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 filed on 10/21/2025 has been considered. See the attached PTO 1449 form.
Status of Claims
Receipt of Remarks/Amendments filed on 11/12/2025 and 12/8/2025 is acknowledged. Claims 1-2, 4, 6, 8-9 and 24-33 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Rejection(s) not reiterated from the previous Office Action are hereby withdrawn.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.
New Claim Objection(s) / Rejection(s) necessitated by claim amendments
New Matter
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 4 and 6 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 4 and 6 recite the calcium is present in the blend in an amount of about 4 wt%. While the instant specification disclose milk powder/dry milk in an amount of about 4 wt%, the specification do not provide support for wherein the calcium is present in the blend in an amount of about 4 wt%. Therefore, the recitation in claim 4 and 6 wherein the calcium is present in the blend in an amount of about 4 wt% represents new matter.
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, 2, 4, 6, 8-9, 24-31 and 32 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 “calcium source as a catalyst” and “calcium catalyst”. While the instant specification disclose that a “catalyst” may be necessary to commence or enhance formation of the structure-related gelling of the polysaccharide (para 0051-0052), the specification do not provide a clear and explicit definition of what a catalyst is because “may be” is optional language and as such this definition is not required by applicant’s specification. This renders the claim indefinite because it is unclear what exactly constitutes a catalyst and/or what is the exact function of a blend in the catalyst.
Claim 2 recites “milk powder or milk liquid as a calcium source is present in the blend in an amount of about 4 wt%”. Claim 2 in the previous limitation also recites “a blend consisting of a low-methoxyl pectin that is a polysaccharide having a backbone of repeating D-galacturonic acid units, sugar, and a calcium”. The transitional phrase "consisting of" excludes any element, step, or ingredient not specified in the claim. In re Gray, 53 F.2d 520, 11 USPQ 255 (CCPA 1931). MPEP 2111.03. However, milk powder or milk liquid as a calcium source present in the blend are additional elements because milk powder or milk liquid as a calcium source can also include other elements (e.g., mineral/nutrients besides calcium). Therefore, it is unclear whether the blend includes only calcium or the blend includes calcium source which can have components other than calcium in it.
Claims 4 and 6 recite the solution comprises 25 mg of calcium for each gram of low methoxyl pectin. The claims also recite low methoxyl pectin is present in the blend at about 18 wt% and the calcium is present in the blend in amount of about 4 wt%. The ratio of 18% pecting to 4% calcium equates to about 4.5:1 (pectin to calcium). However, 25 mg of calcium for each gram of low methoxyl pectin equates to a ratio of 40,000:1 (pectin to calcium). Thus, the metes and bounds of the claims are indefinite because it is unclear what amounts of pectin and calcium are required in the blend.
Claim 6 recites a blend consisting of low-methoxyl pectin that is a polysaccharide having a backbone of repeating D-galacturonic acid units, sugar, and calcium. Claim 6 further recites “wherein the polysaccharide of the blend …. further comprising at least one of L-rhamnose, 3-deoxy-D-manno-oct-2-ulsonic acid IUPAC symbol (KDO), a D-galactose, L-fucose, D-xylose, D-glucuroic acid, L-galactose, L- arabinopyranose, L-arabinofuranose, D-apiose, or L-aceric acid”. The transitional phrase "consisting of" excludes any element, step, or ingredient not specified in the claim. In re Gray, 53 F.2d 520, 11 USPQ 255 (CCPA 1931). MPEP 2111.03. The polysaccharide of the blend …. further comprising at least one of L-rhamnose … or L-aceric acid, are excluded from the blend because of consisting of language recited in the previous limitation which limits the blend to only the elements recited therein. Thus, the scope and metes and bounds of claim 6 are unclear because it is unclear to the examiner whether the blend consists of only low-methoxyl pectin that is a polysaccharide having a backbone of repeating D-galacturonic acid units, sugar, and calcium, or whether the blend requires the polysaccharide further comprising at least one of L-rhamnose … or L-aceric acid.
Claim 32 recites “The method of claim 32”. There is insufficient antecedent basis for this limitation in the claim because there is no previous claim 32 and the claim cannot depend on the claim itself. It is unclear what claim this claim 32 is depending from.
Claims 8-9, 24-31 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 1-2, 4, 6, 8-9 and 25-26, 28-29, 31-33 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.
Similarly, regarding the claimed limitation which recite calcium source as a catalyst or calcium catalys, the calcium acting as a catalyst is an intended use of calcium in the methods/blend of the instant claims and the prior art teaching calcium/calcium source along with the blend and the method steps recited in the claims, the calcium/calcium source would necessarily be capable of the intended use of being a catalyst.
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 at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Claims 24, 27, 30 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) as applied to claims 1-2, 4, 6, 8-9 and 25-26, 28-29, 31-33 above and further in view of LATimes (https://www.latimes.com/lifestyle/story/2020-02-28/how-do-i-know-if-my-plant-has-enough-water).
The combined references discussed supra do not teach the additional step claim of drying the plant roots after application of the solution (which comprises applicant’s blend). However, this deficiency in the above combined references is addressed by LATimes.
LATimes teaches that generally speaking, plants like to dry out between feedings because if the soil is left too wet for too long it can cause root rot (See 3rd full paragraph). Thus, letting the soil dry out (which invariably dries the roots to at least some degree) between watering/feedings/treatments is key so that plants receive the perfect balance of water and oxygen.
Thus, by treating the roots with the solution taught by the combined references as discussed above and letting the soil dry and/or roots dry in between applications would obviously lead to applicants claimed properties as these are result effective of applying the claimed solution as taught by the combined references, especially in the absence of evidence to the contrary.
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to add the step of drying the plant roots/letting the plant roots dry after they are treated with the claimed solution as taught by the combined references in order to allow the solution to dry on the roots and effect the claimed properties because it was known in the art that plants like to dry out between feedings/treatments because if the soil is left too wet for too long it can cause root rot which harm the roots rather than help them grow. Thus, one of ordinary skill in the art would know to let the plant roots and soil dry after treating them with the claimed solution so as to not cause root rot in the plants.
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 at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments/Remarks
Applicant’s arguments regarding the previous 103 rejections over Shepard et al. are rendered moot because the new 103 rejections above do not utilize Shepard as the primary reference in the rejections. The examiner will respond to remarks as they pertain to the current 103 rejections.
Applicant argued that the concentration of 17% pectin, 78% sugar and 25 mg calcium/g of pectin permits the composition to form a gel around the plant roots and this criticality in the amount of pectin, sugar and calcium is not taught.
In response, while applicant assert that the claimed concentration of pectin, sugar and calcium is critical to forming gel around the plant roots, applicant have not provided any evidence / results which support this argument by the applicant. “The arguments of counsel cannot take the place of evidence in the record.” In re Schulze, 346 F.2d 600, 145 USPQ 716, 718 (CCPA 1965), In re Huang, 40 USPQ 2d 1685 (Fed. Cir. 1996), In re De Blauwe et al., 222 USPQ 191, (Fed. Cir. 1984). Applicant has not provided any factual evidence establishing unobviousness. Thus, applicant should bring forth evidence / results which show the claimed concentrations of pectin, calcium and sugar being critical and having unexpected effect.
Applicant argued that prior art teaches calcium serving as a nutrient and the claimed 25 mg calcium/g of pectin serves not as a nutrient but as a catalyst and that the claimed amount of catalyst calcium is outside the normal range of calcium used as a nutrient.
In response, firstly as discussed in the 112(b) rejections above, the ratio of 18% pectin to 4% calcium equates to about 4.5:1 (pectin to calcium). However, 25 mg of calcium for each gram of low methoxyl pectin equates to a ratio of 40,000:1 (pectin to calcium). Thus, the metes and bounds of the claims are indefinite because it is unclear what amounts of pectin and calcium are required in the blend. Further, as discussed in the 112(b) rejection above, while the instant specification disclose that a “catalyst” may be necessary to commence or enhance formation of the structure-related gelling of the polysaccharide (para 0051-0052), the specification do not provide a clear and explicit definition of what a catalyst is because “may be” is optional language and as such this definition is not required by applicant’s specification. This, it is unclear what exactly constitutes a catalyst and/or what is the exact function of a blend in the catalyst. Moreover, the calcium acting as a catalyst is an intended use of calcium in the methods/blend of the instant claims and the prior art teaching calcium/calcium source along with the blend and the method steps recited in the claims, the calcium/calcium source would necessarily be capable of the intended use of being a catalyst.
Regarding applicant’s arguments of Shepard being non-analogous art directed to foodstuff and that one skilled in the art would not use foodstuff formulation for agriculture use and specifically for plant and plant root growth, applicant’s attention is respectfully drawn to the new 103 rejection above which utilizes Liles as the primary reference and Shepard is utilize for its teachings of pectin, calcium and sugar solution which form gels. As discussed supra, 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.
Applicant argued that Qi is mixing glucose with sterile soil and not applied directly to roots as recited in instant claims. Also, argued that Flis doesn’t teach calcium applied directly to root.
In response, the examiner argues that the instant claims do not require the glucose or calcium is applied directly to roots. Glucose or calcium mixed in the soil would necessarily come into contact with the roots of the plant which grow in the soil. Further, 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. Mucilage minerals include monovalent and divalent cations (e.g., calcium) capable of being exchanged for other cations in the rhizosphere. Thus, it would have been obvious to one skilled in the art to apply sugar and calcium component to the root because the natural root exudates require and/or comprise sugar and calcium component.
Applicant argued that Liles teaches a composition comprising a plant growth promoting rhizobacteria (PGPR) with a pectin as a carrier for the microorganism. Thus, Liles does not teach a blend consisting of pectin, sugar, and calcium.
In response, Liles discloses that optionally the pectin functions as a carrier for the PGPR and/or the inoculant includes a carrier other than the pectin (para 0009). 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.
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.
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/A.S/ Examiner, Art Unit 1616
/SUE X LIU/ Supervisory Patent Examiner, Art Unit 1616