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 .
Election/Restrictions
Applicants’ election with traverse of Group II, claims 10-13, in the reply filed on January 28, 2026 is acknowledged. The traversal is on the ground(s) that there is no serious search burden. This is not found persuasive because the growing media composition of claim 1 is not required for application to a plant or agricultural substrate of claim 10, the composition stands on its own.
The requirement is still deemed proper and is therefore made FINAL.
Applicants are reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Claim Rejections - 35 USC § 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 10-13 is/are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by Ye Jianjun (CN1907916A).
Jianjun teaches a method of enhancing a plant or agricultural substrate, the method comprising: applying to a plant or to an agricultural substrate a mixture of a growing media and a biosurfactant (page 2, paragraph 3, a fermentation culture medium for producing a peat wetting agent, which involves adding rhamnolipid to peat to improve its water retention and hydrophilicity) at a concentration ratio of the growing media to the biosurfactant of about 0.01 to about 12 oz/yd3 (pages 2-6, preparation of a biosurfactant from fermentation of microorganisms, wherein, the concentration of rhamnolipid was 20-30 gL, which was subsequently concentrated to a 10% solution, page 6, paragraph 1, 0.5 kg of this concentrate was then added to 500kg of peat, and it was proved that the surface tension could be reduced and the peat could be completely moistened). The examiner deems that the content in weight percentage of rhamnolipid in peat disclosed in Jianjun falls within the content range defined in the present application.
Jianjun further teaches wherein the enhancement is at least one enhancement selected from the group consisting of: surface tension, reduction, increasing a speed to wet, increasing water retention, and increasing a time to dry (page 2, paragraph 1, “method for cultivating a novel and reasonable process, the product can improve the hydrophilicity of peat, and the formulation of peat wetting agent fermentation medium”, page 2, paragraph 3, “the resulting mixture is a peat wetting agent”).
Jianjun further teaches wherein the growing media is at least one selected from the group consisting of: peat, peat-like materials, sand, perlite, and vermiculite (page 1, paragraph 4, “The application of peat in agricultural production is mainly to improve soil”).
Jianjun further teaches wherein the biosurfactant is produced by mechanical means biological processes without any chemical reaction that alters a molecule of the biosurfactant and is at least one glycolipid selected from the group consisting of: rhamnolipid, sophorolipid, and mannosylerythritol lipid (page 2, paragraph 4, “ferment bacteria such as Pseudomonas aeruginosa and Bacillus subtillis, and the resulting biological surfactant rhamnolipid is used to improve peat.”). It is well known in the art that rhamnolipids act as biosurfactants.
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 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 non-obviousness.
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. Applicants are 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 10-13 are rejected under 35 U.S.C. 103 as being unpatentable over Ju et al. (U.S. 2017/0265468 A1) in view of Ye Jianjun (CN1907916A).
Ju et al. teach a method of enhancing a plant or agricultural substrate, the method comprising: applying to a plant or to an agricultural substrate a mixture of a growing media and a biosurfactant (Abstract, “A biopesticide composition includes a solvent and a plurality of rhamnolipid complexes”, paragraph 0018, “a coated article comprising an article selected from a seed and a plant, said article having a rhamnolipid-based coating thereon, said coating including a plurality of rhamnolipid complexes”, paragraph 0029, “The rhamnolipid complexes may be provided as part of a coating composition or a pellet composition. A coating composition or pellet composition including rhamnolipid complexes may also include one or more of solvents, additives, fillers, and combinations thereof”, paragraph 41, “rhamnolipid complexes are used with a seed or plant, it may be desirable to utilize cations having fertilizing properties”, paragraph 0044, “Rhamnolipids are commonly produced by the fermentation of Pseudomonas species. They act as biosurfactants”, paragraph 0070, “Exemplary fillers include… sand… vermiculite, perlite”, paragraph 0071, “In certain embodiments, one or more fillers may be premixed with the coating composition prior to the coating process”).
Ju et al. further teach wherein the enhancement is at least one enhancement selected from the group consisting of: surface tension, reduction, increasing a speed to wet, increasing water retention, and increasing a time to dry (paragraph 0044, “Rhamnolipids are commonly produced by the fermentation of Pseudomonas species. They act as biosurfactants” which are well known in the art that surfactants decrease surface tension.).
Ju et al. further teach wherein the growing media is at least one selected from the group consisting of: peat, peat-like materials, sand, perlite, and vermiculite (paragraph 70, “Exemplary fillers include… sand… vermiculite, perlite”).
Ju et al. further teach wherein the biosurfactant is produced by mechanical means biological processes without any chemical reaction that alters a molecule of the biosurfactant and is at least one glycolipid selected from the group consisting of: rhamnolipid, sophorolipid, and mannosylerythritol lipid (paragraph 0044, “Rhamnolipds (RLs) are particular glycolipid produced by microorganisms. Rhamnolipids are commonly produced by the fermentation of Pseudomonas species. The act as biosurfactants.”).
Ju et al. do not teach the biosurfactant at a concentration from about 0.01 to about 12 oz/yd3 of growing media.
Jianjun teaches a method of enhancing a plant or agricultural substrate, the method comprising: applying to a plant or to an agricultural substrate a mixture of a growing media and a biosurfactant (page 2, paragraph 3, a fermentation culture medium for producing a peat wetting agent, which involves adding rhamnolipid to peat to improve its water retention and hydrophilicity) at a concentration ratio of the growing media to the biosurfactant of about 0.01 to about 12 oz/yd3 (pages 2-6, preparation of a biosurfactant from fermentation of microorganisms, wherein, the concentration of rhamnolipid was 20-30 gL, which was subsequently concentrated to a 10% solution, page 6, paragraph 1, 0.5 kg of this concentrate was then added to 500kg of peat, and it was proved that the surface tension could be reduced and the peat could be completely moistened). The examiner deems that the content in weight percentage of rhamnolipid in peat disclosed in Jianjun falls within the content range defined in the present application.
It would have been obvious to one having ordinary skill in the art at the time of invention to utilize the concentration of biosurfactant (glycolipid, rhamnolipid) 20-30g/L, which was subsequently concentrated to a 10% solution, 0.5 kg of this concentrate was then added to 500 kg of peat (it was proved that the surface tension could be reduced and the peat could be completely moistened) as taught by Jianjun as experimentally routine in order to utilize the desired concentration of biosurfactant per cubic yard to optimize media wettability, plant growth, and/or biocontrol of plant diseases and pests.
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 10-13 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of U.S. Patent No. 11,582,924. Although the claims at issue are not identical, they are not patentably distinct from each other because they are coextensive in scope.
The claim set of the instant application is to a method of enhancing a plant or agricultural substrate, the method comprising: applying to a plant or to an agricultural substrate a mixture of a growing media and a biosurfactant at a concentration ratio of the growing media to the biosurfactant of about 0.1 to about 12 oz/yd3; wherein the enhancement is at least one enhancement selected from the group consisting of: surface tension reduction, increasing a speed to wet, increasing water retention, and increasing a time to dry; wherein the growing media is at least one selected from the group consisting of: peat, peat-like materials, sand, perlite, and vermiculite; wherein the biosurfactant is produced by mechanical and biological processes without any chemical reaction that alters a molecule of the biosurfactant and is at least one glycolipid selected from the group consisting of: rhamnolipid, sophorolipid, and mannosylerythritol lipid.
The claim set of U.S. Patent No. 11,582,924 is to a growing media composition comprising: growing media; and a biosurfactant mixed or dispersed in the growing media at a concentration from about 0.1 to about 12 oz/yd3 of growing media; wherein said growing media composition, when applied to a plant or agricultural substrate, is effective for improving initial water uptake or wetting, rewetting, and/or water retention over time of said plant or agricultural substrate; wherein the biosurfactant is at least one biosurfactant selected from the group consisting of: glycolipids, lipopeptides, phospholipids, fatty acids, and polymeric surfactants; wherein the growing media is at least one selected from the group consisting of: peat, peat-like materials, sand, perlite, and vermiculite; wherein the biosurfactant is a glycolipid, wherein the biosurfactant is a glycolipid selected from the group consisting of: rhamnolipid, sophorolipid, and mannosylerythritol lipid; wherein the biosurfactant is rhamnolipid; wherein the biosurfactant is produced by mechanical and biological processes without any chemical reaction that alters a molecule of the biosurfactant; wherein the growing media composition is a plant or agricultural substrate.
Future Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KENT L BELL whose telephone number is (571)272-0973. The examiner can normally be reached M- Th, 6 - 4:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bratislav Stankovic can be reached at 571-270-0305. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KENT L. BELL/
Primary Examiner
Art Unit 1661
/KENT L BELL/Primary Examiner, Art Unit 1661
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