DETAILED ACTION
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’ arguments, filed 12/11/2025, have been fully considered. Rejections and/or objections not reiterated from previous office action are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
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.
Claim1, 3, 5, 22 and 23 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 1 recites “a degree of polymerization from 2 to >100”. This renders the claim indefinite because it is unclear if these are two alternate ranges or these each represent one range. For example, if the degree of polymerization is from 2 to 100, as supported by the instant specification at page 8, lines 4 and 21. Or if the degree of polymerization is simply greater than 2. For the purposes of compact prosecution this range will be interpreted to mean a range from 2 to 100, as support by the specification at page 8. This also appears to be how Applicant is interpreting the claims. See, for example, the last paragraph of page 7 of their Remarks filed 12/11/2025, where Applicant argues naturally according beta glucans have a much higher degree of polymerization than the claimed range of “2 to >100”.
Instant claim 5 recites “an amount from about 0.1mg/l to > 100g/l.” This renders the claim indefinite because it is unclear if these are two alternate ranges or if they each represent one range. For example, it is unclear if the concentration is from 0.1mg/l to 100g/l, as support by the instant specification at page 8, line 25 and page 9, line 10. Or if the concentration is simply greater than 0.1mg/L. For the purposes of compact prosecution this range will be interpreted to mean a range from 0.1mg/l to 100g/l, as support by the specification at pages 8 and 9.
Claim Rejections - 35 USC § 103 – New by Amendment
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.
1) Claims 1, 3, 5 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Simmons (WO 2020035599 A1, publication date 02/20/2020), as evidenced by Sauerbrei (MicrobiologyOpen, 2020, v. 9, e109) and EPA (R.E.D. Facts, 1995, EPA-738-F-95-012).
Simmons discloses a composition that “comprises at least 5% mixed- linkage glucan oligosaccharides with a degree of polymerization of from two to five w/w” [p. 87, claim 159]. According to Simmons, “mixed-linkage glucan-oligosaccharides” refers to 1,3/1,4 mixed linkage β-glucans [0238]. The mixed-linkage glucan oligosaccharides “can be dissolved into a solution of various liquids including water, syrups, pastes solvents, alcohols, etc. to form the liquid composition ingredient suitable for incorporation into a foodstuff” [0394].
One of ordinary skill in the art would have understood that alcohol suitable for incorporation into a foodstuff is ethanol.
Ethanol is an antiviral and antibacterial, as evidenced by Sauerbrei at the graphical abstract.
Ethanol is also a plant growth regulator and fungicide (i.e., pesticide) as evidenced by EPA at Use Profile.
Simmons does not anticipate the instant claims because Simmons does not disclose all of the claimed components in one example or embodiment.
However, given the disclosure of each component individually, it would have been prima facie obvious for a person having ordinary skill in the art at, at the time of filling, to have selected and combined known components for their established functions with predictable results by following the teachings of Simmons. MPEP 2143 and 2144.06(I).
Additionally, the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In the present case, the instantly claimed range of 0.1 mg/l to 100g/l mixed linked glucans overlaps with the range of the prior art, which is about 50g/l or more (5% w/w of an aqueous soliton) and so a prima facie case of obviousness exists.
Therefore it, would have been obvious for one of ordinary skill in the art, at the time of filling, to have formulated a composition comprising ethanol (i.e., antiviral, fungicide and plant growth regulator) and mixed linked beta 1,3/1,4 glucans (MLGs) with a degree of polymerization between 2 and five. Wherein the MLGs are present within the instantly claimed range, as recited in instant claim 5.
2) Claims 1, 3, 5, 22 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Hefei Hundred Green Agricultural Science And Technology Co Ltd (CN 108484302 A, publication date 09/04/2018; citing English machine translations; hereinafter “Hefei”), as evidenced by Rong et al. (Food Hydrocolloids, 2017, issue 73, p. 235-242), in view of Klarzynski et al. (Plant Physiology, November 2000, Vol. 124, p. 1027-137).
Hefei discloses a fertilizer comprising propylene glycol (i.e., humectant according to instant specification at p. 11, last line), water-soluble highland barley beta glucan and natural botanical extraction liquid [abstract]. According to Hefei natural botanical extraction liquid is an aqueous solution [p. 9, Table 2).
β-glucans from highland barley are 1,3/1,4 mixed linked β-glucans, as evidenced Rong at the abstract.
Hefei does not disclose a degree of polymerization.
Klarzynski relates to beta-1,3 glucans as elicitors of defense responses in Tabacco [title]. Klarzynski discloses that responses are elicited at concentrations of 200 micrograms/mL (i.e., 200,000 micrograms/L; 0.2 g/L) [abstract]. Specifically, a 200 microgram/mL dose resulted in maximum extracellular medium alkalinization (i.e., plant defense response) [p. 128, col. 2, para. 2]. Klarzynski also discloses that the elicitor effects are specific to the linear beta 1,3 linkages [abstract] and that “five b-1,3-linked Glc units triggered a significant PAL activity” (i.e., defense marker; p. 1030, col. 1, penultimate paragraph) [p. 1033, col. 2, para. 2]. Specifically, “laminaripentaose, i.e. the laminarin oligomer made of five b-1,3-linked glucosyl residues, was a potent elicitor of PAL activity in tobacco cells” [p. 1030, col. 2, para. 1]. Furthermore, Klarzynski discloses that “[t]he rather small minimal length for recognition of b-glucan elicitors in tobacco, five Glc residues, is consistent with other observations indicating that oligoglucans shorter than seven glycosidic residues are elicitor active in various unrelated plants, including soybean” bean, alfalfa and rice [p. 1033, col. 2, para. 2].
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have applied to Klarzynski’s teaching that five b-1,3-linked glucosyl residues triggers significant plant defense response to fertilizer composition disclosed by Hefei to provide the improvement of eliciting a plant defense response. One would have had an expectation of success because the glucans of Hefei have the beta-1,3 linkages Klarzynski discloses trigger the defense responses. Additionally, one would have had an expectation of success because Klarzynski discloses oligoglucans shorter than seven glycosidic are elicitor active in various plants. See MPEP 2143, Exemplary Rationale C.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). In applying Klarzynski to improve Hefei, the ranges of polymerization and concentration of the prior art would have overlapped with the corresponding instantly claimed ranges. The minimum degree of polymerization would have been 6 (i.e., five beta-1,3 linkages and one beta-1,4 linkages) which overlaps with the instantly claimed ranges of 2 to 100 and 3 to 8. The concentration of the prior art would have been 0.2 g/L (200 mg/L) which overlaps with the instantly claimed ranges of 0.1 to 100g/L and 0.5 to 5g/L. Accordingly, a prima facie case of obviousness exists for each range.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to formulate an aqueous solution comprising a humectant (propylene glycol) and beta-1,3/beta-1,4 mixed linked glucans (water soluble highland barely beta glucan). Wherein the mixed linkage glucans have a degree of polymerization, and are present in composition, within the instantly claimed ranges.
Response to arguments
1) On page 6 of their remarks, Applicant states the range for degree of polymerization and the range of the concentration of mixed linked glucans (MLGs) are two independent ranges and requests the rejection under 35 USC 112 be withdrawn.
The Examiner respectfully maintains the rejection under 35 USC 112. The ranges for degree of polymerization and concentration were not rejected because it was unclear if the ranges of degree of polymerization and concentration represented one range or two separate ranges. Rather, the degree of polymerization was rejected because it was unclear if the recited range, “2 to >100”, represents one range, e.g., greater than 2, or two alternate ranges, e.g., 2 to 100 or greater than 100. The concentration of MLGs is rejected, separately, but for the same reason.
Additionally, the Examiner notes that for the purposes of examination the claims were interpreted as requiring degree of polymerization from 2 to 100 and a concentration from about 0.1mg/l to 100g/l. See OA mailed 08/19/2025 at page 5, lines 1-2 and page 19, line 6.
2) On page 10 of their remarks, Applicant argues that Simmons is directed to a completely different application of mixed linked glucans (MLGs) and a skilled artisan would not have expected success in using the range taught by Simmons.
This argument is not persuasive. MPEP 2112.01 II states “’Products of identical chemical composition can not have mutually exclusive properties.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.” In the present case because the prior art has the same chemical composition, i.e., beta 1,3/1,4 glucans and a fungicide (ethanol), in the same relative amounts and so one would have expected the compositions of the prior art and the instant claims to have the same chemical properties.
3) On page 11 of their remarks, Applicant argues a skilled artisan would not have been motivated to modify the composition disclosed by Hefei by reducing the MLGs present with a expectations of success in increasing production and financial profit, as desired by Hefei.
This argument is moot in view of the new grounds for rejections necessitate by amendment.
4) On page 12 of their remarks, Applicant argues a skilled artisan would not have had a reasonable expectation of success in combining the composition of Hefei with the degree of polymerization of Norja because Norja is directed to food and beverage applicants.
This argument is moot in view of the new grounds for rejections necessitated by amendment.
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.
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/C.T.W./ Examiner, Art Unit 1612
/WALTER E WEBB/ Primary Examiner, Art Unit 1612