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 .
Previously pending claims 1-25 have been canceled, and new claims 26-51 have been added.
Applicant's election with traverse of the invention of Group II, claims 37-49, in the reply filed on 8/14/2025 is acknowledged. The traversal is on the ground(s) that Groups I to IV are “united by a common inventive concept: biopolymers that are functionally engineered to perform specific biological roles within the intended application, which can also be applied as a delivery system for agrochemicals (claims 37-49) and consumer products (New Claim 51).” Applicant argues that “the special technical feature uniting all claims is the use of extracted, functionally engineered biopolymers from bio-waste (or a commercially available biopolymer) and their delivery system tailored for an intended biological activity, which can be applicable across multiple fields.”
This is not found persuasive because of the following reasons. Applicant is reminded that a common inventive concept or a shared inventive concept is not necessarily a “special technical feature,” which is a technical feature that defines a contribution, which each of the invention, considered as a whole, makes over the prior art. The “contribution over the prior art” is considered with respect to novelty and inventive step. Thus, if the common inventive concept or shared inventive concept is already known, there is lack of unity of invention since said common or shared inventive concept is not a technical feature that defines a contribution over the prior art. See MPEP 1850 section II, the example of A + X and A + Y.
In the present fact situation, Applicant fails to take into account the actual claim language in evaluating what is or is not a common inventive concept and whether such common inventive concept is a “special technical feature.” With respect to Group II, all that is required by independent claim 37 is chain bio-polymers + at least one additional functional group; thus the common technical feature would be chain bio-polymers between the invention Groups I, II, III, and IV. Additionally, this Office action establishes that Raczek (US 2002/0176910) and Jakob et al. (US 2018/0035663) anticipate and render obvious the composition of Group II. See the full discussion of these documents and their application to find anticipation and obviousness of Group II invention on pages 5-12 of this Office action.
Applicant argues further that there is “crucial distinction” in that the biopolymer matrix in the current invention is not merely an inert, passive carrier but a functional co-agent with intrinsic biological activity and transport capabilities, going beyond just transporting or protecting the active ingredient.” However, this is not reflected by the claim language of independent claim 37. Applicant is arguing an inventive feature that is not recited in independent claim 37.
For these reasons, the claims lack unity of invention because the common, shared, same, or corresponding technical feature is not a “special technical feature” which makes a contribution over the prior art.
The requirement is still deemed proper and is therefore made FINAL.
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 43 and 44 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) Claim 43 is reproduced below with markings.
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As can be seen from above, “said bioactive agent” in line 14 is confusing
because there are two bioactive agents of different scope that were recited previously in the claim: bioactive agent from line 1 and encapsulated bioactive agent from line 4. Therefore, it is unclear how “said” should be applied or interpreted in line 14 of claim 43.
(2) Claim 44 recites “responsive intelligent delivery systems.” The full metes and bounds of “intelligent” are unclear. Does it include a computer chip, for example. How is intelligence measured to determine whether the system is within the scop of the invention or outside the scope of the invention?
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 37- 40 and 42-49 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Raczek (US 2002/0176910).
Raczek discloses 20 mg/kg of bacteriocin sprayed with whey powder, dried and enriched with bacteriocins, mixed with sorbic acid, and mixed with piglet feed comprising fish meal, extracted soybean meal, barley, wheat, vegetable oil, amino acids, and mineral feed (Example 1). Raczek also discloses a mixture of nisin and whey proteins and sorbic acid further mixed with piglet feed comprising extracted soybean meal, barley, wheat, vegetable oil, amino acids, and mineral feed (Example 2).
Claims 37-38: agrochemical composition comprising chain biopolymers modified to include least one additional “functional group”
At the outset, it is noted that claim 38 shows that “functional group” can be a bioactive molecule, and claim 43 shows that the chain bio-polymer can be “non-covalently attached to the bioactive molecule” or “positioned between two chain bio-polymers.”
In Raczek’s disclosure, there are multiple chain bio-polymers because his Examples 1 and 2 contain various proteins (whey protein, protein from fish meal, protein from soybean meal), polysaccharides (soybean meal, wheat, barley), lipid (vegetable oil, fish meal, soybean meal), and lignin (wheat, barley), and at least bacteriocin of Example 1 and nisin of Example 2 would qualify as a bioactive molecule or anchoring peptide because the similar plantaricin A is categorized as an anchoring peptide in claim 41. Based on the broad scope encompassed by the claimed invention, the claims are readable on Raczek’s Examples 1 and 2.
As for the claim language, “agricultural composition,” Raczek’s composition includes use as feed stuff for agricultural animals, e.g., piglets and cattle (paragraph 28, claims 8-13).
Claim 39: chain biopolymers “originate from a commercial source”
Under the present fact situation, whether the chain biopolymers of the composition are from a commercial source or non-commercial source does not make a difference in the composition being claimed. The feature of claim 39 fails to distinguish over Raczek’s disclosure.
Claim 40: “the anchoring peptide and/or the targeting molecule is attached to the chain biopolymers”
Claim 40 does not actually require selection of the anchoring peptide or targeting
molecule. Claim 40 is thereby anticipated. Alternatively, the bioactive bacteriocin of Raczek’s Example 1 or nisin of Raczek’s Example 2 can be considered as anchoring peptide since claim 41 shows that plantaricin A is an anchoring peptide. Both Plantaricin A and nisin are bacteriocins, so their functionality would be the same.
Claim 42: further comprising peptide agents, polysaccharide, lipids, nitrogen, carbohydrates
As discussed previously, Raczek’s compositions contain various proteins (whey protein, protein from fish meal, protein from soybean meal), polysaccharides (soybean meal, wheat, barley), lipid (vegetable oil, fish meal, soybean meal), lignin (wheat, barley), and amino acid (nitrogen source).
Claim 43: at least one bioactive agent is non-covalently attached to a chain bio-polymer or positioned between two chain bio-polymers, wherein said bioactive agent enhances stability, targeted release, bioavailability, uptake efficiency, environmental persistence, or resistance to hydrolysis, photodegradation, leaching, or volatilization
Raczek’s composition of Examples 1 and 2 contain multiple biopolymers and
multiple bioactive agents (which can be biopolymers) that meet Applicant’s claim language. Various proteins (whey protein, protein from fish meal, protein from soybean meal), polysaccharides (soybean meal, wheat, barley), lipid (vegetable oil, fish meal, soybean meal), and lignin (wheat, barley) are both biopolymers and bioactive agents; and bacteriocin and nisin are bioactive agents. Given the broad scope of the “wherein” clause, enhancement of at least one of stability, targeted release, bioavailability, uptake efficiency, environmental persistence, or resistance to hydrolysis, photodegradation, leaching, or volatilization would have been necessarily possessed by the bioactive agents of Raczek’s composition. For example, the vegetable oil of Raczek’s composition is a lipid bioactive agent, which can at least function as a barrier to volatilization.
Claim 44: the chain bio-polymers are formulated as “responsive intelligent delivery systems,” said bio-polymers “having the capability to release bioactive agents in response to specific environmental stimuli, as well as by diffusion through a pore network”
Indefiniteness of “responsive intelligent delivery systems” has already been discussed in this Office action. Raczek’s composition has the capability of releasing its contents in response to some environmental stimuli (e.g., heat, stomach acid), and it also has the capability of diffusion through a pore network (e.g., stomach).
Claim 45: environmental stimuli includes pH changes, enzymatic activity, biological signals
Raczek’s composition is ingested by agricultural animals, so the composition would certainly encounter pH changes, enzyme activity, and biological signals.
Claim 46: bio-polymers are protein, polysaccharide, natural extract, derived from plant
See above discussions concerning Raczek’s biopolymers.
Claim 47: bio-polymers include lignin
Wheat, barley, and soybean meal all contain lignin.
Claims 48-49: further comprising one or more functional molecules, including polysaccharides, inorganic components, carbohydrates, lipids
As previously set forth, Raczek’s compositions contain multiple functional molecules, bio-polymers, and substances that fall within “functional group,” including bioactive molecules and anchoring peptide. The mineral feed of Raczek’s Examples 1 and 2 would at least meet the “further comprising” feature of these claims.
For these reasons, claims 37- 40 and 42-49 are anticipated.
Claims 37-49 are rejected under 35 U.S.C. 103 as being unpatentable over Raczek (US 2002/0176910).
Teachings of Raczek as they pertain to his Examples 1 and 2 were discussed in the previously set forth ground of rejection, and the discussions there are incorporated herein by reference. For the purpose of this ground of rejection, additional teachings by Raczek are discussed.
Raczek further discloses that the antimicrobial bacteriocin can be plantaricin A (claim 4; see also paragraph 5).
The compositions of claims 37-40 and 42-49 would have been obvious for the reasons stated previously and incorporated herein by reference. The composition of instant claim 41 would have been obvious because Raczek teaches the use of plantaricin A as the bacteriocin.
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.
Claims 37-40 and 42-45 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jakob et al. (US 2018/0035663; hereinafter, Jakob).
Jakob et al. disclose a plant protection or plant growth promotion system comprising (claim 1):
at least one anchor peptide for increasing binding to a plant,
a support function which is directly/indirectly bound to the anchor peptide, and
active substance for protecting plant or promoting plant growth and/or yield.
The active substance can be a pesticide, herbicide, bactericide, fungicide, beneficial organism, means for promoting plant growth and/or colonization of beneficial organisms, or plant growth agents (claim 3). The support function includes nanogel, microgel, polymersome, poly-amino acid spacer (claim 4), including a spacer of 2-100 amino acids (claim 9). The anchor peptide binds to a leaf, trunk, stem, root, fruit, seed, bud, blossom and/or tuber of a plant (claim 5). Jakob’s support function is stimulation dependently released, wherein the stimulus can be pH, temperature, light, enzymatic reactions, light, electric pulses, magnetic pulses, elicitor (claim 7).
Claims 37-38: agrochemical composition comprising chain biopolymers, micro particles, and/or nanoparticles modified to include least one additional “functional group”
Jakob’s nanogel, microgel, polymersome, poly-amino acid spacer fall within Applicant’s chain bio-polymers, microparticles and/or nanoparticles.
Jakob’s anchor peptide falls within Applicant’s “functional group.”
Claim 39: chain biopolymers, microparticles, and/or nanoparticles “originate from a commercial source”
Under the present fact situation, whether the chain biopolymers of the composition are from a commercial source or non-commercial source does not make a difference in the composition being claimed. The feature of claim 39 fails to distinguish over Jakob’s disclosure.
Claim 40: “the anchoring peptide and/or the targeting molecule is attached to the chain biopolymers, microparticles, and/or nanoparticles”
Claim 40 does not actually require selection of the anchoring peptide or targeting
molecule. Moreover, Jakob’s “support function” is bound directly or indirectly to the anchor peptide (claim 1).
Claim 42: further comprising bactericide, fungicide, insecticide, herbicide, plant nutrient
Jakob’s active substance is for protecting the plant, promoting growth and/or yield, including the same active substances, e.g., pesticide, herbicide, plant growth agents (claim 3).
Claim 43: at least one bioactive agent is covalently or non-covalently attached to a chain bio-polymer or positioned between two chain bio-polymers, wherein said bioactive agent enhances stability, targeted release, bioavailability, uptake efficiency, environmental persistence, or resistance to hydrolysis, photodegradation, leaching, or volatilization
Jakob’s “support function,” which can be nanogel, microgel, polymersome, or poly-amino acid spacer, is directly or indirectly bound to the anchor peptide (claims 1, 4). Thus, at least the characteristic of targeted release, environmental persistence, and/or resistance to hydrolysis or leaching would be possessed by Jakob’s composition.
Claim 44: the chain bio-polymers are formulated as “responsive intelligent delivery systems,” said bio-polymers “having the capability to release bioactive agents in response to specific environmental stimuli, as well as by diffusion through a pore network”; claim 45, environmental stimuli are pH changes, enzyme activity, biological signals, temperature fluctuations, electromagnetic radiation
Indefiniteness of “responsive intelligent delivery systems” has already been discussed in this Office action. Jakob’s “support function” is stimulation dependently released, wherein the stimulus can be pH, temperature, light, enzymatic reactions, light, electric pulses, magnetic pulses, elicitor (claim 7). Jakob’s nanogels would have the capability to diffuse through a pore network.
For these reasons, claims 37-40 and 42-45 are anticipated.
Claims 37-46 and 48-49 are rejected under 35 U.S.C. 103 as being unpatentable over Jakob (US 2018/0035663).
This ground of rejection is intended to further address claims 41, 45-46, and 48-49 as they relate to Jakob’s teachings, which were discussed in the previously set forth ground of rejection and which discussions are incorporated herein by reference. For the purpose of this ground of rejection, additional teachings by Jakob are discussed.
Jakob’s anchor peptide includes plantaricin A (page 5, table 1; paragraphs 54-55; table on page 17). The “support function” can be nanogel, microgel, polymersome (paragraph 29), polypeptide chain spacer (paragraphs 30-31). The nanogels are particles of 50-200 nm in size (paragraph 32). The nano- or microgel is configured such that the active substance remains on the support or is directly, time-delayed and/or stimulation dependently released (paragraph 35). Jakob’s system can be a fusion protein, where the anchor peptide, the support function, and active substance each consist of peptides (paragraph 39). The active substances also include plant nutrients or hormones (paragraph 27), antimicrobial peptides such as thanatin, osmotin, dermaseptin SI, pathogenesis-related proteins, GDSL-lipases (paragraph 28).
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.
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
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