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 .
Priority
Acknowledgment is made of applicant’s claim for foreign priority application no. CN202210668133.0 filed June 14, 2022 under 35 U.S.C. 119 (a)-(d). Thus, the earliest possible priority for the instant application is June 14, 2022.
Status of the Claims
Claims 1-10 are cancelled.
Claims 11-30 filed 9/15/2023 are pending and examined herein.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 11-18 are rejected under 35 U.S.C. 103 as being unpatentable over Sun et al. (2006). “Formation of Mycorrhiza-like Structures in Cultured Root/Callus of Cathaya argyrophylla Chun et Kuang Infected with the Ectomycorrhizal Fungus Cenococcum geophilum Fr.” Journal of Integrative Plant Biology Vol. 48., in view of Perez-Bermudez et al. (1987), “Factors affecting adventitious bud induction in Pinus elliottii (Engelm.) embryos cultured in vitro.” Plant Cell. 11:25-35., Bian et al. (2020). “An Inducing Rooting Method By Using Fir Unlignified Lateral Branch New Tip As Explant.” CN109479712B (machine translated copy provided), and PhytoTechnology Laboratories® (2014). Technical Information: Agars & Other Gelling Agents. Pg. 1-4.
Claim 11 recites a tissue culture method of Cathaya argyrophylla, comprising the following steps:
inoculating an explant of the Cathaya argyrophylla into an induction medium to allow induction culture to obtain an adventitious bud of the Cathaya argyrophylla; wherein the explant comprises a zygotic embryo; the explant is derived from Cathaya argyrophylla in Jinxiu Yao Autonomous County of Guangxi or Huaping Town in Guilin;
the induction medium comprises a basic medium and 1.5 mg/L of 6-benzyladenine (6-BA); and the basic medium of the induction culture is selected from the group consisting of a DCR medium and a P6 medium;inoculating the adventitious bud of the Cathaya argyrophylla into a proliferation medium to allow proliferation culture to obtain a proliferated adventitious bud; wherein
when the explant is derived from the Cathaya argyrophylla in the Jinxiu Yao Autonomous County of Guangxi, the proliferation medium uses the DCR medium as a basic medium, and further comprises 0.5 mg/L of the 6-BA and 0.2 mg/L of 1-naphthylacetic acid (NAA); alternatively, the proliferation medium uses the DCR medium as a basic medium, and further comprises 1.5 mg/L of the 6-BA and 0.6 mg/L of the NAA; and
when the explant is derived from the Cathaya argyrophylla in the Huaping Town in Guilin, the proliferation medium uses the DCR medium as a basic medium, and further comprises 1 mg/L of the 6-BA and 0.4 mg/L of the NAA;
inoculating the proliferated adventitious bud into a rooting medium to allow rooting culture to obtain a tissue culture seedling; wherein
the rooting medium uses a 1/2MS medium as a basic medium, and further comprises 0.5 mg/L of indole-3-butyric acid (IBA) and 0.2 mg/L of the NAA.
Claim 12 recites the tissue culture method according to claim 11, wherein the induction medium, the proliferation medium, and the rooting medium each further comprise the following components in mass percentage: 3% of sucrose and 4.5‰ of agar.
Claim 13 recites the tissue culture method according to claim 11, wherein the induction medium, the proliferation medium, and the rooting medium each have a pH value of 5.6 to 5.8.
Claim 14 recites the tissue culture method according to claim 12, wherein the induction medium, the proliferation medium, and the rooting medium each have a pH value of 5.6 to 5.8.
Claim 15 recites the tissue culture method according to claim 11, wherein the induction culture, the proliferation culture, and the rooting culture are independently conducted by: a culture temperature of 23°C to 27°C, a daily illumination time of 12 h to 14 h, a light intensity of 2,000 lx to 3,000 lx, and a relative humidity of 60% to 80%.
Claim 16 recites the tissue culture method according to claim 12, wherein the induction culture, the proliferation culture, and the rooting culture are independently conducted by: a culture temperature of 23°C to 27°C, a daily illumination time of 12 h to 14 h, a light intensity of 2,000 lx to 3,000 lx, and a relative humidity of 60% to 80%.
Claim 17 recites the tissue culture method according to claim 11, wherein the induction culture is conducted for 10 weeks; the proliferation culture is conducted for 12 weeks; and the rooting culture is conducted for 8 weeks.
Claim 18 recites the tissue culture method according to claim 12, wherein the induction culture is conducted for 10 weeks; the proliferation culture is conducted for 12 weeks; and the rooting culture is conducted for 8 weeks.
Regarding Claim 11, Sun teaches calli initiated from stem segments and adventitious roots differentiated from young seedlings that were removed and cocultured with Cenococcum geophilum (an Ecotmychorrizal (ECM) fungi) on a modified Murashige-Skoog (MS) medium for improving survivability of the endangered C. argyrophylla [Abstract]. Sun teaches that C. argyrophylla is distributed only in Guangxi, Hunan, Sichuan and Guizhou provinces (i.e. explant derived in Jinxiu Yao Autonomous County of Guangxi or Huaping Town in Guilin) [pg. 1163, col. 1, ¶ 1]. It is well known to those of ordinary skill in the art that Cathaya is a member of the Pinus family, as such, Sun teaches that it is similar to Pinus in embryonic development [pg. 1163, col. 1, ¶ 1].
Sun notes that that plant materials were difficult to prepare for experiments because of the limited availability of seeds, but that in recent studies on the propagation of C. argyrophylla, it was observed that calli and adventitious roots were obtained easily in vitro [pg. 1164, col 1, ¶ 1]. Seeds of C. argyrophylla Chun et Kuang were collected in Dayaoshan, Guangxi Province, China, dried in air, and then stored in a polyethylene bag in darkness at 4 °C until use [pg. 1167, col. 2, ¶ 4]. Seeds were sterilized, capsules removed, and germinated seeds were transplanted into MS medium with 0.20 mg/L 6-benzylaminopurine (6-BAP), 0.02 mg/L α-naphthaleneacetic acid (NAA), 20 g/L sucrose, and 0.75% agar (ie. induction medium) [pg. 1166, col. 2, ¶ 4]. Adventitious roots, which were induced from germinated seedlings without radicals were grown on MMS medium containing 0.46 mg/L (i.e., proliferation medium).
Sun does not disclose a rooting medium, as instead, the adventitious roots underwent inoculation in MS, to which 0.09 mg/L glucose had been added with 0.75% agar for in vivo induction of ECM-like structures. Sun also does not teach inoculation of an explant wherein the explant comprises a zygotic embryo, however Perez-Bermudez teaches adventitious bud induction in Pinus elliottii embryos cultured in vitro (i.e. wherein the explant comprises a zygotic embryo), and teaches woody plant propagation by tissue culture. Perez-Bermudez teaches the action of 6-BA and NAA, varying the method and time of exposure, and also investigated factors such as medium in Pinus elliottii Engelm [Abstract]. Perez-Bermudez teaches that benzyladenine has been shown to be very effective in promoting bud differentiation in most conifer propagation, but that the hormone treatment, the method of exposure, and the optimal duration of the inductive phase vary with the species studied. Perez-Bermudez teaches optimization of embryo culturing in vitro using three different basal media, including MS, 6-BA at concentrations of 0.0 mg/L, 0.5 mg/L, 1 mg/L, and 5 mg/L alone or with NAA at 0.01 mg/L or less [pg. 25, ¶ 2]. This method was taught in Pinus elliotti, but it is indicated that though the concentrations may vary, coniferous species have shown similar effects to hormones in tissue culture [pg. 26, ¶ 2].
Sun and Perez-Bermudez do not explicitly teach the tissue culture method comprising the three mediums of the instant application: the induction medium (DCR medium or P6 medium with 1.5 mg/L of 6-BA, the proliferation medium (DCR medium comprising 0.5 mg/L of the 6-BA and 0.2 mg/L of NAA, 1.5 mg/L 6-BA and 0.6 mg/L NAA, or 1 mg/L 6-BA and 0.4 mg/L NAA); and the rooting medium (1/2 MS medium, 0.5 mg/L indole-3-butyric acid (IBA) and 0.2 mg/L NAA).
However, Bian teaches a method for inducted rooting through explant preparation, disinfection, adventitious shoot induction, adventitious shoot multiplication, and adventitious shoot rooting. Bian teaches that the rooting effect and the tissue culture seedling survival rate are higher than those of an existing methods [Abstract]. This was done in Chinese fir, a different conifer, with documented problematic rate and quality of proliferating seedlings and roots of explants [Background, ¶ 2], similar to C. argyrophylla.
Bian discloses an experiment to optimize the method comprises the following steps: Chinese fir clone (C34 or C35) shoots were used as explant material and disinfected, the treated explants were inoculated into the induction medium, and the culture was induced for more than 30 days to obtain adventitious buds in bottles; wherein the basic medium for the induction medium was ½ MS, ¾ MS, or DCR, and 6-BA (0.6mg/L, 0.8mg/L, 1.0mg/L) and NAA (0.1mg/L, 0.2mg/L, 0.3mg/L) were added (i.e. induction medium comprising DCR medium with 6-BA) [Embodiment 2]. The explants were inoculated into the proliferation medium, and the proliferation culture of the adventitious buds is carried out for more than 40 days; wherein the basic medium of the proliferation medium is DCR, ½ MS, or ¾ MS and 6-BA (0.3mg/L, 0.6mg/L, or 1.0mg/L), NAA (0mg/L, 0.1mg/L, or 0.2mg/L), and/or IBA (0.1 mg/L, 0.2 mg/L, or 0.3 mg/L) were added (i.e. proliferation medium comprising DCR medium, 6-BA and NAA). The obtained explants were inoculated into the rooting medium, and the rooting culture of the proliferated adventitious buds was carried out for more than 30 days; wherein the rooting medium is DCR medium as the basic medium, and IBA (0.2 to 0.4 mg/L) and NAA (0.05 to 0.1 mg/L) was added (i.e. rooting medium comprising IBA and NAA).
Regarding claim 12, Bian explicitly teaches that the sucrose added to each medium is 30 g/mL, which is around 3% mass percentage (i.e. the induction medium, proliferation medium and rooting medium each further comprise 3% of sucrose). Bian 8.2 g/L of carrageenan as the gelling agent, but does not teach 4.5‰ (0.45% or 4.5 g/L) agar. The instant application does not specify the type of agar selected for the mediums which could change the recommended concentration. PhytoTechnology Laboratories® teaches that the recommended concentration varies by the product and the use. The recommended concentration for general plant tissue culture/micropropagation using Agar, Micropropagation Grade is 5.0-8.0 g/L while AgarGellan is 3.5-5.0 g/L [Table 1]. PhytoTechnology Laboratories® also teaches that the carrageenan recommendation for general plant tissue culture/micropropagation is 8.0-10.0 g/L, aligning with the 8.2 g/L carrageenan used in Bian.
Regarding claim 13 and 14, Bian discloses that all culturing mediums each had a pH of 5.8 [Embodiment 2], falling within the pH range listed (i.e. 5.6-5.8).
Regarding claim 15 and 16, Bian discloses that the culturing was conducted with a daily illumination time of 12h.d-15h.; a light intensity of (1500-2000)1x, and a culture temperature 25 ± 2 °C (i.e. 23°C to 27°C, a daily illumination time of 12 h to 14 h, a light intensity of 2,000 lx to 3,000 lx).
Regarding claims 17 and 18, Bian discloses that the inducing occurs for more than 30 days, the proliferating occurs for more than 40 days, and the rooting occurs for more than 30 days [claim 1] (i.e. tissue culture method wherein the induction culture is conducted for 10 weeks; the proliferation culture is conducted for 12 weeks; and the rooting culture is conducted for 8 weeks).
Given that Sun teaches the necessity for propagation of C. argyrophylla, use of MS medium, cytokinin and auxin in propagation on an induction medium and proliferation medium; Perez-Bermudez teaches adventitious bud induction in Pinus embryos using 6-BA and NAA; and Bian teaches a method for adventitious shoot induction through experimentation with IBA, 6-BA, and NAA, trialing ½ MS, ¾ MS, or DCR, following method steps including an induction medium, proliferation medium, and rooting medium, including ranges of light intensity, light intervals, temperatures, and pH containing or overlapping with those of the instant application, as well as a minimum time for induction, proliferation, and rooting medium culturing; it would have been prima facie obvious and within the scope of one of ordinary skill in the art at the time of filing to use the methods of Bian and modify accordingly with Sun and Perez-Bermudez to optimize a tissue culture method of C. argyrophylla using the zygotic embryo as an explant to obtain an adventitious bud derived from C. argyrophylla in Jinxiu Yao Autonomous County of Guangxi or Huaping Town in Guilin, as Sun teaches that it is only found in Guangxi, Hunan, Sichuan and Guizhou provinces.
The experiment as presented in the instant application utilizes comparable procedures to that of Bian, including trialing the three growth regulators (6-BA, IBA, and NAA) with DCR and MS as basic mediums. For the induction and proliferation mediums, Bian trials 6-BA in concentrations of 0.6 mg/L, 0.8 mg/L, and 1.0 mg/L, as opposed to the instant application’s concentrations of 0.5 mg/L, 1.0 mg/L, and 1.5 mg/L; and NAA in concentrations of 0.1 mg/L, and 0.2 mg/L, compared to the instant application’s concentrations of 0.2 mg/L, 0.4 mg/L, and 0.6 mg/L. For the rooting medium, Bian trials IBA (0.2 to 0.4 mg/L) and NAA (0.05 to 0.1 mg/L), as compared to the instant application’s IBA (0.5 mg/L, 1.0 mg/L, and 1.5 mg/L) and NAA (0.2 mg/L).
Although the ranges of hormone concentrations claimed in the instant application are not explicitly the same as those of Bian, the Applicant has not demonstrated the criticality of the higher concentrations. Greater ranges of 6-BA are known to the prior art as shown in Perez-Bermudez, experimenting with concentrations as high as 5.0 mg/L of 6-BA. Use of higher concentrations of IBA and NAA in tissue culture has also been previously demonstrated.1. Thus, testing such ranges would be routine experimentation as there was no evidence of the criticality of the claimed concentrations. Examiner also notes that Bian does not trial 1/2MS medium as a basic medium for the rooting medium. This would merely be routine experimentation and would be an obvious variant to try, absent evidence to the contrary.
With C. argyrophylla embryonic developmental similarities to other Pinus species disclosed in Sun and the success of adventitious bud induction in Pinus embryos disclosed in Perez-Bermudez, one of ordinary skill in the art would have reasonable expectation of success for a similar experiment in C. argyrophylla to obtain an optimized method through routine experimentation. One of ordinary skill in the art would be motivated to try such a method based on the limited number of seeds and need for C. argyrophylla propagation disclosed in Sun.
It would have been prima facie obvious to one of ordinary skill in the art to modify the method of Bian with a different agar medium than carrageenan as an obvious variant. The 8.2 g/L of carrageenan used by Bian falls within the range recommended by PhytoTechnology Laboratories® and comparably, the 4.5‰ agar as claimed in the instant application falls within or close to the recommended range taught by PhytoTechnology Laboratories® for products suggested for general plant tissue culture/micropropagation. Thus, using a different agar product at a recommended concentration would be simply routine optimization with known general tissue culture/micropropagation techniques.
The culture temperature of 23°C to 27°C, daily illumination time of 12 h to 14 h, and light intensity of 2,000 lx to 3,000 lx are routine optimization of the method provided in Bian. The criticality of such conditions or temperatures to the success of adventitious bud formation in the instant application have not been demonstrated. Thus, the temperature, illumination time, and light intensity are considered routine optimization and would have been prima facie obvious to one of ordinary skill in the art at the time of filing. Although the references do not explicitly state that the relative humidity was 60-80%, this is a mere optimization of the methods, absent evidence to the contrary.
Claims 19-30 are rejected under 35 U.S.C. 103 as being unpatentable over Sun, in view of Perez-Bermudez, Bian, and PhytoTechnology Laboratories®, as applied to claims 11-18 above, and further in view of McKeand et al. (1985). “Expression of Mature Characteristics by Tissue Culture Plantlets Derived from Embryos of Loblolly Pine.” J. Amer. Soc. Hort. Sci. 110(5):619-623.
Claim 19 recites a propagation method of Cathaya argyrophylla, comprising the following steps: preparing a tissue culture seedling by the tissue culture method according to claim 11;
and subjecting the tissue culture seedling to transplanting culture to obtain a Cathaya argyrophylla seedling.
Claim 20 recites the propagation method according to claim 19, wherein the induction medium, the proliferation medium, and the rooting medium each further comprise the following components in mass percentage: 3% of sucrose and 4.5‰ of agar.
Claim 21 recites the propagation method according to claim 19, wherein the induction medium, the proliferation medium, and the rooting medium each have a pH value of 5.6 to 5.8.
Claim 22 recites the propagation method according to claim 20, wherein the induction medium, the proliferation medium, and the rooting medium each have a pH value of 5.6 to 5.8.
Claim 23 recites the propagation method according to claim 19, wherein the induction culture, the proliferation culture, and the rooting culture are independently conducted by: a culture temperature of 23°C to 27°C, a daily illumination time of 12 h to 14 h, a light intensity of 2,000 lx to 3,000 lx, and a relative humidity of 60% to 80%.
Claim 24 recites the propagation method according to claim 20, wherein the induction culture, the proliferation culture, and the rooting culture are independently conducted by: a culture temperature of 23°C to 27°C, a daily illumination time of 12 h to 14 h, a light intensity of 2,000 lx to 3,000 lx, and a relative humidity of 60% to 80%.
Claim 25 recites the propagation method according to claim 19, wherein the induction culture is conducted for 10 weeks; the proliferation culture is conducted for 12 weeks; and the rooting culture is conducted for 8 weeks.
Claim 26 recites the propagation method according to claim 20, wherein the induction culture is conducted for 10 weeks; the proliferation culture is conducted for 12 weeks; and the rooting culture is conducted for 8 weeks.
Claim 27 recites the propagation method according to claim 19, wherein a culture substrate of the transplanting culture comprises peat and perlite; and the peat and the perlite in the culture substrate are at a volume ratio of 4:1.
Claim 28 recites the propagation method according to claim 20, wherein a culture substrate of the transplanting culture comprises peat and perlite; and the peat and the perlite in the culture substrate are at a volume ratio of 4:1.
Claim 29 recites the propagation method according to claim 21, wherein a culture substrate of the transplanting culture comprises peat and perlite; and the peat and the perlite in the culture substrate are at a volume ratio of 4:1.
Claim 30 recites the propagation method according to claim 22, wherein a culture substrate of the transplanting culture comprises peat and perlite; and the peat and the perlite in the culture substrate are at a volume ratio of 4:1.
Regarding claim 19, the tissue culture method according to preceding claim 11 is rejected as above as being obvious in view of Sun, Perez-Bermudez, Bian, PhytoTechnology Laboratories®. These references do not explicitly disclose the tissue culture seedling being subjected to transplanting culture to obtain a C. argyrophylla seedling. However, McKeand teaches tissue culture plantlets of loblolly pine (Pinus taeda L.) from adventitious shoots initiated on cotyledons of embryos. McKeand teaches the transfer of the tissue culture seedling following shoot elongation and rooting to 164 ml RL Super Cells containing a medium (i.e. subjecting the tissue culture seedling to transplanting culture) [pg. 620, col. 1, ¶ 1]. The results showed 97.5% survival with further growth in a field trial after the transplanting culture.
Regarding claim 20, as recited above, Bian explicitly teaches that the sucrose added to each medium is 30 g/mL, which is around 3% mass percentage, but does not teach 4.5‰ (0.45% or 4.5 g/L) agar. PhytoTechnology Laboratories® teaches that the recommended concentration varies by the product and the use and that the recommended concentration for general plant tissue culture/micropropagation using Agar, Micropropagation Grade is 5.0-8.0 g/L while AgarGellan is 3.5-5.0 g/L.
Regarding claim 21 and 22, Bian discloses that all culturing mediums each had a pH of 5.8 [Embodiment 2], falling within the pH range listed (i.e. 5.6-5.8).
Regarding claim 23 and 24, Bian discloses that the culturing was conducted with a daily illumination time of 12h.d-15h.; a light intensity of (1500-2000)1x, and a culture temperature 25 ± 2 °C (i.e. 23°C to 27°C, a daily illumination time of 12 h to 14 h, a light intensity of 2,000 lx to 3,000 lx).
Regarding claims 25 and 26, Bian discloses that the inducing occurs for more than 30 days, the proliferating occurs for more than 40 days, and the rooting occurs for more than 30 days [claim 1] (i.e. tissue culture method wherein the induction culture is conducted for 10 weeks; the proliferation culture is conducted for 12 weeks; and the rooting culture is conducted for 8 weeks).
Regarding claims 27-30, McKeand teaches a medium comprised of peat and perlite (i.e. wherein a culture substrate of the transplanting culture comprises peat and perlite), at a ratio of 2 peat:2 vermiculite:1 perlite by volume [pg. 620, col. 1, ¶ 1].
As in the above rejection, it would have been prima facie obvious to one of ordinary skill in the art at the time of filing to use the tissue culture method of Bian modified in view of Sun, Perez-Bermudez, and PhytoTechnology Laboratories® for routine optimization of propagation efforts in C. argyrophylla, including the culture temperature, the daily illumination, and light intensity.
One of ordinary skill in the art would have been motivated to further propagate C. argyrophylla by subjecting the tissue culture seedling to another growth medium to produce a seedling as Sun notes that the population of this endangered species decreases year by year [pg. 1163, col. 2, ¶ 2] Sun also suggests that C. argyrophylla shares developmental similarities to other Pinus species [pg. 1163, col. 1, ¶ 1], indicating that one of ordinary skill in the art would have reasonable expectations of success using a transplantation method for growing out a Pinus species (i.e., loblolly pine) with C. argyrophylla tissue culture seedlings. Although McKeand teaches a medium of 2:2:1 peat to vermiculite to pearlite, there is no demonstrated criticality of the 4:1 peat to perlite ratio disclosed in claims 27-30. Changing the ratio of growing medium would be routine optimization and a 4:1 peat to perlite ratio is known in the prior art2. Applicant is reminded that 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.
Although the references do not explicitly state that the relative humidity was 60-80%, this is a mere optimization of the methods, absent evidence to the contrary.
Conclusion
No claims allowed.
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/EMILY K JOHNSON/
Examiner, Art Unit 1662
/BRATISLAV STANKOVIC/Supervisory Patent Examiner, Art Units 1661 & 1662
1 For example, Rahman et al. (2018) teaches IBA concentrations ranging from 1.0 to 5.0 mg/L and NAA ranging from 1.0 to 5.0 mg/L. Rahman, M., et al. (2018) Effect of Auxin (NAA, IBA and IAA) in Root Regeneration through In vitro Culture of Sugarcane. Int J Plant Biol Res 6(6): 1109.
2 See, for example, Canavera et al (1978), demonstrating experiments in yellow birch seedlings with Jiffy Mix-Plus, Jiffy Mix-Plus and sand (1:1), Promix BX, peat and vermiculite (4:1), and peat and perlite (4:1). In: Canavera, D., (1978). “Effects of various growing media on container-grown yellow birch.” Tree Planters' Notes: A Publication for Nurserymen and Planters of Forests and Shelterbelts, Volumes 29-33, pg. 13.