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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 4/1/2026 has been entered.
Status of Claims
Receipt of Remarks/Amendments filed on 4/1/2026 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Rejection(s) not reiterated from the previous Office Action are hereby withdrawn.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Withdrawn Rejections/Objections
The new matter rejection made in the previous office action has been withdrawn due to claim amendments.
The 112(b) rejections made in the previous office action have been withdrawn due to claim amendments.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 § 112
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 1 and 8-9 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.
Claim 1 recites “wherein the pectin and calcium source solution gels as a protectant”. There is insufficient antecedent basis for this limitation in the claim. The claim previous to this limitation recites solubilizing the blend in water to form a solution and that the blend consists of low-methoxyl pectin, sugar and a calcium source. The recitation “wherein the pectin and calcium source solution gels” makes it unclear whether it is referring back to the solution which includes pectin, sugar and a calcium source or whether it is a different solution which includes only pectin and calcium source. If the recitation above is directed to the solution which includes pectin, sugar and calcium source, the examiner suggests amending the claim to either recite “wherein the solution gels as a protectant” or “wherein the pectin and calcium source of the solution gels as a protectant”.
Claims 8-9 are included in the rejection as they depend on a rejected base claim and do not clarify the issues discussed above.
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 soil 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 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 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 as instantly claimed (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 soil 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 solubilize the 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 the blend of pectin, sugar and calcium 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, specifically glucose and blends of glucose and fructose (i.e. sucrose), 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/Remarks
Applicant argued that Liles never teaches that pectin provides any benefit to the plant itself. Liles relies on pectin solely as a food source for PGPR. The closed language of instant claims exclude PGPR and there is not explicit benefit in Liles to provide pectin to plant without the beneficial bacteria.
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.
Applicant argued Nazari and Goksen teach naturally occurring mucilage but no method of applying a composition to a plant root. Qi teaches application of glucose to roots/soil and Flis teaches calcium is an important nutrient for all crops, however, there is no teaching as to how to combine the teachings of Qi and Flis with Liles. Applicant also argued that Shepard teaches that it was known to use calcium ions to form gels with pectin. However, Liles does not teach the formation of a gel and thus, the combination of Liles and Shepard is improper. It is argued by the applicant that there is no teaching in any of Norziah, Nazari, Goksen, Qi, Flis and Shepard that would have led one skilled in the art to have obtained a composition comprising only pectin, sugar and calcium source and using that composition in a method wherein the solution forms a gel upon application.
In response, 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 solubilize the 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 the blend of pectin, sugar and calcium 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 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.
Applicant argued the office has failed to provide a reasonable expectation of PGPR enzyme, necessary to provide a food source to the bacteria, will function equally as well on pectin in solution and pectin in a gel form.
In response, 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. 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. Thus, one skilled in the art would have had a reasonable expectation of success in that pectin in gel form would provide food source to the bacteria because the prior art teaches that natural root exudates comprise all of the claimed components pectin, sugars, calcium which are in viscous liquid/gel form, and Nazari teaches root and seed mucilage polysaccharides are an energy source for microorganisms.
Conclusion
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/ALI S SAEED/Examiner, Art Unit 1616
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