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 .
Information Disclosure Statement
The IDS’s filed on 7/9/2026 and 5/29/2026 have been considered. See the attached PTO 1449 form.
Status of Claims
Receipt of Remarks/Amendments/Declaration filed on 7/9/2026 is acknowledged. Claims 1, 8-9 and 33 are currently pending and under examination.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Withdrawn Rejections/Objections
The 112(b) rejections made in the previous office action have been withdrawn due to claim amendments.
New/Maintained Claim Objection(s) / Rejection(s)
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.
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, 8-9 and 33 are rejected under 35 U.S.C. 103 as being unpatentable over Liles et al. (WO2016054222) in view of Norziah et al. (Food Hydrocolloids, 2001, 15(4-6), 491-498), Nazari (Rhizosphere, 2021, 18, 100344, pg. 1-5) as evidenced by Goksen et al. (Int. J. of Biol. Macromolecules, 2023, 123146, pg. 1-17), Qi et al. (PLoS ONE 17(1), e0262691), Flis et al. (American Society Agronomy, Crops & Soils magazine, July 2019) and Shepard et al. (US2673157).
Liles throughout the reference teaches use of pectin or pectin related polysaccharides to enhance efficacy of plant growth promoting rhizobacteria (PGPR) strains for promoting growth and health in plants and animals. Liles teaches administering/applying PGPR and pectin polysaccharides to roots of plants and to seeds (as a coating for seeds) or to soil. Liles teaches plants may be treated with PGPR and pectin concurrently or in either order (i.e., the PGPR may be administered before, concurrently with or after the pectin is administered). Liles teaches that pectin can be administered before or after PGPR is administered and thus does not require pectin and PGPR to be in the same composition or concurrent administration. Liles teaches PGPR exert a beneficial effect on the plant, growth promotion, protect against plant disease (which reads on nutrient, ameliorating agent, or a plant protectant). Thus, the PGPR of Liles reads on further comprising applying a plant product to roots. Liles discloses pectins may be high ester or low ester pectins having <50% esterification (low methoxyl pectin). Liles teaches the pectin being a polysaccharide having D-galacturonic acid units and can further comprise L-rhamnose. (see e.g. abstract; background; claims; para 0027-0032; 0049-0050; 0058; 0004-0012; 0048-0054; 0061-0062; 0064; 0071; 0114; entire document).
The teachings of Liles have been set forth above.
While Liles teaches providing and applying low methoxyl pectin to plant roots and seeds, Liles does not teach providing low methoxyl pectin in a blend with sugar and calcium/calcium source, wherein the blend is dry, and solubilizing the blend in water to form a solution, which is applied to plant root/seed. As such, Liles also does not teach the amounts/concentration of pectin, sugar and calcium/calcium source in the blend. However, these deficiencies are cured by Norziah et al., Nazari as evidenced by Goksen et al., Qi et al., Flis et al. and Shepard et al.
Flis teaches calcium being an important nutrient for all crops wherein calcium provides cellular growth, plant reproduction and protection against microbial pathogen. Calcium provides stability and rigidity of plant cell walls and is essential for root development and function. Flis teaches calcium applied to soil/root for root uptake. (see e.g. Abstract; Intro Paragraphs; Sources of Calcium; Crop health and calcium; Conclusion).
Qi teaches that it was known to add glucose to roots/soil in amounts of 0.45 g/kg of soil, and 2.25 g/kg of soil diluted in water to soil containing plants and that improved soil health and root growth/biomass was achieved (See e.g. abstract; Experimental design section inclusive; Root surface, volume, total length and biomass section; Root morphology and biomass section).
Nazari as evidenced by Goksen teaches that natural root exudates comprise all of the claimed components pectin, sugars, calcium which are in viscous liquid/gel form, e.g. solubilized in water which is the same way the instantly claimed blend is formed into a gel/viscous liquid, by solubilization in water. Nazari teaches root and seed mucilage polysaccharides are an energy source for microorganisms, absorb water, exchange cations, and adhere to solid surfaces in the rhizosphere. Mucilage minerals include monovalent and divalent cations capable of being exchanged for other cations in the rhizosphere. (see Nazari: Abstract; pg. 2-3, paragraph bridging two pages begins with Regarding the chemical composition…; pg. 2-3, right col. Section 3 polysaccharides, sections 3.1-3.4 inclusive; pg. 3, right col. Section 5 inclusive; Table 1; See Goksen: Introduction section 1st paragraph; pg. 2-3, paragraph bridging two pages begins with Regarding the chemical composition…).
Norziah teaches that it is known to form gels with pectin, sucrose, and calcium and that it is known to vary the amounts of the pectin, sugar and calcium in order to form gels with desired/different viscosities, etc. (see entire document; abstract; Conclusion section;).
Shepard teaches blends which consist of and/or comprise pectin, specifically low methoxyl-pectin, sugar and calcium in the form of ions which are mixed with water (which form solution) and which gel and wherein these blends, e.g. the pectin, calcium, and sugar can be in a solid form/dry form. Shepard teaches low methoxyl pectin are readily soluble in water. (claims; Example I; see also col. 1, line 44-53; Col. 4, ln. 38-Col. 5, ln. 22, inclusive). Shepard teaches that it was known to use calcium ions to form gels with pectin, specifically low methoxyl-pectin and sugar (Col. 2, ln. 28-Col. 3, ln. 35; claims; Example I; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive). Shepard teaches wherein the sugar is preferably sucrose which means that the sugar comprises glucose, and is a blend of glucose and fructose. (Col. 4, ln. 31-34; Examples; Claims).
It would have been prima facie obvious to one of ordinary skill in the art to have combined the teachings of Liles, Norziah et al., Nazari as evidenced by Goksen et al., Qi et al., Flis et al. and Shepard et al., and further include sugar and calcium/calcium source along with pectin taught by Liles for application to roots and seeds for plant growth. Liles teaches pectin or pectin related polysaccharides to enhance efficacy of plant growth promoting rhizobacteria (PGPR) strains for promoting growth and health in plants and animals. Liles teaches administering pectin polysaccharides to roots of plants and to seeds (as a coating for seeds) or to soil. As discussed supra, Flis teaches calcium being an important nutrient for all crops wherein calcium provides cellular growth, plant reproduction and protection against microbial pathogen. Calcium provides stability and rigidity of plant cell walls and is essential for root development and function. Flis teaches calcium applied to soil/root for root uptake. Qi teaches that it was known to add glucose to roots/soil in amounts of 0.45 g/kg of soil, and 2.25 g/kg of soil diluted in water to soil containing plants and that improved soil health and root growth/biomass was achieved. Liles, Flis and Qi all are directed to root and plant growth and calcium, sugar and pectin are all taught to be useful in promoting root and plant growth. Thus, it would have been obvious to one skilled in the art to further include calcium and sugar in combination with the pectin taught by Liles and apply it to plant roots/seeds for plant growth.
It would have been prima facie obvious to one of ordinary skill in the art to have combined the teachings of Liles, Norziah et al., Nazari as evidenced by Goksen et al., Qi et al., Flis et al. and Shepard et al., and provide and solubilize a dry blend of pectin, sugar and calcium in water to form a solution and apply the solution to plant roots/seeds. As discussed supra, Liles teaches that it was known to use synthetic gels made of/comprising pectin, specifically low ester pectin which include the claimed low methoxyl pectin, which is a polysaccharide having a backbone of D-galacturonic acid, to treat plant roots to improve plant growth and health. Nazari as evidenced by Goksen teaches that natural root exudates comprise all of the claimed components pectin, sugars, calcium which are in viscous liquid/gel form, e.g. solubilized in water which is the same way the instantly claimed blend is formed into a gel/viscous liquid, by solubilization in water. Norziah teaches that it is known to form gels with pectin, sucrose, and calcium and Shepard teaches blends which consist of pectin, specifically low methoxyl-pectin, sugar and calcium in the form of ions which are mixed with water (which form solution) and which gel and wherein these blends, e.g. the pectin and sugar can be in a solid form/dry form. Shepard teaches low methoxyl pectin are readily soluble in water. Shepard teaches that it was known to use calcium ions to form gels with pectin, specifically low methoxyl-pectin and sugar. Thus, one skilled in the art would have found it obvious to solubilize a dry blend of pectin, sugar and calcium source in water to form a solution and apply the solution to plant roots/seeds which would gel because it was known in the art to apply root treatments comprising pectin based gels to plant roots to improve growth and all of the claimed components of the gel were already known in the art to be useful for promoting plant growth, etc. when applied to roots, and that natural root exudates comprise all of the claimed components pectin, sugars, calcium which are in viscous liquid/gel form.
Further one of ordinary skill in the art would want to form an optimized blend of the natural components of root mucilage as taught by Nazari (pectin, sugars, and calcium) which can be solubilized in water in order to form synthetic root mucilage(s) for use in/on plant roots and seeds because natural root mucilage improves soil aggregation, reduces friction against the growing root, improves rhizosphere water content and root water uptake under drought and is a carbon source for soil micronutrients (see Nazari introduction paragraph), and the claimed synthetic blends of the same major ingredients as claimed as taught by the combined references which are known to form gels and which the components, calcium, sugar, etc. can be adjusted to control the viscosity of the gel when taken in view of Nazari and Gosken would be expected to provide the same benefits as the natural root exudates because these are components found in natural root exudates and because, as discussed above, each of the claimed components are known in the art to improve the growth of plants, etc. when applied to the roots.
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have formed the claimed pectin, sugar, and calcium blend with the claimed percentages of pectin and sugar because it is known to optimize the amounts of pectin, sugar, and calcium in these pectin blends for forming gels in order to control/develop gels having the desired viscosity, etc. as is discussed above with respect to the teachings of Shepard and Norziah. Thus, it would be obvious to optimize the blend as taught by Shepard and Norziah to contain the claimed amounts of pectin, sugar and calcium in order to afford pectin blends which achieve the desired gelling consistency when mixed with liquids/water because it was known to optimize the amounts of pectin, sugar, etc. in pectin blends for forming gels in order to achieve gels having the desired structure/consistency/viscosity and because the courts have previously determine, “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. ‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding the claimed amounts of pectin, it would be obvious to optimize the amounts of pectin in the blend in order to, when solubilized in water, form the most effective gel/mucilage which adheres to the roots to provide the known benefits of natural root mucilage. Thus, it would be obvious to optimize the pectin in the blend in order to form the most effective blend for forming root mucilage compositions which adhere to the roots and improve root growth/biomass etc. when solubilized in water.
Regarding the claimed amounts of calcium, it would be obvious to optimize the amounts of calcium in the claimed blend as Flis teaches calcium being an important nutrient for all crops wherein calcium provides cellular growth, plant reproduction and protection against microbial pathogen. Calcium provides stability and rigidity of plant cell walls and is essential for root development and function. As such it would be obvious to optimize the amount of calcium in the claimed blend in order to form most effective blend for forming root mucilage compositions which adhere to the roots and improve root and plant growth/biomass etc. when solubilized in water.
Regarding the claimed amounts of sugar(s) it would be obvious to optimize the amounts of sugars in the claimed blend in order to provide the necessary levels of sugar for feeding the microbes in the soil and improving the soil health and root growth of the plants where the sugar is applied to the roots/soil and further it was known to from nature that natural root mucilage contains the claimed types of sugars as these are hydrolyzed from the polysaccharides as food for the soil microbes and it would have been obvious to add glucose and/or a blend of glucose/fructose (e.g. sucrose) to the claimed blend formulation as taught by Shepard and the combined references in order to provide instant sugar to the microbes in the soil because it was known that applying glucose and other sugars to the soil around the roots increases root growth/biomass and improves the soil/feeds the microbes in the soil to improve soil health as is taught by Qi, etc. as discussed above. Thus, it would be obvious to optimize the amount of sugar/sugars in the claimed blend in order to form most effective blend for forming root mucilage compositions which adhere to the roots and improve root growth/biomass etc. when solubilized in water and improve soil health and microbe health in the soil around the roots, especially since each of the claimed components was already known in the art to be present in root mucilage as it exists in nature, e.g. as the bacteria are hydrolyzing the polysaccharides, the natural root exudate contains some level of the claimed sugars, with the claimed polysaccharides and the claimed calcium and as such using the natural root exudates as a starting point it would be obvious for one of ordinary skill in the art to optimize the amounts of the components in Shepard and the combined references order to form the most effective blend/root mucilage composition for treating plants.
With respect to the instantly claimed limitation wherein the solution gels as a protectant surrounding the root, provides a substrate for creating a microaerobic environment for bacterial enhancement and growth, and provides a nutrient source for the plant, all of which thereby stimulate growth of the plant roots and enhancing plant biomass, as discussed supra, Shepard teaches blends which consist of and/or comprise pectin, specifically low methoxyl-pectin, sugar and calcium which are mixed with water (which form solution) and which gel. Nazari as evidenced by Goksen teaches that natural root exudates comprise all of the claimed components pectin, sugars, calcium which are in viscous liquid/gel form, e.g. solubilized in water which is the same way the instantly claimed blend is formed into a gel/viscous liquid, by solubilization in water. Nazari also teaches natural root mucilage improves soil aggregation, reduces friction against the growing root, improves rhizosphere water content and root water uptake under drought and is a carbon source for soil micronutrients (see Nazari introduction paragraph). Further, the combined references above render obvious applying a blend solution to plant roots and therefore, the properties/benefits recited in the phrase above would necessarily occur because the combined prior art references render obvious the claimed blend and application of the blend solution to plant roots. ““[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art' s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).” MPEP § 2112, I.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments/Declaration
Applicant in the declaration by Christopher Kniffen argued that applicant have provided data that illustrate the criticality of the claimed amounts. It was argued that merely doubling the concentration of each component does not automatically garner a similar doubling of change in crop yield and the data demonstrates that the claimed composition produces results that are neither proportional to the concentration of the dry blend nor predictable from the prior art. Applicant argued that it is the particular combination and the particular amounts of each components recited in the claims that have resulted in improved crop yields and these results are unexpected. Applicant also argued that the particular combination and the particular amounts of each component recited in the claims result in further improved crop yield when combined with additional plant growth promoting treatments.
In response, the examiner argues that in Table 3 of declaration, the corn yield appears to increase as the concentrations are increased from example 1 (lowest) to example 3 (highest). Similarly, in Table 5 of declaration, example 1 (lowest concentration of pectin, calcium and sugar) appears to show lowest % change in yield from control, and example 3 (highest concentration of pectin, calcium and sugar) appears to show the highest % change in yield from control. Thus, the data presented in the declaration appears to show a linear and predictable effect on crop yield with lower amounts providing lowest crop yield and highest amounts providing highest crop yield. Further, in order to show that the claimed amounts are critical and provide an unexpected effect, the results need to be of a statistical and practical difference between the instant claims and the prior art. MPEP 716.02. In table 3 of the declaration, example 1 has a crop yield of 164.74, example 2 (claimed amounts) have a crop yield of 167.81 and example 3 has a crop yield of 169.80. These differences in crop yield appear to be very small and applicant have not shown how these minor differences are of statistical and practical significance. Similarly, with the grain analysis, the differences between examples 1 to 3 also appear to be very small and applicant in this case have also not shown how these minor differences are of statistical and practical significance. Regarding the argument that the particular combination and the particular amounts of each component recited in the claims result in further improved crop yield when combined with additional plant growth promoting treatments, firstly, the examiner argues that independent claims 1 and 33 do not recite and require additional plant growth promoting treatments. Further, in table 6, the herbicides utilized for treatment composition comprising the claimed amounts of pectin, calcium source and sugar, are different from the herbicides utilized in the other two treatment compositions. Thus, it is unclear if the crop yield increase is due to the claimed amounts of the claimed ingredients or whether it is due to the different herbicides used in the composition. Additionally, regarding the combination of the claimed ingredients, in the experimental examples and in the comparative examples, applicant utilize all three claimed components (LM pectin, calcium source and sugar) and there is no comparative examples that does not utilize all three of the claimed components. Thus, it cannot be established that the claimed combination provides synergy and/or unexpected effect over the prior art. Therefore, applicant’s arguments regarding the claimed combination and claimed amounts providing unexpected results is not found persuasive at this time.
Applicant argued that in Liles, pectin is included in the composition to enhance the efficacy of the PGPR bacteria as biological control and there’s no teaching in Liles that the compositions and methods would successful at improving plant growth and health in the absence of PGPR. It was argued that no effective amounts of pectin are reported in Liles and no teaching or suggestion in Liles to choose low-methoxyl pectin over the exemplified high methoxyl pectin in Liles.
In response, as discusses supra and acknowledged by applicant, Liles teaches use of pectin to enhance efficacy of PGPR strains for promoting growth and health in plants and animals. Liles teaches that by supplementing pectin on plants seeds that are inoculated with Bacillus spores, or by supplementing pectin available for Bacillus PGPR strain post seed germination will result in an enhancement of the Bacillus strain colonization of the plant rhizosphere, better persistence of Bacillus within the plant rhizosphere, better plant growth performance in response to PGPR + pectin administration and better biological control of disease or pests (para 0027). Liles also teaches plants may be treated with PGPR and pectin concurrently or in either order (i.e., the PGPR may be administered before, concurrently with or after the pectin is administered) (para 0062). Thus, Liles clearly suggests pectin playing an important role for plant growth and disease control in the plant. Also, Liles teaches that pectin can be administered before or after PGPR is administered and thus does not require pectin and PGPR to be in the same composition or concurrent administration. The instant claims recite the method “comprising” and the comprising language does not exclude the administration of PGPR separately from the instantly claimed blend which consists of pectin, sugar and calcium. Further, as discussed supra, the instant claims recite the method further comprising applying a product and the PGPR taught by Liles reads on that product recited in the instant claims. Regarding the low methoxyl pectin, as discussed supra, Liles discloses pectins may be high ester or low ester pectins having <50% esterification (low methoxyl pectin) (e.g. para 0049-0050). “Disclosed examples and preferred embodiments do not constitute a teaching away from the broader disclosure or non-preferred embodiment.” In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). MPEP 2123. Therefore, even if Liles exemplifies high methoxyl pectin, Liles teaches pectins may be high ester or low ester pectins having <50% esterification (low methoxyl pectin). Regarding the claimed amounts of pectin, it would have been obvious to optimize the amounts of pectin in the blend in order to, when solubilized in water, form the most effective gel/mucilage which adheres to the roots to provide the known benefits of natural root mucilage. Thus, it would be obvious to optimize the pectin in the blend in order to form the most effective blend for forming root mucilage compositions which adhere to the roots and improve root growth/biomass etc. when solubilized in water. Further, as mentioned previously, Liles clearly suggests pectin playing an important role for plant growth and disease control in the plant and it would have been obvious to one skilled in the art to determine an optimal amount which provides plant growth and disease control in the plant.
Applicant argued Qi is focused on the addition of glucose to enhance nitrogen metabolism in soil and the glucose solution is added to the soil. It was argued that office does not point to any teachings or suggestion in Qi that applying the glucose solution to the roots or seed would yield improvements in plant growth and crop biomass.
In response, the examiner argues that the instant claims do not require that glucose (sugar) is applied directly to roots. Glucose solution mixed in the soil would necessarily come into contact with the roots/seeds of the plant which grow in the soil. Also, as discussed supra, Qi teaches that adding glucose diluted in water to soil containing plant improved soil health and root growth/biomass was achieved. Further, Nazari as evidenced by Goksen teaches that natural root exudates/seed mucilage comprise all of the claimed components pectin, sugars, calcium which are in viscous liquid/gel form. Thus, it would have been obvious to one skilled in the art to apply the glucose (sugar) component to the root/seed because the natural root exudates/seed mucilage require and/or comprise sugar component, and as such, one skilled in the art would expect plant growth increase because the natural root exudates/seed mucilage require a sugar component.
Applicant argued that Flis is focused specifically on calcium’s role in promoting plant health and nutrition, and similarly to Qi, Flis is concerned with amounts of improving the availability of calcium in the soil over time through application of calcium sources which are dissolved in water applied to the soil rather than plant roots or seeds. It was argued that Flis fails to teach any amounts of calcium and no teaching or suggestion in Flis that applying the calcium sources to the roots or seed would yield improvements in plant growth and crop biomass.
In response, the examiner again argues that the instant claims do not require that calcium source is applied directly to roots. Calcium source dissolved in water and mixed in the soil would necessarily come into contact with the roots/seeds of the plant which grow in the soil. Also, as acknowledged by applicant and discussed supra, Flis teaches calcium providing improved plant health and nutrition (which would be expected to provide improved plant growth and crop biomass). Further, Nazari as evidenced by Goksen teaches that natural root exudates/seed mucilage comprise all of the claimed components pectin, sugars, calcium which are in viscous liquid/gel form. Thus, it would have been obvious to one skilled in the art to apply the calcium source to the root/seed because the natural root exudates/seed mucilage require and/or comprise calcium, and as such, one skilled in the art would expect plant growth increase because the natural root exudates/seed mucilage require a calcium component. Regarding the claimed amounts of calcium, it would be obvious to optimize the amounts of calcium in the claimed blend as Flis teaches calcium being an important nutrient for all crops wherein calcium provides cellular growth, plant reproduction and protection against microbial pathogen. Calcium provides stability and rigidity of plant cell walls and is essential for root development and function. As such it would be obvious to optimize the amount of calcium in the claimed blend in order to form most effective blend for forming root mucilage compositions which adhere to the roots and improve root and plant growth/biomass etc. when solubilized in water.
Applicant argued that many of the components of the plant mucilage or exudate are not present in the instantly claimed dry blend composition. Applicant argued that the examiner does not point any teaching or suggestion in Nazari and Goksen that the particular combination of LM-pectin, a calcium source and sugar contributes to improvement of plant growth and that one skilled in the art would selectively combine the LM-pectin, sugar and a calcium source from the various components reported in Nazari’s and Goksen’s mucilage.
In response, firstly the examiner argues that the instant claims recite “blend consisting of.. a calcium source” and the calcium source can be anything that has calcium in it. Thus, even if the plant mucilage/exudate disclosed in Nazari as evidenced by Goksen includes other ingredients besides the ingredient of the claimed blend, it would still read on the claim because the claims recite “a calcium source” which can be anything that has calcium in it. Further, the instant claims recite the method “comprising” and solubilizing the dry blend in water to form a solution. Therefore, the instant claims do not exclude additional components from the solution and the solution can have components other than the blend. Further, as discussed supra, Liles teaches LM-pectin application to plant roots or seeds provides better plant growth performance, Flis teaches calcium being an important nutrient for all crops wherein calcium provides cellular growth, plant reproduction and protection against microbial pathogen, and is essential for root development and function. Qi teaches glucose improved soil health and root growth/biomass was achieved. Flis teaches calcium source dissolved in water for application and Qi also teaches glucose dissolved in water for application. Further, as discussed supra, Nazari as evidenced by Goksen teaches that natural root exudates comprise all of the claimed components pectin, sugars, calcium which are in viscous liquid/gel form, e.g. solubilized in water which is the same way the instantly claimed blend is formed into a gel/viscous liquid, by solubilization in water. Also, Norziah and Shepard teach it is known that pectin, sugar and calcium solution form a gel. As such, one skilled in the art would have found it obvious to dissolve pectin, sugar and calcium source in water to form solution and apply to plant root/seed as it would form into gel because Nazari as evidenced by Goksen teaches that natural root exudates comprise all of the claimed components pectin, sugars, calcium which are in viscous liquid/gel form.
Applicant argued that Norziah and Shephard are non-analogous art because they are not directed for use in agriculture. It was argued that Norziah reports effect of carrying concentration of pectin, sucrose and calcium on viscoelastic properties of pectin dispersions at pH 3. The particular pH recited in Norziah is destructive to most plant tissue.
In response to applicant's argument that Norziah is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, the examiner reiterates that Liles teaches LM-pectin application to plant roots or seeds provides better plant growth performance, Flis teaches calcium being an important nutrient for all crops wherein calcium provides cellular growth, plant reproduction and protection against microbial pathogen, and is essential for root development and function. Qi teaches glucose improved soil health and root growth/biomass was achieved. Flis teaches calcium source dissolved in water for application and Qi also teaches glucose dissolved in water for application. Further, as discussed supra, Nazari as evidenced by Goksen teaches that natural root exudates comprise all of the claimed components pectin, sugars, calcium which are in viscous liquid/gel form, e.g. solubilized in water which is the same way the instantly claimed blend is formed into a gel/viscous liquid, by solubilization in water. Norziah and Shephard are utilized because both Norziah and Shepard teach it is known that pectin, sugar and calcium solution form a gel and as such, one skilled in the art would have found it obvious to dissolve pectin, sugar and calcium source in water to form solution and apply to plant root/seed as it would form into gel because Nazari as evidenced by Goksen teaches that natural root exudates comprise all of the claimed components pectin, sugars, calcium which are in viscous liquid/gel form. Further, as mentioned previously, the instant claims do not exclude addition of a pH adjusting agent in the solution and one skilled in the art would find it obvious to adjust the pH (e.g. by adding a pH adjusting agent in the solution or by adding a calcium source such as lime which raises the pH as disclosed in Flis (see Source and rate section)) to be suitable for a pH that is needed for the particular type of plant.
Applicant argued that instantly claimed dry blend can be solubilized in water without any additional heating or precautions and Shephard reports that when the ingredients are to be incorporated without heat, it is essential that pectin be dispersed in the liquid medium before it makes effective contact with calcium ions or no gel will be formed or gel formed will be gritty or lumpy texture.
In response, the examiner argues that the instant claims do not exclude incorporation of the claimed blend ingredients in water with a hot process (heating). Shephard teaches both hot process and cold process are known to form solution which would gel. Thus, applicant’s argument are not found persuasive as heating is not excluded from the instant claims.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 ALI SAEED whose telephone number is (571)272-2371. The examiner can normally be reached M-F 8-5 EST.
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/ALI S SAEED/Examiner, Art Unit 1616
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