DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicants’ submission filed on May 22 2026 has been entered.
Receipt of Arguments/Remarks filed on May 22 2026 is acknowledged. Claims 14-17 and 24-25 were/stand cancelled. Claims 1, 4-6, 9, 11, 13, 21 and 23 were amended. Claims 26-27 were added. Claims 1-13, 18-23 and 26-27 are pending.
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 .
Claim Rejections - 35 USC § 112-New Matter
The following is a quotation 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 35 U.S.C. 112 (pre-AIA ), first paragraph:
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 26-27 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 pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. This is a new matter rejection.
Claims 26-27 introduce new matter as the claims recite the limitation: "the planting medium exhibits at least a 25% improvement in water retention after rewetting relative to an untreated control” and “exhibits improved rewetting following drying compared to untreated peat”. There is no support in the specification for these limitation. The limitation of: "at least 25% improvement…relative to an untreated control*" or “exhibits improved rewetting following drying compared to untreated peat” was not described in the specification as filed, and person skilled in the art would not recognize in the applicant’s disclosure a description of the invention as presently claimed. The specification discloses in Table 1 the effect of PO placement on Peat Moss rewetting. But this is for specific examples none of which contain a wetting agent that falls within the scope instantly claimed and thus cannot serve as base for a claim limitation directed to the properties recited with different compounds. While the specification does discuss that treating the plants with the claimed additive increases plant survival under reduced water conditions by slowing the rate of moisture loss and/or improving the amount and evenness of moisture absorbed on subsequent water events (paragraph 0006). The particular limitations recited in the claims are not taught. Furthermore, MPEP 2163.06 states: “Applicant should therefore specifically point out the support for any amendments made to the disclosure.” Applicant has not directed the Examiner to the support in the specification for the amendments. Therefore, it is the Examiner’s position that the disclosure does not reasonably convey that the inventor had possession of the subject matter of the amendment at the time of filing of the instant application.
Claim Rejections - 35 USC § 112-Failure to Further Limit
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 10 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 10 depends from claim 9. Claim 9 was amended to recite the hydrophobic constituent is polyalkylene oxide comprising propylene oxide units. However, claim 10 recite wherein polyalkylene oxide is selected from the group consisting of propylene oxide, butylene oxide and mixtures thereof. Thus, the BRI of claim 10 is that in one embodiment the polyalkylene oxide is only butylene oxide. But claim 9 requires at least some propylene oxide units. Thus, claim 10 is broader than the claim from which it depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-13, 18-23 and 26-27 are rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. (USPGPUB No. 20130079536, cited in the Office action mailed on 9/2/25) in view of Dickess et al. (WO2019057617, cited in the Office action mailed on 9/2/25) and Petrea et al. (USPGPUB No. 20050193791).
Applicant Claims
The instant application claims a method for improving plant health and survival comprising the steps of: (a) providing a horticulture additive formulation comprising:(i) a wetting agent, wherein the wetting agent is a multi-branched star polymer comprising an oxygen-containing and a nitrogen-containing polyfunctional base compound that comprises both (i) at least one amine functionality and (ii) at least one hydroxyl functionality and at least three branches attached thereto, wherein each branch includes at least one hydrophilic and one hydrophobic constituent and wherein the hydrophilic constituent comprises polyalkylene oxide units and the hydrophobic constituent comprises propylene oxide-containing segments, and (ii) a humectant (PEG 400 as elected); (b) providing at least one plant, wherein the at least one plant is contained within a planting medium (peat material as elected), and(c) applying the horticulture additive formulation to the planting medium to improve rewetting of the planting medium following drying.
Determination of the Scope and Content of the Prior Art
(MPEP §2141.01)
Chen et al. is directed to polymeric surfactant. The invention provides a compound of formula I.
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(paragraph 0006) wherein R1 is a core group which includes glycerol (paragraph 0014), sugars such as sucrose and aminosaccharides (paragraph 0016), amines such as ethylene diamine (paragraph 0018), amino alcohols such as ethanolamine (paragraph 0019); AO is an alkylene oxide residue, n is from 0 to 100 wherein R2 is independently H or an acyl group COR3 where each R3 is independently a residue of a polyhydroxyalkyl or polyhydroxyalkenyl carboxylic acid, a residue of a hydroxyalkyl or hydroxyalkenyl carboxylic acid and/or a residue of an oligomer of the hydroxyalkyl or hydroxyalkenyl carboxylic acid (paragraph 0010). The AO group can be a block or random copolymer chain containing both ethylene glycol and propylene glycol residues. Usually, where copolymeric chains of ethylene and propylene oxide units are used the molar proportion of ethylene oxide units used will be at least 50% and more usually at least 70% (paragraph 0031). The total of indices (i.e. nxm) is preferably in the range from 10 to 300 (paragraph 0032). The compounds of the invention can be made by first alkoxylating R1 core groups containing m active hydrogen atoms by techniques well known in the art (paragraph 0034). Compound I is preferably a star block copolymer (paragraph 0038). Surfactants such as compound I can be used as wetting agents in aqueous systems (paragraph 0044; claim 6). The compounds of the invention can be used as surfactants in agrochemical formulations, in particular as adjuvants for example with herbicides, fungicides, insecticides, acaricides and plant growth regulator formulations, dispersants and/or emulsifiers. The amount of surfactant is typically from 1 to 30% based on the formulation. Other conventional components which can be used include oils, solvents, other surfactants (paragraph 0055). Taught is the use with solvents such as glycerin (aka glycerol) (paragraph 0047). Exemplified co-emulsifiers are Tween 80 (alkoxylated fatty acids) and Span 80 (alkoxylated fatty acids). As claimed, the R1 core group is a group having at least 3 free hydroxyl and/or amino groups (i.e. containing oxygen and nitrogen).
Ascertainment of the Difference Between Scope the Prior Art and the Claims
(MPEP §2141.02)
While Chen et al. teaches the use of the surfactant in agrochemical compositions and that the surfactant can be mixed with other conventional ingredients such as surfactants, oils, solvents, etc. which include glycerol (which reads on instantly claimed humectant), Chen et al. does not expressly teach providing at least one plant in a planting medium and applying the composition. However, this deficiency is cured by Dickess et al. and Petrea et al.
Dickess et al. is directed to treated medium for plant growth that has increased water retention. Taught is a treated medium for plant growth comprises a medium for plant growth and a water retaining composition disposed on the medium. The composition contain an alcohol alkoxylate, water, a surfactant and a humectant (page 2). Surfactants include copolymers of ethylene oxide and propylene oxide as well as alkyl polyglycosides. Humectants include polyethylene glycol, glycerol, etc. (page 2). Mediums taught include peak (aka peat moss). Natural peat moss includes nutrients which are beneficial to plant growth and preservation but is well known to be hydrophobic and difficult to wet when it is dry (page 4-5). Suitable examples of polyethylene glycol humectants include those with average molecular weight of about 200 to about 4500 Daltons including PEG 400 (page 10). Applying the composition to the medium includes spraying, pouring, dipping (page 11). Exampled are use of the peat moss with flowerpots.
Petrea et al. is directed to method of treating growth media with multi-branched wetting agents. Taught are additives to use in plant growth media for enhancing the wetting and re-wetting of such soil-free mixtures (paragraph 0002). It is taught that products normally used in the production of plant growth media are generally soil-free and include material such as peat moss (paragraph 0003). Wetting agents are generally substances which are added to surface coatings, water, or oils to increase spreading and penetration action. Wetting agents belong to a group of a more general class of materials called “surface active agents,” hence the term “surfactants.” Characteristic of their properties is the ability to lower surface and interfacial tension between the plant growth media and applied water. Without being bound by theory, it is believed that wetting in soil-free mixtures may occur when the wetting agent is absorbed into, and/or causes inflation of, the natural bladders, or openings, that exist in these organic materials. Wetting may also occur by filling the dead cells within the plant growth media with water (paragraph 0004). It is taught that it is desirable that the wetting agent exhibits a sufficient level of durability to repeated cycles of wetting and drying. These conditions are representative of those that the plant growth media may encounter due to rainfall exposure or from repeated cycles of watering in a greenhouse (paragraph 0007). As taught, the polymer has a core with branching arms which can be made of ethylene oxide and propylene oxide (paragraph 0020; 0022). The use of the inventive additive formulation accords consistent and effective wetting and moisture penetration without any need for further labor-intensive and costly repeated applications of treatment formulations (paragraph 0018).
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Chen et al., Petrea et al. and Dickess et al. and utilize the surfactant of Chen et al. with the medium of Dickess et al. or Petrea et al. One skilled in the art would have been motivated to utilize the surfactant of Chen et al. with this formulation as Chen et al. teaches the surfactants can be used in agrochemical formulations or as wetting agents and Dickess et al. teach agrochemical formulations comprising surfactants such as those that include polyethylene glycol and polypropylene glycol. Petrea et al. recognizes the ability of wetting agents to provide wetting and re-wetting of soil-free mixture. Since the compounds in Chen et al. are surfactants and the formulations of Dickess et al. / Petrea et al. contain surfactants, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2143 KSR International Co. v. Teleflex Inc., 550 US 398, 82 USPQ 2d 1385 (2007).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Chen et al., Petrea et al. and Dickess et al. and utilize polyethylene glycol, polypropylene glycol, glycerol or sorbitol as the humectant. It would have been obvious to one of ordinary skill in the art to try any of the specifically taught humectants as a person with ordinary skill has good reason to pursue known options within his or her technical grasp. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Chen et al., Petrea et al. and Dickess et al. and provide a plant in peat moss and apply the composition. One skilled in the art would have been motivated to apply the composition in this manner as Dickess et al. teaches the composition is for plant growth and can be used with peat moss to provide for water retention. Petrea et al. also recognizes that wetting agents can be used to provide repeated wetting of the soil-less medium such as peat moss. One skilled in the art would have been motivated to apply the composition as necessary in order to achieve the desired level of water retention. There is a reasonable expectation of success as Dickess et al. specifically teaches that the composition with peat moss and Patrea et al. teaches similar wetting agents to Chen et al. to provide wetting to planting medium peat moss.
Regarding the claimed structure of the claimed wetting agent, Chen et al. teaches the shape of the compound is preferably a star polymer (paragraph 0038). A core (R1) taught includes amino alcohols such as ethanolamine (reading on claims 4-5) and expressly claim R1 comprises at least three hydroxyl and/or amino group this suggests the base compound comprising an oxygen and nitrogen and would result in at least three polymer-containing branches (see claim 2; paragraph 0019). Chen et al. also contemplates using both ethylene oxide (reading on claims 6-7) and propylene oxide (reading on claims 8-10) (i.e. instantly claimed hydrophilic and hydrophobic constituents) also reading on polymer-containing branches (see paragraph 0031). It would have been obvious to one of ordinary skill in the art to try any of the specifically taught core materials as a person with ordinary skill has good reason to pursue known options within his or her technical grasp. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007). All of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding the claimed “to improve rewetting of the planting medium following drying”, this is the result of application of the horticulture additive formulation to the planting medium and does modify the actual applying step. Furthermore, Patrea et al. teaches that the synthesis of the multibranch wetting agent includes the reaction of surfactant-type compounds (which possess both hydrophobic and hydrophilic moieties) with the reactive (or functional) sites of the polyfunctional base compound. Thus, the wetting agent initially exists as a single compound (having both hydrophobic and hydrophilic moieties within each branch, and thus within the entire compound), and subsequently, after application to target hydrophobic substrates, may degrade into separate, individual surfactants free from the polyfunctional base compound. As a result, the wetting agent exhibits excellent ability to provide the necessary water adhesion to the hydrophobic surface of the water repellent plant growth media (paragraph 0017). Since the surfactant of Chen et al. contains the same hydrophobic and hydrophilic groups it would be expected to provide the same advantages taught in Patrea et al.
Regarding claim 6-7, Chen et al. teaches usually, where copolymeric chains of ethylene and propylene oxide units are used the molar proportion of ethylene oxide units used will be at least 50% and more usually at least 70% (paragraph 0031). Claim 7 is interpreted as requiring the polyalkylene oxide moiety to be 100 mol% ethylene oxide for the hydrophilic component. Since the copolymer taught in Chen et al. is made up of ethylene and propylene oxide wherein the ethylene oxide is at least 70% of the polymer chain, then reads on the hydrophilic constituent being 100% ethylene oxide with the hydrophobic constituent being 100% propylene oxide.
Regarding claim 11 and 13, specifically, the recitation “wherein the humectant functions in combination with the multi-branched star polymer to improve rewetting of the planting medium following drying” and “cooperates with the wetting agent to improve rewetting performance of dried planting media”, these clauses does not further limit the active method step(s) defined by the claim, namely applying. "A 'whereby' clause that merely states the result of the limitations in the claim adds nothing to the patentability or substance of the claim." Texas Instruments, Inc. v. International Trade Comm., 988 F.2d 1165, 1172 (Fed. Cir. 1993). See also Minton v. National Assoc. of Securities Dealers, Inc., 336 F.3d 1373, 1381 (Fed. Cir. 2003) ("A whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited."). Note MPEP 2111.04. The wherein clause of claim 11 does not modify the structure of the claimed humectants or modify the method step, rather, the wherein clause merely characterizes the results of those steps. Therefore, this claim is not interpreted as adding any additional limitations other than the requirement of the use of one of the claimed humectants.
Regarding claims 12-13, Dickess et al. teaches suitable examples of polyethylene glycol humectants include those with average molecular weight of about 200 to about 4500 Daltons including PEG 400 (page 10). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Note MPEP 2144.05.
Regarding claims 18-20, the compositions of Dickess et al. contain an alcohol alkoxylate (aka alkoxylated alcohol) (see page 2) which is expressly recited in instant claim 20.
Regarding claim 21-22, the compositions of Dickess et al. contain water (page 2) which is a specifically claimed compatibilizer. Regarding the claimed “that facilitates dispersion of the multi-branched star polymer within the planting medium”, this is merely the result that flows from the use of the compatibilizer. Since the same compatibilizer claimed is taught in Dickess et al. the formulation would be expected to possess the same property. MPEP 2103.
Regarding claim 23, Chen et al. teaches R2 is independently H or an acyl group COR3 where each R3 is independently a residue of a polyhydroxyalkyl or polyhydroxyalkenyl carboxylic acid, a residue of a hydroxyalkyl or hydroxyalkenyl carboxylic acid and/or a residue of an oligomer of the hydroxyalkyl or hydroxyalkenyl carboxylic acid (paragraph 0010) This results in a capping group of ethers, esters, alkyl oxide, at least. Regarding the claimed “to promote interaction with the planting medium”, this property flows from the claimed wetting agent. Since the same capping agents claimed are expressly taught by Chen et al., the property would necessarily flow from the use of the compound in Chen et al. MPEP 2103.
Regarding claims 26-27, Patrea et al. teaches that it is desirable that the wetting agent exhibits a sufficient level of durability to repeated cycles of wetting and drying. These conditions are representative of those that the plant growth media may encounter due to rainfall exposure or from repeated cycles of watering in a greenhouse (paragraph 0007). As taught, the polymer has a core with branching arms which can be made of ethylene oxide and propylene oxide (paragraph 0020; 0022). The use of the inventive additive formulation accords consistent and effective wetting and moisture penetration without any need for further labor-intensive and costly repeated applications of treatment formulations (paragraph 0018). As set forth above Patrea et al. teaches the wetting agent initially exists as a single compound (having both hydrophobic and hydrophilic moieties within each branch, and thus within the entire compound), and subsequently, after application to target hydrophobic substrates, may degrade into separate, individual surfactants free from the polyfunctional base compound. As a result, the wetting agent exhibits excellent ability to provide the necessary water adhesion to the hydrophobic surface of the water repellent plant growth media (paragraph 0017). Therefore, in light of the teachings of Patrea et al., one skilled in the art would have been motivated to manipulate not only the amount of branching arms but the ratio of ethylene oxide and propylene oxide in order to achieve the desired wetting.
Claims 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. in view of Patrea et al. and Dickess et al. as applied to claim 1 above and in further view of Strachan et al. (USPGPUB No. 20130005568).
Applicant Claims
As elected, the compatibilizer is dipropylene glycol.
Determination of the Scope and Content of the Prior Art
(MPEP §2141.01)
The teachings of Chen et al., Patrea et al. and Dickess et al. are set forth above. Chen et al. teaches that conventional components can be included in the formulation these include solvents and diluents (paragraph 0055). Dickess et al. teach that the composition can include solvents other than water (page 5).
Ascertainment of the Difference Between Scope the Prior Art and the Claims
(MPEP §2141.02)
While Chen et al. and Dickess et al. both suggest that solvents are other conventional components which can be included, neither expressly teach dipropylene glycol. However, this deficiency is cured by Strachan et al.
Strachan et al. is directed to safened herbicidal mixtures. Taught are herbicidal mixture comprising surfactant and liquid diluents (paragraph). The invention relates to a method for protecting a propagule or a plant grown therefrom from herbicide injury (paragraph 0008). Propagules means a seed or regenerable plant part. The term regenerable plant part includes plants parts placed in horticultural or agricultural growing media such as moistened soil, peat moss, etc. (paragraph 00019). Liquid diluents include dipropylene glycol (paragraph 0136). Surfactants include alcohol alkoxylates (paragraph 0138). Taught is treating a propagule with the composition (claims 13-14).
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Chen et al., Patrea et al., Dickess et al. and Strachan et al. and utilize dipropylene glycol as a diluent in the formulation. One skilled in the art would have been motivated to utilize dipropylene glycol as both Chen et al. and Dickess et al. suggests that conventional components which can be added can be solvents and Strachan et al. teaches that dipropylene glycol is a known diluent which can be used in formulations applied to propagules which include plants placed in growing media such as peat moss. Therefore, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2143 KSR International Co. v. Teleflex Inc., 550 US 398, 82 USPQ 2d 1385 (2007).
Response to Arguments
Applicants’ arguments filed May 22 2026 have been fully considered but they are not persuasive.
Applicants argue that (1) the examiner relies on Chen for the wetting agent. However, Chen discloses only a broad genus of polymeric surfactants having variability in core structures, degree of branching and chemical functionality. The recited dual functional base compound of the present claims is not disclosed.
Regarding Applicants’ first argument, the instant claims are also broad in that the base can be any compound that comprises an oxygen and a nitrogen, the wetting agent can have at least 3 branches but many more any ratio of hydrophilic and hydrophobic constituents. The examiner cannot agree that Chen et al. does not direct the user to base compounds which contain an oxygen and a nitrogen. Firstly, Chen et al. generally teaches the core (R1) can be sugars such as aminosaccharides (paragraph 0016) and amino alcohols such as ethanolamine (paragraph 0019). Both of these groups, aminosaccharides and amino alcohols contain both an oxygen and a nitrogen. Furthermore, as claimed the R1 is a group having at least 3 free hydroxyl (i.e. oxygen containing groups) and/or amino groups. (claim 2). Therefore, Chen et al. clearly teaches a preference for core/base molecules having the claimed functionality.
Applicants argue that (2) Chen does not teach or suggest polyalkylene oxide hydrophilic segments and propylene oxide containing hydrophobic segments. Chen does not teach that this structure arrangement is relevant to soil wetting or plant health.
Regarding Applicants’ second argument, firstly, Chen expressly teaches the AO group can be a block or random copolymer chain containing both ethylene glycol and propylene glycol residues. Usually, where copolymeric chains of ethylene and propylene oxide units are used the molar proportion of ethylene oxide units used will be at least 50% and more usually at least 70% (paragraph 0031). Therefore, Chen clearly teaches the combination of ethylene oxide and propylene oxide. Secondly, newly cited Patrea et al. teaches that surfactants/wetting agents which contain these ethylene oxide and propylene oxide branches can degrade which allows for improvement in wetting, especially re-wetting after drying. Therefore, the art at the time of the instant invention clearly teaches these groups are relevant to soil wetting.
Applicants argue that (3) Chen is directed to formulation chemistry not plant-medium interactions. It is argued that Dickess fails to remedy these deficiencies. There is no expectation that the surfactants of Chen could be substituted into the soil treatment system of Dickess nor is there a reasonable expectation of success.
Regarding Applicants’ third argument, while Chen et al. cannot render the instant claims obvious by itself, the examiner cannot agree that the use of the surfactants/wetting agents taught in Chen et al. would not be applicable to the teachings of Dickess. Chen generally teaches that the surfactant such as compound (I) can be used in crop protection formulations particularly as adjuvants, dispersants and/or emulsifiers in agrochemical formulations (paragraph 0044). Paragraph 0055 of Chen states that the compounds of the invention can be used as surfactants in agrochemical formulations, in particular as adjuvants for example with herbicides, fungicides, insecticides, acaricides and plant growth regulator formulations. Therefore, Chen makes it clear that the compounds can be used in any agrochemical formulation where a surfactant is needed. Since Dickess teaches agrochemical formulations which require a surfactant and those surfactants include copolymers of ethylene oxide and propylene oxide as well as alkyl polyglycosides, one skilled in the art would have been motivated to utilize the compounds of Chen in Dickess with a reasonable expectation of success. Furthermore, newly cited Patrea et al. provides even further evidence that one skilled in the art would expect the wetting agents of Chen et al. could be utilized in a method which results in improved wetting/re-wetting of a soil-less planting medium such as peat moss.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ABIGAIL VANHORN whose telephone number is (571)270-3502. The examiner can normally be reached M-Th 6 am-4 pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Neil Hammell can be reached on 571-270-5919. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ABIGAIL VANHORN/Primary Examiner, Art Unit 1636
