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 .
Claims 35-58 are pending in this application.
Election, Status of claims
Applicant’s election without traverse of the invention of Group I, claims 35-49, in the reply filed on 9/30/2025 is acknowledged.
Accordingly, claims 50-58 are withdrawn from further consideration as being directed to non-elected subject matter. Claims 35-49 will presently be examined.
35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 44 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for controlling or reducing microbial contamination, does not reasonably provide enablement for “preventing microbial contamination.” The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to practice the invention commensurate in scope with these claims.
Breadth and nature of invention encompassed by claim 44 include preventing microbial contamination. Webster’s New World Dictionary definition of the term “prevent” includes “to make impossible by prior action.” It is this plenary scope that is not enabled. The state of the art is such that although microbial contamination can be controlled, minimized, or reduced, full scope of “preventing” microbial contamination has not been obtainable in the in the absence of specific environmental controls (e.g., sealed physical barrier such as biosafety cabinet), and further in the absence of a duration limitation, because microbes are ubiquitous. See Ryan, page 2, left column (“Contamination cannot be totally eliminated …”).
Although the level of one of ordinary skill in this art is high, the level of unpredictability in the art is also quite high, because making microbial contamination impossible has not been obtainable in the absence of environmental and duration limitations.
The specification provides no guidance or direction for making microbial contamination impossible without additional features such as physical barriers and limit on duration of prevention. There is no working example of preventing contamination to the full extent claimed.
For these reasons, the quantity of experimentation needed to practice the invention based on the content of the disclosure would be undue. Consequently, the claim is not enabled to the extent it requires “preventing microbial contamination.”
35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph
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 35-49 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.
(1) Throughout the claims, preferable, “more” preferable, or “most” preferable features are recited, which render the claims as a whole indefinite. Preferable features render the claims ambiguous because it is unclear whether the preferable features are merely suggestive, optional, or essential. For example, independent claim 35 recites “preferably vacuum impregnation.” Claims 38-39, and 41-49 recite numerous features written in “preferably” clauses. For example, claim 38 recites “preferably … maximum 10 minutes, preferably maximum 5 minutes, more preferably maximum 3 minutes ….” Claim 42 recites “most preferably at least 30.0 mg/kg dry substance ….” Again, these features render the claims ambiguous because it is unclear whether the preferable, more preferable, or most preferable features are merely suggestive, optional, or essential.
(2) In claim 39, examples are recited (“e.g. a growth hormone”), but examples that follow a broad genus are indefinite because they raise indefiniteness as to whether the examples are merely exemplary or limiting.
(3) In claims 40 and 47, “the plant material” lacks antecedent basis. Similarly, in claim 40, “the treated plant material” lacks antecedent basis.
(4) The silver content description in the claims is unclear. For example in claim 42, the silver content is recited as “at least 3.0 mg/kg dry substance in said at least one or more leaves” or “most preferably at least 30.0 mg/kg dry substance in said at least one leaf.” Such language is ambiguous. What constitutes “dry substance” in a leaf? Is it what is dry on an intact leaf? If so, how is that measured? Note that the claims do not state that the leaf or stem has been dried and it is that dried leaf or stem weight that the claim is using as the basis for the denominator.
(5) In claims 42 and 43, “up to at least 7 days after treatment” is unclear. The phrase “up to” conveys a ceiling, but “at least” conveys a floor. The two phrases should not be used together as here.
(6) In claim 44, “preferably wherein the active step for preventing microbial contamination involves an active treatment of the aqueous impregnation solution” is a very confusing clause. The structure can be viewed as “active step” involves “an active treatment,” which is circular and unclear. It is unclear what constitutes the active step or active treatment.
(7) Claim 47 ends with two periods.
(8) In claim 48, it is unclear what is meant by “modified atmosphere.”
35 U.S.C. 102
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.
Claims 35-40, 44, 46-47, and 49 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Makower (US 2,890,120).
Makower discloses in her Example I a method of treating shredded fresh cabbage by exposing the cabbage to vacuum impregnation in a solution that contains hydrochloric acid, alcohol (ethanol), and sodium alkyl (C12-18) benzene sulfonate, which is an anionic surface active agent. See Example I, columns 3-4. Subsequent step of washing with water is disclosed (column 5, lines 1-20). Step of dehydrating the treated cabbage is disclosed (column 5, lines 13-16). Makower does not perform pulsed electrical field (PEF) treatment.
Claims are thereby anticipated. Claims that would benefit from additional explanation are discussed below.
Claim 38 requires at least three phases: pressure falling step, pressure holding step, and pressure rising step to atmospheric level. Makower’s method has these steps because Makower places cabbage in a vessel “with means by which the vessel could be evacuated,” adds said solution, wherein the vessel is evacuated, and after a vacuum has been established, the vacuum is “broken by allowing air to enter the system” and atmospheric pressure is restored See column 4, lines 60-76.
Claim 39 requires the aqueous impregnation solution to contain one or more ingredients, which include “antimicrobial” or “antiseptic agent.” Makower’s aqueous solution contains HCl and ethanol (the “alcohol” in Example I), both of which possess antimicrobial or antiseptic functionality.
Claim 44 requires an “active step” for “preventing microbial contamination.” To the extent that “preventing” includes reducing microbial contamination, Makower’s hydrochloric acid and ethanol (alcohol) would reduce microbial contamination.
Claim 46 requires “partial” impregnation, wherein the biological material receives a maximum of 50% weight gain after the partial impregnation. Although Makower does not explicitly disclose weight gain after impregnation with a solution comprising hydrochloric acid, alcohol (ethanol), and sodium alkyl (C12-18) benzene sulfonate, Makower performs additional vacuum impregnation with an aqueous solution of sodium carbonate, vacuum impregnation with plain water, and then dehydration under vacuum. See column 5, lines 1-20. Therefore, Makower’s final product after the dehydration step would not have more than 50% weight gain from vacuum impregnation.
Claim 47 requires “a resting period is applied subsequent to the vacuum or pressure impregnation,” wherein the resting period can involve removing water from the plant material. Makower discloses steps of washing with water and dehydrating, which are readable on claimed “resting period.”
For these reasons, claims 35-40, 44, 46-47, and 49 are anticipated.
35 U.S.C. 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.
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 35-40 and 44-49 are rejected under 35 U.S.C. 103 as being unpatentable over Makower (US 2,890,120).
It is noted that claims 35-40, 44, 46-47, and 49 were previously rejected under 35 USC 102(a)(1) over Makower. This ground of rejection includes those claims as well as claim 45 and 48.
Makower discloses in her Example I a method of treating shredded fresh cabbage by exposing the cabbage to vacuum impregnation in a solution that contains hydrochloric acid, alcohol (ethanol), and sodium alkyl (C12-18) benzene sulfonate, which is an anionic surface active agent. See Example I, columns 3-4. Makower means ethanol by “alcohol” in Example I, as can be understood from column 2, lines 47, wherein alternatives such as propyl alcohol and isopropyl alcohol are referred to as “other solvents.” Makower discloses that vacuum impregnation is well known in the art in other applications and it involves immersing the plant material in a treatment solution, subjecting the system to vacuum, and then releasing the vacuum, which allows the solution to enter the “innermost recesses of the plant tissue” (column 3, lines 58-70).
Subsequent step of washing with water is disclosed (column 4, lines 23-27; column 5, lines 1-20). Step of dehydrating the treated cabbage is disclosed (column 4, lines 30-34; column 5, lines 13-16). Cold storage at about 32-50 °F (0-10 °C) is disclosed (column 4, lines 34-37). Makower does not disclose pulsed electrical field (PEF) treatment.
Claims 35-40, 44, 46-47, 49 (previously discussed as anticipated by Makower)
Claims 35-40, 44, 46-47, and 49 would have been obvious to the ordinary skilled artisan because Makower teaches a method of treating plant materials by vacuum impregnation of an aqueous solution comprising HCl, ethanol, and an anionic surfactant, wherein PEF treatment is not performed. Several specific claims are discussed below for further explanation.
Claim 38 requires at least three phases: pressure falling step, pressure holding step, and pressure rising step to atmospheric level. Makower’s method has these steps because Makower places cabbage in a vessel “with means by which the vessel could be evacuated,” adds said solution, wherein the vessel is evacuated, and after a vacuum has been established, the vacuum is “broken by allowing air to enter the system” and atmospheric pressure is restored See column 4, lines 60-76.
Claim 39 requires the aqueous impregnation solution to contain one or more ingredients, which include “antimicrobial” or “antiseptic agent.” Makower’s aqueous solution contains HCl and ethanol (the “alcohol” in Example I), both of which possess antimicrobial or antiseptic functionality.
Claim 44 requires an “active step” for “preventing microbial contamination.” To the extent that “preventing” includes reducing microbial contamination, Makower’s hydrochloric acid and ethanol (alcohol) would reduce microbial contamination.
Claim 46 requires “partial” impregnation, wherein the biological material receives a maximum of 50% weight gain after the partial impregnation. Although Makower does not explicitly disclose weight gain after impregnation with a solution comprising hydrochloric acid, alcohol (ethanol), and sodium alkyl (C12-18) benzene sulfonate, Makower performs additional vacuum impregnation with an aqueous solution of sodium carbonate, vacuum impregnation with plain water, and then dehydration under vacuum. See column 5, lines 1-20. Therefore, Makower’s final product after the dehydration step would not have more than 50% weight gain from vacuum impregnation.
Claim 47 requires “a resting period is applied subsequent to the vacuum or pressure impregnation,” wherein the resting period can involve removing water from the plant material. Makower discloses steps of washing with water and dehydrating, which are readable on claimed “resting period.”
Claim 45 (not anticipated by Makower)
Regarding claim 45, Makower does not explicitly exemplify a washing step comprising immersing the treated biological material into water “to wash sugars from the surface of the treated biological materials.” Although Makower does not specifically disclose immersion in the washing step, but Makower teaches washing with water for removal of salt, wherein additional vacuum impregnation is taught (column 4, lines 23-27). Immersion for removal of salt would have been an obvious washing step; and furthermore, the additional vacuum impregnation step for salt removal would require impregnation. As for “to wash sugars from the surface of the treated biological material,” it is noted that there is no prior application of sugar in claim 45 or its base claim 35. Thus, any sugar that could be present would be necessarily washed by washing with water as disclosed by Makower. For these reasons, the embodiment of claim 45 would have been obvious.
Claim 48 (not anticipated by Makower)
Regarding claim 48, Makower does not explicitly exemplify storing the biological material in a controlled storing environment. However, Makower discloses cold storage at about 0-10 °C, so the embodiment of claim 48 would have been obvious.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, because every element of the invention and the claimed invention as a whole have been fairly disclosed or suggested by the teachings of the cited reference.
35 U.S.C. 103
Claims 35-36 and 38-49 are rejected under 35 U.S.C. 103 as obvious over WO 2020/1227981 in view of Demir et al. (US 2018/0064124) and Kofranek et al. (hereinafter, Kofranek).
WO 2020/122798 discloses treating plant material comprising the following steps (see claims 1-3, 6, 20):
- exposing plant material such as one or more of sprouts, cuttings, or cut flowers to vacuum impregnation in an aqueous solution that can contain various additives such as gamma-aminobutyric acid (GABA), 1-MCP, amino acids, silver nitrate;
- applying pulsed electrical field (PEF) treatment to the plant material in the aqueous solution before, simultaneously, or after vacuum impregnation;
- drying the plant material for removing water/moisture before packing the treated plant material;
- further comprising an active step for preventing microbial contamination of the aqueous solution by adding one or more antimicrobial agents, e.g., fungicides, bactericides, to the aqueous solutions (page 4, lines 3-7);
WO 2020/122798 further discloses partial impregnation, wherein the plant material receives a maximum of 50 wt% weight gain after the partial impregnation (claim 5). Partial impregnation means that “not all of the air fraction is removed from the plant tissue, i.e. just some part of the air inside of the plant material is replaced with solution” (page 4, lines 29-32). The aqueous solution can be recirculated and reused (claim 8); and the aqueous solution can contain sugars such as glucose, trehalose, sucrose, fructose, plant hormones, antiseptic, carbohydrates, minerals, pesticides, and mixtures thereof (page 4, lines 8-23; page 5, lines 15-20), or “any type of agent” that can treat or affect the plant/flower tissue” (page 5, lines 21-22). After PEF treatment, cuttings of Pelargonium plants are washed in tap water having a temperature between 4-10 °C and then placed on a net to rest (page 8, lines 30-33). Resting period subsequent to PEF treatment and vacuum impregnation is thus disclosed (page 8, lines 16-33; claims 10-12). Resting period involves putting the plant material on a net material to remove water from surfaces of the plant material (claim 13). Resting period ensures that the plant material regains structure stability when coming from a wet environment before being dried actively (sentence bridging pages 6-7). Storing the plant material in a controlled environment, including at a temperature of 4-10 °C (claims 15-16), at humidity above 50% (claim 17), and incorporating the plant material into one or more packages with modified atmosphere (claim 18). Treating only a part of a plant material, such as only a part of a cutting, a part of a stem, only a flower, as well as treating entire plant material is disclosed (page 2, lines 9-16; page 5, lines 1-3). Variations in steps are disclosed (page 4, lines 24-25), including variations in steps of vacuum impregnation (page 2, lines 31-32). Prolonged shelf life is disclosed (page 3, lines 17-18; page 7, lines 17-19).
Demir et al. (US 2018/0064124) disclose method of extending shelf life of “any type” of biological soft tissue, e.g., edible plant tissue (paragraphs 1, 41) by introducing cell protective agents in to the extracellular and intracellular space of the biological soft tissue, rinsing, and cold storing (paragraphs 5-9, 36-38; claim 16). Many different types of cell protecting agents are disclosed, including proteins and sugars such as glucose, sucrose, trehalose (paragraph 12). Introduction of the cell protecting agents is obtained by vacuum impregnation (paragraphs 25-28), wherein time of impregnating under vacuum can vary from 30 seconds to 120 minutes (paragraph 42).
Kofranek discloses the benefits of impregnating cut flowers with a solution silver nitrate in providing longevity (see the entire article). Concentrations of 20-35 ppm, 1,000 ppm, and 1,200 ppm silver nitrate for cut flowers are disclosed (page 199-202). Addition of sucrose treatment further improved longevity (abstract; pages 200-202).
WO 2020/122798 does not explicitly disclose an aqueous impregnation solution comprising at least one surfactant. However, WO 2020/122798 teaches that the aqueous solution can contain many different types of substances such as carbohydrates, hormones, antiseptics, minerals, pesticides, any agent that can treat or affect plant/flower tissue thereof, so it would have been obvious to the ordinary skilled artisan that a surfactant such as an anionic surfactant would be beneficial to formulate and mix the various ingredients that can be present in the aqueous solution to be impregnated under vacuum.
Claim 38 recites at least three phases of vacuum impregnation: pressure falling step, pressure holding step, and pressure rising step. Although these steps are not explicitly spelled out in WO 2020/122798, it would have been obvious to the ordinary skilled artisan that vacuum impregnation necessarily includes these steps. For example, in the Example disclosed on pages 8-9 of WO 2020/122798, cuttings of geraniums are placed in a vacuum chamber where pressure is gradually decreased, and then the cuttings were removed from the vacuum chamber. Clearly, such steps would include a pressure falling step, pressure holding step, and repressurizing step.
Claim 41 reads on treating cut flowers comprising a stem, “possibly one or more leaves” wherein vacuum impregnation is applied during one or more short cycles of maximum 3 minutes. WO 2020/122798 does not explicitly disclose duration of vacuum impregnation step, but Demir et al. (US 2018/0064124) teach that the time of vacuum impregnation of plant tissue can vary in a wide range, from 30 seconds to 120 minutes (paragraph 42). The ordinary skilled artisan would have found it obvious to adjust the duration of vacuum impregnation to maximum 3 minutes, because WO 2020/122798 teaches “partial impregnation may be preferable in some cases” (page 4, lines 32-33). Short cycle of applying vacuum impregnation would have been expected to obtain partial impregnation.
Claims 42 and 43 recite silver in the impregnation solution and silver content in leaves or stem. WO 2020/122798 does not disclose specific silver content in a leaf or stem. However, instant specification discloses that a naturally occurring cut flower leaves contain 2.79 mg/kg dry matter (page 11), which is 0.000279 wt% of silver or 2.79 ppm silver, and the method of treating cut flowers by WO 2020/122798 is the same or similar to the method used by the instant invention (specification page 3, lines 4-5; page 5, lines 10-14; page 9, lines 21-22). Thus, it would have been obvious to the ordinary skilled artisan to treat cut flowers with vacuum impregnation of aqueous solution of silver nitrate, as taught by WO 2020/122798 and further suggested by Kofranek (e.g., 20-35 ppm silver nitrate for cut flower) .
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, because every element of the invention and the claimed invention as a whole have been fairly disclosed or suggested by the teachings of the cited references.
For the foregoing reasons, all claims must be rejected. No claim is allowed.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 35-49 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/025,464 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because of the following reasons.
Claims of the reference substantially overlaps with those of the instant application. The reference application claims the following:
- arranging one or more cut flowers in an impregnation solution which comprises at least one silver containing substance (claim 6), which impregnation solution can further contain at least one surfactant such as an anionic surfactant (claims 8-9), a least one sugar such as glucose, trehalose, fructose, vitamin, mineral, growth hormone, antimicrobial, GABA, 1-MCP (claims 11-13);
- applying vacuum impregnation or pressure impregnation (claim 7) in a minimum pressure range of 60-300 mbar for a treatment time of 5 seconds to 15 minutes or 5 seconds to 5 minutes (claim 15);
- at least a portion of the stem of cut flowers are immersed in the impregnation solution, but the flower bud is free from impregnation solution (claim 10);
- the method can be free from performing a PEF step or involve a step of applying PEF (claims 16-17);
- further step of washing comprising immersing cut flowers into water to wash sugars and/or other substances from the surface of cut flowers, wherein immersing is performed so that the flower bud is excluded from being immersed (claim 18);
- cut flowers are subjected to a cooling step at 5-10 °C after the washing step, said cooling step being a recovering step (claims 19-20); and
- the cut flower has leaf sliver content of at least 3.0 mg/kg dry substance, as measured up to 7 days after measurement or up to 14 days after measurement (claims 1-4) and stem silver content of at least 10 mg/kg dry substance in the stem (claim 5).
Therefore, the ordinary skilled artisan would have recognized the instant claimed invention as an obvious variation of the invention set forth in the claims of the reference application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
For the foregoing reasons, all claims are rejected. No claim is allowed.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to JOHN PAK whose telephone number is (571)272-0620. The Examiner can normally be reached on Monday to Friday from 8:30 AM to 5 PM.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's SPE, Fereydoun Sajjadi, can be reached on (571)272-3311. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
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/JOHN PAK/Primary Examiner, Art Unit 1699
1 See the IDS of 4/6/2023, foreign patent citation no. B8.