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 .
Claims Status
Claims 1-6, 8 and 15 are pending and under current examination in this application.
Amendment to the claims filed 05 September 2025, are acknowledged. Claims 3, 5 and 6 have been amended to remove multiple dependencies and no new claims have been added.
Applicant’s election without traverse of Group I: claims 1-6, 8 and 15, drawn to a product (composition) in the reply filed on 05 September 2025, is acknowledged. Claims 7 and 9-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Groups II and III, there being no allowable generic or linking claim. The restriction is hereby made final.
Claim Rejections - 35 USC § 112(b)
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 Applicant regards as his invention.
Claims 2 and 4 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, regards as the invention.
Claim 2 includes the language, “benzophenone type copouts, which renders the claim indefinite because there is no definition or limitation on what compounds could be considered X-type. Correction would be to remove the modifier type from the claim.
The claim 4 language employs the terms "flavonoid like tannins or naringenin" and "anti-oxidants like include ascorbic acid, propyl gallate." The use of "like" and "like include" is informal and non-limiting, creating ambiguity as to whether the list is open-ended, exemplary, or exclusive. This language fails to meet the requirement for particularly pointing out and distinctly claiming the invention, as it does not provide a clear and definite list of compounds (see Ex parte Hall, 83 USPQ2d 1756 (BPAI 2007)). Appropriate correction is required (e.g., removing the term “like”).
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 (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 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 1-6, 8 and 15 are rejected under 35 U.S.C. § 103 as being unpatentable over Riggs et al., (WO2010115721A2; publication date 14 October 2010, hereinafter referred to as “Riggs”) in view of Basaran et al. (WO2019098959A2; published 23 May 2019, hereinafter referred to as “Basaran”).
Riggs teaches a method of reducing sunburn damage in a crop plant using a composition comprising at least one UV filter chosen from the following groups: A) benzotriazoles, B) cyanoacrylate derivatives, C) para-amino benzoic acid derivatives, D) esters of salicylic acid, E) esters of cinnamic acid, F) derivatives of benzophenone, G) sulfonic acid derivatives of benzophenones, H) 3-benzylidenecamphor and derivatives thereof, I) sulfonic acid derivatives of 3-benzylidenecamphor, J) esters of benzalmalonic acid, K) triazine derivatives, L) propane-1 ,3-diones, N) derivatives of benzoylmethane, O) aminohydroxy-substituited derivatives of benzophenones, P) mixtures of UV filters of groups A) to O) (claim 1), wherein the UV filter is water-soluble (claim 3). Group G) and M) of claim 1 contains water-soluble compound comprising an ionic group as ionic sulfonic acid derivatives of benzophenones and its salts and 2-phenylbenzimidazole-5-sulfonic acid and alkali metal, alkaline earth metal, ammonium, alkylammonium, alkanolammonium and glucammonium salts thereof, respectively. Group A) of claim 1 as [3-[3-(2H-benzotriazol-2-yl)- 5-(1 ,1-dimethylethyl)-4-hydroxyphenyl]-1-oxopropyl]-w-[3-[3-(2Hbenzotriazol- 2-yl)-5-(1 ,1-dimethylethyl)-4-hydroxyphenyl]-1-oxopropoxy]poly(oxy- 1 ,2-ethanediyl) (Tinuvin® 1130, CIBA AG) contains a polyethoxylate [oligo-ethoxylate] group and the generic formula for the group includes an R1 substituent for a water-solubilizing chain.
Regarding instant claim 4, 2,2'-dihydroxy-4,4'-dimethoxybenzophenone-5,5'-bis(sodium sulfonate) is disclosed by claim 1 G) as the disodium salt, 2-phenylbenzimidazole-5-sulfonic acid by claim 1 M), and diethylaminohydroxybenzoyl-n-hexylbenzoate by claim 1 O).
These compositions can also comprise other active substances, such as fertilizers which are defined as ammonium sulfate, urea, ammonium phosphate or ammonium nitrate (page 12, lines 27-28), namely being a NPKS fertilizer according to the definition in the present application, and kaolin, clays [bentonite], and lime-stone/chalk [calcium carbonate] (page 12, lines 25-26; claim 10). These compositions can be sprayed (page 15, lines 26-27) and are used as liquid compositions in the field (page 19, lines 25-30) when the plants are growing in view of Example 3 (winter barley; page 30, lines 26-28) to control sunburn (page 31, lines 7-8).
Riggs also teaches, “According to one embodiment, individual components of the composition according to the invention such as parts of a kit or parts of a binary or ternary mixture may be mixed by the user himself in a spray tank and further auxiliaries may be added, if appropriate (tank mix). In a further embodiment, either individual components of the composition according to the invention or partially premixed components, e. g. components comprising UV filters and/or active substances from the groups A') to G'), may be mixed by the user in a spray tank and further auxiliaries and additives may be added, if appropriate (tank mix).” (page 19, lines 31-39), wherein, the composition constituents are used in “effective amounts” (page 11, lines 14-18).
Further, Basaran explicitly teaches fertilizer compositions containing NPK macronutrients (claim 6) and micronutrients (claim 7) (page 3, lines 32-34) in formulations with UV-blocking agent (titanium dioxide; claim 1) and organic antioxidant amino acids (page 5, lines 12-23) for foliar spray application (page 4, lines 22-24).
It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to combine the teachings of Riggs and Basaran to arrive at the claimed invention. Riggs teaches all of the limitations of the claims excepting the explicit selection of the NPKS fertilizer from the list of possible additional components needed for arriving at a composition comprising this fertilizer plus one of the claimed UV filters. Basaran explicitly teaches the inclusion of NPKS fertilizer in a sun protection composition using the inorganic sunblock titanium dioxide, thus it would have been obvious to add the limitation taught by Basaran to the invention of Riggs or substitute the organic sunblocking agents taught by Riggs to the invention of Basaran with a reasonable expectation of success. One would be motivated to combine sunblock and fertilizer compositions for efficiency and because this combination has been explicitly disclosed as advantageous by Basaran.
Regarding the claim of a kit-of-parts, one would be motivated to do so by the explicit teaching of Riggs and because a kit-of-parts where the fertilizer and UV absorber are intentionally separated could improve convenience, flexibility of use or stability with a reasonable expectation of success. The instructions for mixing the parts into a spray solution are a conventional accompaniment for such a kit. A kit-of-parts for an agrochemical would be useless and inoperative without instructions directing the user on how to combine the components to form the final application mixture. Therefore, including instructions specifying the relative amounts, mixing order, and application as a foliar spray constitutes nothing more than the application of routine experimentation and conventional steps to make the kit operable for its intended purpose. There is no inventive step in merely taking a known combination and packaging its components separately with instructions to achieve the exact same result that was already known in the art.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REBECCA L. SCOTLAND whose telephone number is (571) 272-2979. The examiner can normally be reached M-F 9:00 am to 5:00 pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A. Wax can be reached at (571) 272-0623. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
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/RL Scotland/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615