use ulvans or ulvan derived oligosaccharides in combination with pesticides to enhance the effect of a pesticide, as recited in the present claims.
The examiner respectfully argues that Shan et al. and Sawant teach combining ulvans and/or ulvan-derived oligosaccharides with an anti-fungal agent. Therefore, a person of ordinary skill in the art would have been motivated to combine the ulvans and/or ulvan-derived oligosaccharides with an anti-fungal agent, as suggested by Shan et al. and Sawant.
Applicant further argues that Briand only discloses use of ulvans or ulvan-derived oligosaccharides alone or in combination with one or more fertilizing substances. Briand discloses that the fertilizing substances which can be used in combination with ulvans or ulvan-derived oligosaccharides may be potassium chloride. Thus, in Briand, potassium chloride is described as a fertilizing substance and not as a pesticide.
The examiner respectfully argues that Sawant teaches fertilizers that can be combined with algae include potassium chloride and sulfur ([0079]). Therefore, it would have been obvious to substitute sulfur in the place of potassium chloride in the compositions according to Briand et al. Also, Shan et al. and Sawant both teach compositions comprising algae or Enteromorpha prolifera polysaccharides combined with anti-fungal agents. Therefore, a person of ordinary skill in the art would have been motivated to combine the ulvans and/or ulvan-derived oligosaccharides of Briand et al. with an anti-fungal agent and/or fertilizer.
Applicant further argues that while Malhotra discloses that plants supplemented with silicon show a better resistance to diseases and infections by parasites, Malhotra does not teach or suggest the amount of silicon should be used to obtain such an effect. Malhotra also does not teach or suggest applying silicon together with a pesticide, let alone doing so at specific concentrations in combination with ulvans and/or ulvan-derived oligosaccharides can potentiate the effect of the pesticide, as demonstrated in the present application.
The examiner respectfully argues that Shan et al. teach formulations that are great in germination accelerating effect, capable of increasing the emergence rate of rice seeds and guaranteeing completeness, robustness and uniformity of seedlings and further capable of increasing chlorophyll and radicle amount of seedling leaves and effectively preventing soil-borne diseases such as pellicularia sasakii and rice blast of rice seeds. The formulations of Shan et al. comprise 3-6% sodium silicate. A person of ordinary skill in the art would have been motivated to determine the effective concentration of silicon to incorporate in the compositions according to Briand et al., as reasonably suggested by Shan et al. and Malhotra et al.
Applicant argues that a potentiating effect of a pesticide was achieved only when the pesticide was applied with a composition comprising ulvanes and silica, as shown in Figure 4 of the present application. Neither Briand nor Malhotra, or the combination thereof, teaches or suggests applying a composition comprising ulvans and/or ulvan-derived oligosaccharides in the form of an extract containing ulvans and/or ulvan-derived oligosaccharides at a concentration ranging from 1 g/L to 20 g/L and silicon in the form of orthosilicic acid and/or a soluble salt at a concentration ranging from 1 g/L to 30 g/L with one or more pesticides to a plant to potentialize the pesticidal effect of a pesticide.
The examiner respectfully argues that Shan et al. teach compositions comprising a combination of Enteromorpha prolifera polysaccharides, azoxystrobin and sodium silicate. Applicant has not provided any argument or evidence that the potentiating effect was not present in the composition of Shan et al., which comprise the same components. Also, it would have been obvious to combine the ulvans and/or ulvan-derived oligosaccharides with a silicon and anti-fungal agent as discussed above.
Furthermore, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Applicant also argues that Shan is vague about the chemical nature of the polysaccharides present in the compositions disclosed therein. To the contrary, the composition used in the claimed method comprises ulvans and/or ulvan-derived oligosaccharides and especially in the form of an extract containing ulvans and/or ulvan-derived oligosaccharides.
The examiner respectfully argues that Shan et al. teach that the Enteromorpha polysaccharide is enzymatically degraded and extracted from the natural green algae Enteromorpha ([0010]). The instant specification states that the term “ulvan-derived oligosaccharides” refers in the context of the invention to oligosaccharides obtained by acid hydrolysis of ulvans, for example by hot acid hydrolysis (for example at 85° C.), or by enzymatic hydrolysis of ulvans, for example using one or more glycosidases ([0028]); and an extract containing ulvan-derived oligosaccharides may be obtained by acid hydrolysis or enzymatic hydrolysis of an extract containing ulvans ([0033]). As noted by Applicant, Enteromorpha include ulvans. In the absence of evidence to the contrary, the composition according Shan et al. will contain ulvans and/or ulvan-derived oligosaccharides.
Applicant also argues that the composition of Shan, in addition to Enteromorpha polysaccharides, sodium silicate, and azoxystrobin, also contain various compounds known in the relevant filed as active ingredients, such as fulvic acids, which significantly influence the effects of the composition. It is therefore impossible to determine, based on the teachings of Shan, which compounds are responsible for the alleged effects, let alone identify those that could be useful in enhancing the effect of a pesticide.
The examiner respectfully argues that the instant claims recite the transitional phrase comprising, and do not exclude the presence of additional compounds not recited. Also, the compositions according to Shan et al. comprise the Enteromorpha polysaccharides, azoxystrobin and sodium silicate. In the absence of evidence to the contrary, the composition will have the instantly claimed potentiating effect of the pesticide.
Conclusion
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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nathan W Schlientz whose telephone number is (571)272-9924. The examiner can normally be reached 10:00 AM to 6:00 PM, Monday through Friday.
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/N.W.S/Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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