FINAL REJECTION
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 .
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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.
Claims 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Moon et al. U.S. Patent Application Publication No.: 2021/0101846 A1.
Moon et al. discloses a horticulture additive comprising: (1) a wetting agent, wherein the wetting agent is a multi-branched polymer comprising at least one of an oxygen-containing and a nitrogen-containing polyfunctional base compound having at least three branches attached thereto, and (2) a humectant. The horticulture additive is advantageous for increasing plant survival of plants treated therewith when exposed to reduced watering conditions, see abstract. [Emphasis added].
Moon et al.’s paragraph [0022] reads in part as followed: “The inventive additive formulation, in terms of composition, thus includes at least one multi-branched oxygen-containing polyfunctional compound-based wetting agent. Such a polyfunctional compound may be a polyol, a polycarboxylic acid, a lactone (the ring structure of which will open upon reaction to provide the necessary reactive sites for branch addition thereto), or mixtures thereof, . . .”.
Moon et al.’s paragraph [0022] reads in part as followed: “Thus, particular classes of polyols suitable for this purpose include, without limitation, tri- to octa-hydric alcohols such as pentaerythritol, diglycerol, α-methylglucoside, sorbitol, xylitol, mannitol, erythritol, dipentaerythritol, arabitol, glucose, sucrose, maltose, fructose, mannose, saccharose, galactose, leucrose, and other alditol or sugar molecules . . .”.
Moon et al.’s paragraph [0033] reads in part as followed: “The following compounds may be suitable for use in synthesizing the wetting agent. Basically, surfactant-type compounds are reacted with the free oxygens of the alditol base structure. This can be accomplished in any number of ways, most notably through the alkoxylation of polyfunctional reactive hydrogen-containing materials. Each reactive hydrogen-containing site typically includes alkylene oxide moieties, such as, for instance, ethylene oxide (EO; a/k/a ethyleneoxy), propylene oxide (PO; a/k/a propyleneoxy), and/or, butylene oxide (BO; a/k/a butyleneoxy) in a ratio of EO:PO or BO of from about 5:95 to about 95:5. The combined molecular weight of EO+PO or BO is generally from about 300 to about 20,000, and more preferably from about 500 to about 15,000, such that each branch becomes a typical wetting species. . . .”.
Moon et al.’s paragraph [0043] reads as followed: “In a further aspect of the invention, the horticulture additive is comprised of an alditol-based wetting agent with about 50-80% PO and an internal EO block blended with polyethylene glycol (e.g. PEG-400) as a humectant in a 5:1 ratio, along with 1-10% of an alkoxylated fatty alcohol penetrant and 10-20% dipropylene glycol.”.
Moon et al. seems to differ from applicant’s claims in the following ways: 1) it is unclear if there is a direct teaching (i.e. by way of a specific example) to an alditol-based block wetting agent/copolymer wherein the polyethylene oxide (PO) concentration in the PO + EO containing branches/arms, falls within Applicant’s claimed concentration range of 40% to 60% by weight as set forth in independent claim 1, and 2) it is unclear if there is a direct teaching ( by way of a specific example) to where the molecular weight of each of the three branches/arms is greater than 1700 gmol-1.
It would have been obvious to one having ordinary skill in the art to actually make an alditol-based block wetting agent/copolymer wherein the polyethylene oxide (PO) concentration in the PO + EO containing branches/arms, falls within Applicant’s claimed concentration range of 40% to 60% by weight in light of the Moon et al.’s disclosure of paragraph [0043] wherein an alditol-based wetting agent with about 50-80% PO and an internal EO block blended with polyethylene glycol (e.g. PEG-400) is a preferred embodiment. Please note that applicant’s sub-concentration range of PO of from 50%-60% by weight, directly falls within Moon et al.’s said disclosure.
Likewise, it would have been obvious to one having ordinary skill in the art to make an alditol-based block wetting agent/copolymer wherein the molecular weight of each of the three branches/arms is greater than 1700 gmol-1 in light of Moon et al.’s disclosure of paragraph [0033] where it is taught that the combined molecular weight of EO + PO is from about 500 to about 15,000, which converts to 166.67 to 5000 MW for each of the three branches/arms. It should be noted that Applicant’s molecular weight per branch/arm of 1700 gmol-1 to 3000 gmol-1, as set forth in dependent claim 3, falls directly within Moon et al.’s said disclosure.
Response to Arguments
Applicant's arguments filed 12/08/25 with the amendment have been fully considered but are not persuasive to put the application in condition for allowance for the reasons set forth above. Additional examiner comments are set forth next. The previously made prior-art rejections over Kono et al.. and Petrea et al. in view of Kono et al. have been dropped.
The only remaining prior-art art rejection is made over Moon et al.. As set forth above, Moon et al. clearly sets forth a prima facia case of obviousness over applicant’s claims 1-9.
Applicant argues: “More specifically, Applicant respectfully submits that no motivation is provided to for selecting available teachings from Moon et al., modifying them, and successfully arriving at Applicant's claimed invention. Moon et al. fails to provide any indication that increasing the molecular weight of the copolymer or adjusting the proportion of propylene oxide would influence improvements in wetting agent performance.”.
Examiner response: The examiner is at lost how applicant can make such an assertion since it contradicts what the examiner set forth in the body of the prior-art rejection. For applicant’s convenience, the examiner repeats a part of the above prior-art rejection which is: “Moon et al. seems to differ from applicant’s claims in the following ways: 1) it is unclear if there is a direct teaching (i.e. by way of a specific example) to an alditol-based block wetting agent/copolymer wherein the polyethylene oxide (PO) concentration in the PO + EO containing branches/arms, falls within Applicant’s claimed concentration range of 40% to 60% by weight as set forth in independent claim 1, and 2) it is unclear if there is a direct teaching ( by way of a specific example) to where the molecular weight of each of the three branches/arms is greater than 1700 gmol-1.
It would have been obvious to one having ordinary skill in the art to actually make an alditol-based block wetting agent/copolymer wherein the polyethylene oxide (PO) concentration in the PO + EO containing branches/arms, falls within Applicant’s claimed concentration range of 40% to 60% by weight in light of the Moon et al.’s disclosure of paragraph [0043] wherein an alditol-based wetting agent with about 50-80% PO and an internal EO block blended with polyethylene glycol (e.g. PEG-400) is a preferred embodiment. Please note that applicant’s sub-concentration range of PO of from 50%-60% by weight, directly falls within Moon et al.’s said disclosure.
Likewise, it would have been obvious to one having ordinary skill in the art to make an alditol-based block wetting agent/copolymer wherein the molecular weight of each of the three branches/arms is greater than 1700 gmol-1 in light of Moon et al.’s disclosure of paragraph [0033] where it is taught that the combined molecular weight of EO + PO is from about 500 to about 15,000, which converts to 166.67 to 5000 MW for each of the three branches/arms. It should be noted that Applicant’s molecular weight per branch/arm of 1700 gmol-1 to 3000 gmol-1, as set forth in dependent claim 3, falls directly within Moon et al.’s said disclosure.”
Applicant then goes on to assert the following: “Therefore, a person skilled in the art would have had no reason to consider such modifications to the composition disclosed by Moon et al. as an obvious solution to the stated technical problem which is to improve the wetting agent performance. From the examples of the present application, it can be seen that these two differences lead to a reduction of dry spot occurrence in soil and increased water retention (see Tables 3-5, examples 2D or 1D compared with other examples)”.
Examiner response: In regards to applicant’s showing in Table 1-5, only examples 1D (drawn to a multi-branched block copolymer) and example 2D (drawn to a wetting agent composition comprising 1D) fall within applicant’s claimed invention. All other examples are deemed to be comparative examples. The examiner agrees that applicant’s example 2D shows superior visual rating results for reduction in dry spots (Table 3), improved volumetric water content (Table 4) and straw infiltration times (Table 5) as compared to all the comparative examples.
Nevertheless, said showing DOES NOT place applicant’s claims in condition for allowance because applicant’s claims are NOT at all commensurate in scope with said showing for the following reasons:
Applicant’s multi-branched block copolymer 1D (comprises only propylene oxide (PO) units and ethylene oxide (EO) units) and used in applicant’s example 2D, has a propylene oxide (PO) concentration of 40 weight %, which means the ethylene oxide (EO) concentration would be 60 weight %. Yet in applicant’s independent claim 1, the limitations (i) and (ii) are wide open for the inclusion of alkylene oxide moieties other than just ethylene oxide and propylene oxide, such as butylene oxide or hexylene oxide etc.. As way of illustration only, applicant’s multi-branched block copolymer of independent claim 1 reads on multi-branched block copolymer comprising 40 weight % propylene oxide (PO), 5 weight % ethylene oxide (EO), 35 weight % of butylene oxide (BO) and 20 weight % hexylene oxide (HO). Applicant has NO showing that such a multi-branched block copolymer in combination with an alcohol ethoxylate, would also have superior visual rating results for reduction in dry spots, improved volumetric water content and straw infiltration times, as compared to all the comparative examples.
The multi-branched block copolymer 1D used in applicant’s example 2D, has a molecular weight of 2000 g/mol for each of the 6 arms, or 12,000 g/mol for the entire multi-branched block copolymer. Yet in applicant’s independent claim 1, the limitation (iii) is far broader in scope in that it only requires that the average molecular weight of each arm is greater than 1700 g/mol. As way of illustration only, applicant’s said limitation (iii) reads on the situation wherein each arm of the multi-branched block copolymer could have an average molecular weight in excess of 300,000 g/mol. Applicant has NO showing that such a multi-branched block copolymer having such high molecular weights per arm in combination with an alcohol ethoxylate, would also have superior visual rating results for reduction in dry spots, improved volumetric water content and straw infiltration times, as compared to all the comparative examples.
Conclusion
THIS ACTION IS MADE FINAL. 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 JOSEPH DAVID ANTHONY whose telephone number is (571)272-1117. The examiner can normally be reached M-F: 10:00AM-6:30PM.
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/JOSEPH D ANTHONY/Primary Examiner, Art Unit 1764