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 .
This Office Action is in response to Applicant’s request for reconsideration filed January 28, 2026. Claims 1, 4, 6-9, 12, and 18-21 are pending in the application. Claims 7, 8, 12 and 18-21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and species. Claims 1, 4, 6 and 9 will presently be examined to the extent they read on the elected subject matter of record.
Election/Restrictions
Applicant argues that the office acknowledges that only claims 12 and 18-21 are withdrawn from consideration and then states that claims 7, 8, 12 and 18-21 are withdrawn from further consideration. In response to Applicant’s argument, in the response to the Restriction Requirement on 7/18/2025, Applicant provisionally elected herbicide as the election of species. Claims 4 and 6 read on the elected species. Claims 7 and 8 are directed to non-elected species of insecticide and fungicide. The examiner inadvertently omitted claims 7 and 8 from the initial statement, however, it is indicated in subsequent statement and on the Office Action Summary.
Regarding Applicant’s argument regarding the pesticide component, this is not a special technical feature, the pesticide component is directed to 3 different and distinct types of pesticides, herbicide, insecticide, and fungicide, which have different modes of action and structures. In addition, there is a search and/or examination burden for the patentably distinct species as they would require a different field of search (including searching different classes/subclasses or electronic resources, or employing different search queries) and the prior art applicable to one species would not likely be applicable to another species.
The requirement is still deemed proper and is therefore made FINAL.
Claims 17, 8, 12 and 18-21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made with traverse in the reply filed on July 18, 2025.
Claims 1, 4, 6-9, 12, and 18-21 are pending in the application. Claims 7, 8, 12 and 18-21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Status of the Claims
The rejection of claim 1 under 35 U.S.C. 103 as being unpatentable over Tsujimoto et al. (EP 0686340) in view of Suh (KR 0183517 B1, Translation) and Yvin et al. (US 5,750,472) is maintained.
The rejection of claims 4, 6, and 9 under 35 U.S.C. 103 as being unpatentable over Tsujimoto et al. (EP 0686340) in view of Suh (KR 0183517 B1, Translation) and Yvin et al. (US 5,750,472) as applied to claim 1 above, and further in view of Forlivio et al. (WO 2016/081768) is maintained.
The following rejections are reiterated. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
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.
Claim Rejections - 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.
Claims 1 is rejected under 35 U.S.C. 103 as being unpatentable over Tsujimoto et al. (EP 0686340) in view of Suh (KR 0183517 B1, Translation) and Yvin et al. (US 5,750,472).
Applicant’s Invention
Applicant claims a method comprising applying to a locus of a plant in the following sequence: a superabsorbent polymer at a sowing stage; a microbial consortium at a land preparation stage; and laminarin, Ascophyllum nodosum extract, ortho-silicic acid or combinations thereof at a flowering stage or vegetative stage.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claim 1, Tsujimoto et al. teach a method of improving germination of seeds which comprises adding the seeds to a solid form superabsorbent polymer that has absorbed water (Abstract). Tsujimoto et al. teach the superabsorbent polymer is caused to absorb several times its empty weight of water. Tsujimoto et al. teach that seeds are added to a part by volume of the superabsorbent polymer after water absorption, and the whole is stirred from mixing. Thereafter, the resulting mixture is maintained at a temperature of about 10 to 30˚C (normally at the optimal temperature for the germination of target seeds) for a period of 1 to 14 days (the time required for intra-seed metabolic processes to proceed, normally the time for germination following sowing of target seeds (page 4, lines 49-58-page 5, lines 1-2).
Tsujimoto et al. teach the seeds may also be treated with a pesticide or the like before or after the hydration treatment (page 5, lines 21-22).
Tsujimoto et al. teach enhanced germination due to the controlled hydration treatment was observed (page 7, lines 1-8).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Tsujimoto et al. do not specifically disclose the method includes a microbial consortium at a land preparation stage; and laminarin, Ascophyllum nodosum extract, ortho-silicic acid or combinations thereof at a flowering stage or vegetative stage. It is for this reason Suh and Yvin et al. are added as secondary references.
Regarding claim 1, Suh teaches a plant growth promoting composition, a preparation method and a method of using the same. The composition comprises at least one of pectin, alginic acid…laminarin, carboxymethyl cellulose to promote growth without causing environmental pollution problems (page 1, Abstract, Translation).
Regarding claim 1, Suh teaches the invention provides a high level of viability of the antimicrobial microorganisms in the preparation of a microbial agent for plant disease control comprising an antimicrobial microorganism effective to control fungal pathogens (page 3, paragraph 7, Translation). Suh teaches preferably the strain is of the genus Streptomyces of the fungal organism (page 3, paragraph 8, Translation). In addition, the antimicrobial microorganisms have at least one enzymatic activity of Trichoderma spp. Pseudomonas spp., Bacillus, Gliocladium spp., Burklioderia and Actinoplanes (page 3, paragraph 9, Translation).
Regarding claim 1, Yvin et al. teach the use of laminarin as a seed germination and plant growth accelerator (Abstract, col. 2, lines 8-9). Yvin et al. teach the laminarin is applied via the leaves or to the soil (col. 2, lines 10-12). Application to the leaves is during the flowering stage or vegetative stage.
Yvin et al. teach the composition also contains at least one additional substance selected from deficiency-correcting elements, fungicides, herbicides, and growth hormones (page 2, lines 22-25).
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Tsujimoto et al., Suh, and Yvin et al. to formulate a method to apply the components of the composition. Tsujimoto et al. teach a method of improving germination of seeds which comprises adding the seeds to a solid form superabsorbent polymer that has absorbed water. Tsujimoto et al. teach the superabsorbent polymer is applied during the time for germination following sowing of target seeds. Suh teaches that laminarin is added to provide a high level of viability of the antimicrobial organisms, a microbial consortium, that are used for plant disease control. Yvin et al. teach that laminarin is applied via leaves or to the soil as a plant growth accelerator. Application to leaves is during the vegetative stage. It would have been obvious to one of ordinary skill in the art to use the teachings of the prior art references to apply the components during the times that are taught by the prior art, with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007). One of ordinary skill in the art would also have been motivated to use a superabsorbent polymer, a microbial consortium and laminarin in a composition in a method to increase plant growth and germination because each component is used at various stages of plant growth to improve plant growth. In view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three conventional plant growth regulators/stimulators set forth prima facie obvious subject matter.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Claims 4, 6, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Tsujimoto et al. (EP 0686340) in view of Suh (KR 0183517 B1, Translation) and Yvin et al. (US 5,750,472) as applied to claim 1 above, and further in view of Forlivio et al. (WO 2016/081768). Forlivio et al. cited by Applicant on the IDS dated June 9, 2025.
Applicant’s Invention
Applicant claims a method comprising applying to a locus of a plant in the following sequence: a superabsorbent polymer at a sowing stage; a microbial consortium at a land preparation stage; and laminarin, Ascophyllum nodosum extract, ortho-silicic acid or combinations thereof at a flowering stage or vegetative stage. Applicant claims the method further comprises a herbicide and a biostimulant.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Tsujimoto et al., Suh, and Yvin et al. with respect to the 35 U.S.C. 103 rejection is hereby incorporated and are therefore applied in the instant rejection as discussed above.
Tsujimoto et al., Suh, and Yvin et al. do not specifically disclose the claimed herbicides, as claimed in claim 4 or the biostimulants, as claimed in claim 9. It is for this reason Forlivio et al. is added as a secondary reference.
Regarding claims 4 and 6, Forlivio et al. teach a method of stimulating or promoting plant growth includes applying to a crop plant a composition of ipfencarbazone in an amount sufficient to stimulate growth (Abstract). Forlivio et al. teach the method may complement a spectrum of weed control and may be combined with biostimulants/plant growth regulators in a starter kit (page 9, paragraph [0042]).
Regarding claim 9, Forlivio et al. teach the second plant growth stimulant include gibberellic acid, gibberellin mixtures (page 18, paragraph [0067]), DELSOL (comprising Natural occurring plant growth rhizobacteria), Headset (comprising seaweed based fertilizer, magnesium nitrate), and FOLTRON (comprising nitrogen…Folcisteine) (page 19, paragraph [0067]).
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Tsujimoto et al., Suh, Yvin et al., and Forlivio et al. and add a herbicide and additional biostimulants to the compositions used in the methods. Tsujimoto et al. teach a method of improving germination of seeds which comprises adding the seeds to a solid form superabsorbent polymer that has absorbed water. Tsujimoto et al. teach the superabsorbent polymer is applied during the time for germination following sowing of target seeds. Suh teaches that laminarin is added to provide a high level of viability of the antimicrobial organisms, a microbial consortium, that are used for plant disease control. Yvin et al. teach that laminarin is applied via leaves or to the soil as a plant growth accelerator. Each of the prior art references teach that other active ingredients can be added to the compositions, including herbicides and plant growth regulators. As such, one of ordinary skill in the art would have been motivated to add the herbicide ipfencarbazone that is known to stimulate and promote plant growth, as taught by Forlivio et al. Likewise, it would have been obvious to one of ordinary skill in the art to add the known biostimulants taught by Forlivio et al. to further increase or stimulate plant growth, with a reasonable expectation of success. In view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three conventional plant growth regulators/plant growth stimulators set forth prima facie obvious subject matter.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Response to Arguments
Applicant's arguments filed January 28, 2026 have been fully considered but they are not persuasive. Applicant argues the method is not mere aggregation of known steps; the method claim deliberately specifies not only what is applied, but when/how it is applied to exploit distinct plant physiological windows. Applicant argues Tsujimoto is silent on: (i) a pre-sowing land preparation application of a microbial consortium; (ii) a growth stage-specific foliar application of laminarin/A. nodosum extract/ortho-silicic acid (OSA); and the ordered sequence tying these steps together into one method across various crop stages. Applicant argues Suh teaches (1) laminarin as one of the group of polysaccharides and (2) inclusion/viability of antimicrobial organisms. However, Suh describes compositions and preparation methods that improve microbial viability and disease control, not a field program allocating when to apply which component across land preparation, sowing, and vegetative/flowering crop stages. Applicant argues that Yvin discloses laminarin as a seed germination and plant growth accelerator applied to leaves or soil. Yvin alone does not: integrate SAP at sowing; integrate a microbial consortium at land preparation; or impose any order of applying the presently claimed multiple components.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Tsujimoto et al. teach a method of improving germination of seeds which comprises adding the seeds to a solid form superabsorbent polymer that has absorbed water. Tsujimoto et al. teach the superabsorbent polymer is applied during the time for germination following sowing of target seeds. Suh teaches that laminarin is added to provide a high level of viability of the antimicrobial organisms, a microbial consortium, that are used for plant disease control. Yvin et al. teach that laminarin is applied via leaves or to the soil as a plant growth accelerator. Application to leaves is during the vegetative stage. It would have been obvious to one of ordinary skill in the art to use the teachings of the prior art references to apply the components during the times that are taught by the prior art, with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007). One of ordinary skill in the art would also have been motivated to use a superabsorbent polymer, a microbial consortium and laminarin in a composition in a method to increase plant growth and germination because each component is used at various stages of plant growth to improve plant growth. In view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three conventional plant growth regulators/stimulators set forth prima facie obvious subject matter. Applicant has not shown the criticality of the steps that are currently claimed.
Applicant argues that claim 1 is patentable over Tsujimoto in view of Suh and Yvin, because it appears that impermissible hindsight was used to reconstruct the method of claim 1. Applicant argues that the rejection utilizes hindsight to arrive at the presently claimed specific sequence of method steps. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). As indicated hereinabove, it would have been obvious to one of ordinary skill in the art to use the teachings of the prior art references to apply the components during the times that are taught by the prior art, with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007). One of ordinary skill in the art would also have been motivated to use a superabsorbent polymer, a microbial consortium and laminarin in a composition in a method to increase plant growth and germination because each component is used at various stages of plant growth to improve plant growth. In view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three conventional plant growth regulators/stimulators set forth prima facie obvious subject matter. Applicant has not shown the criticality of the steps that are currently claimed.
Applicant argues that claim 1 is patentable over Tsujimoto, Suh, and Yvin because unexpected results are obtained. In response to Applicant’s argument, evidence of nonobviousness must be commensurate in scope with that of the claimed subject matter. Applicant claims a method comprising applying to a locus of a plant in the following sequence: a superabsorbent polymer at a sowing stage; a microbial consortium at a land preparation stage; and laminarin, Ascophyllum nodosum extract, ortho-silicic acid or combinations thereof at a flowering stage or vegetative stage. The data in the original specification comprise the use of UPDT (Zeba®) at 5 Kg/acre, while sowing, a microbial consortium at 3 Kg/acre during land preparation or top dressing of fertilizers, and a combination of Orthosilicic acid (OSA) at 500 ML with various herbicides and fungicides during various stages. It cannot be determined if any superabsorbent polymer applied at a sowing stage, combined with any microbial consortium at a land preparation stage and ortho-silicic acid at any flowering or vegetative stage will provide the same purported unexpected results. It also cannot be determined if the components applied at any amount will provide the same purported unexpected results. Also, it cannot be determined if laminarin and Ascophyllum nodosum extract will provide the same purported results. In addition, there is no comparative data for the application of the components alone to determine if there are truly unexpected results. Applicant has not established nonobvious evidence that is commensurate in scope with that of the claimed subject matter.
Conclusion
No claims are allowed.
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 Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
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/ANDRIAE M HOLT/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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