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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05/26/2026 has been entered.
Applicants’ arguments, filed 05/26/2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 § 102 / 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.
35 USC § 102
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.
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 1, 3 and 22 are rejected under 35 U.S.C. 102((a)(1)) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Stubler et al. (Journal of Phytopathology, 1996, v. 144, p. 37-43), as evidenced by McMullan (Weed technology, 2000, v. 14, p. 792-797).
Stubler discloses “Lichenan is a linear glucan of {1 ->3, I ->4}-beta-glycosidic bonds in a ratio of 1:2 that originates from the lichen Cetraria lilandica. Lichenan at 5-1000 ug/ml exhibited antiviral activity against mechanically-transmitted viruses of different taxonomic groups” [abstract]. In the study Stubler discloses “[f]or injection, solutions of lichenan in 0.01 M Na; HPO4/KH2PO4 buffer (pH 7.0)” [p. 38, col. 2, lines 6-9]. According to Stubler “Lichenan is a linear glucan of varying length with an average degree of polymerization (DP) of 80-400”[p. 38, col. 2, first sentence of last paragraph]. The solutions for injections were prepared at lichenan concentration of 100 micrograms/mL (i.e., 100,000 micrograms/L or 0.1 g/l) [p. 42, Table 5].
Buffers are adjuvants in the context of agricultural compositions, as evidenced by McMullan at the abstract.
The prior art anticipates instant claims 1, 3 and 22 because it discloses compositions comprising 1-3,1-4 mixed linked beta-glucans in an amount between 0.1mg/l and 40 g/l (and 0.5mg/l and 5g/l; instant claim 22) and an adjuvant. Wherein the 1-3/1-4 mixed linked beta-glucans comprise a degree of polymerization from 2-100. Wherein the composition is an aqueous solution.
Alternatively, 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 the present case, the instantly claimed ranges for degree of polymerization (2-100) and concentration (0.1mg/L-40g/L and 0.5mg/L-5g/L; instant claims 1 and 22, respectively) of 1-3/1-4 mixed linked beta-glucans overlap with the ranges of the prior art (80-400 and 0.1 g/L, respectively) and so a prima facie case of obviousness exists for each range.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated an aqueous solution comprising 1-3/1-4 mixed linked beta-glucans and an adjuvant (buffer). Wherein the 1-3/1-4 mixed linked beta-glucans are have a degree of polymerization and are present at concentrations within the instantly claimed ranges.
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.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Stubler et al. (Journal of Phytopathology, 1996, v. 144, p. 37-43), as evidenced by McMullan (Weed technology, 2000, v. 14, p. 792-797) and in further view of McMullan (Weed technology, 2000, v. 14, p. 792-797).
Stubler does not anticipate instant claim 23 because it does not disclose an example or embodiment of mixed linked-glucans with a degree of polymerization between 2 and 8 in a composition with an adjuvant
Stubler discloses “Lichenan is a linear glucan of {1 ->3, I ->4}-beta-glycosidic bonds in a ratio of 1:2 that originates from the lichen Cetraria lilandica. Lichenan at 5-1000 ug/ml exhibited antiviral activity against mechanically-transmitted viruses of different taxonomic groups” [abstract]. Stubler studied the antiviral effectiveness of hydrolysis fractions of lichenan (DPs 6-30; 30-60; 60-190; > 190) in addition to lichenan (see, e.g., p. 40, Table 1 and p. 41, Figure 2, respectively). Stubler discloses “significant inhibition was achieved with lichenan concentrations [>/=] 5µg/l” (i.e., 5mg/L) [p. 40, col. 1, last paragraph] and that “[l]ichenan and hydrolysis fractions of lichenan (DPs 6-30; 30-60; 60-190; > 190) reduced average infectivity of TMV to the same degree” [p. 42, second para., lines 1-3]. Finally, Stubler discloses “[l]ichenan dissolved at 100 µg/mL in 0.01 M Na2HPO4/ KH2PO4 buffer” and sprayed onto leaves significantly reduced leaf lesions, as compared to injection application of the same [p. 42, Table 5].
McMullan relates to adjuvants in agrochemical compositions [abstract]. McMullan teaches that adjuvants do not directly influence the effectiveness of an herbicide (i.e., active agent) but, “by improving the spray application process, utility adjuvants can indirectly improve herbicide efficacy. There are five primary utility adjuvant types: compatibility agents, deposition agents, drift control agents (sometimes referred to as antidrift agents or drift retardants), defoaming agents, and water conditioning agents, and three secondary utility adjuvant types: acidifying agents, buffering agents, and colorants (dye markers)” [abstract].
First, given the disclosure of each component individually, it would have been prima facie obvious for a person having ordinary skill in the art at, before the effective filling date of the claimed invention, to have selected and combined known components for their established functions with predictable results by following the teachings of Stubler. MPEP 2143 and 2144.06(I). Namely, it would have been obvious for one of ordinary skill in the art, before the effective filling date of the claimed invention, to have combined the spray solutions with hydrolysis fractions of lichenan (DPs 6-30; 30-60; 60-190; > 190) at concentrations greater than or equal to 5µg/l.
Second, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have combined the solutions taught by Stubler with the adjuvants disclosed by McMullan. One would have been motivated to make this combination because McMullan discloses adjuvants provide the desirable effect of improving active agent efficacy. One would have had an expectation of success because the adjuvants of McMullan enhance efficacy by improving the spray application process, and do not directly influence the active agent. In other words, a skilled artisan would have expected the adjuvants of McMullan to improve the efficacy of the hydrolyzed lichenan of Stubler because the adjuvants of McMullan enhance efficacy by improving the spray application, and do not rely on specific interactions with the active agent (i.e., herbicide of McMullan). Additionally, in combining these elements one would have expected nothing more than predictable results because, when combined by known methods, each prior art element would have performed the same function as it had separately. See MPEP 2143, Exemplary Rationale A.
Finally, 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 the present case, the instantly claimed ranges for degree of polymerization (2-8; instant claim 23) and concentration (0.5mg/L-5g/L; instant claim 22) of 1-3/1-4 mixed linked beta-glucans overlap with the ranges of the prior art (6-30 and >/= 5mg/L, respectively) and so a prima facie case of obviousness exists for each range.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filling date of the claimed invention, to have formulated an aqueous solution comprising 1-3/1-4 mixed linked beta-glucans and an adjuvant. Wherein the 1-3/1-4 mixed linked beta-glucans are present at the instantly claimed concentrations. Wherein the 1-3/1-4 mixed linked beta-glucans have a degree of polymerization within the instantly claimed range (i.e., hydrolysis fraction of lichenan with DP 6-30).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, 3, 22 and 23 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to COLMAN WELLES whose telephone number is (571)272-3843. The examiner can normally be reached Monday - Friday, 8:30am - 5:00pm ET.
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/C.T.W./Examiner, Art Unit 1612
/WALTER E WEBB/Primary Examiner, Art Unit 1612
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