DETAILED ACTION
Receipt of Arguments/Remarks filed on December 2 2025 is acknowledged. Claims 24-25 were/stand cancelled. Claim 1 was amended. Claims 1-23 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 .
Withdrawn Rejections/Terminal Disclaimer
The terminal disclaimer filed on December 2 2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of US Patent 11891346 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Therefore, the rejection of claims 1-23 on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Patent No. 11891346 in view of Chen et al. is withdrawn.
The terminal disclaimer filed on December 2 2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of any patent granted on copending Application No. 17991054 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Therefore, the provisional rejection of claims 1-23 on the ground of nonstatutory double patenting over claims 1-20 of copending Application No. 17991054 (USPGPUB No. 20230081187) in view of Chen et al. is withdrawn.
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 1-23 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).
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 (see explanation of elected species above), wherein the wetting agent is a multi-branched polymer comprising an oxygen-containing and a nitrogen-containing polyfunctional base compound and at least three branches attached thereto, wherein each branch includes at least one hydrophilic and one hydrophobic constituent, 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.
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). 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).
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.
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 flower pots.
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. and Dickess et al. and utilize the surfactant of Chen et al. with the medium of Dickess 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 and Dickess et al. teach agrochemical formulations comprising surfactants such as those that include polyethylene glycol and polypropylene glycol. Since the compounds in Chen et al. are surfactants and the formulations of Dickess 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. and Dickess et al. and utilize polyethylene glycol, polypropylene glycol, glycerol or sorbitol. 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. and Dickess et al. and utilize 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. 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 flower pots.
Regarding the claimed structure of the claimed wetting agent, Chen et al. teaches the shape of the compound is preferably a star polymer. A core (R1) taught includes glycerol, sugars such as sucrose and aminosaccharides, amines such as ethylene diamine, amino alcohols such as ethanolamine (reading on claims 4-5) which all read on the elected species (sucrose and glycerol) as well as the claim scope of base compounds with oxygen and nitrogen and would result in at least three polymer-containing branches. 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 reaching on polymer-containing branches. 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 claims 12-17, 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).
Regarding claim 21-22, the compositions of Dickess et al. contain water.
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. This results in a capping group of ethers, esters, alkyl oxide, at least.
Claims 1-23 are rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. in view of Dickess et al. and 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. 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., 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).
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., Dickess et al. and Strachan et al. and utilize the surfactant of Chen et al. with the medium of Dickess 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 and Dickess et al. teach agrochemical formulations comprising surfactants such as those that include polyethylene glycol and polypropylene glycol. Since the compounds in Chen et al. are surfactants and the formulations of Dickess 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., Dickess et al. and Strachan et al. and utilize polyethylene glycol, polypropylene glycol, glycerol or sorbitol. 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. and Dickess et al. and utilize 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. 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 flower pots. Since Strachan et al. suggests application to a propagule which includes a plant in a planting medium such as peat moss, one skilled in the art would have been motivated to apply the composition in this manner.
Regarding the claimed structure of the claimed wetting agent, Chen et al. teaches the shape of the compound is preferably a star polymer. A core (R1) taught includes glycerol, sugars such as sucrose and aminosaccharides, amines such as ethylene diamine, amino alcohols such as ethanolamine (reading on claims 4-5) which all read on the elected species (sucrose and glycerol) as well as the claim scope of base compounds with oxygen and nitrogen as well results in at least three polymer-containing branches. 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. 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 claims 12-17, 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).
Regarding claim 21-22, dipropylene glycol is rendered obvious above.
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. This results in a capping group of ethers, esters, alkyl oxide, at least.
Response to Arguments
In the Non-Final Rejection mailed September 2 2025 the examiner noted that
Applicants elected sucrose/glycerin 14000 40/20/40. This specific structure is unclear because no description other than the name is provided for the compound. Additionally, this compound does not even appear to fall within the scope of the claims. Claim 1 recites a wetting agent comprising an oxygen-containing and a nitrogen-containing polyfunctional base compound. While sucrose or glycerin can serve as an oxygen-containing base compound, claim 1 requires both oxygen and nitrogen to be part of the base compound. Thus the species elected doesn’t even fall within the scope claimed. Therefore, the election is interpreted as being directed to either ethanolamine or diethanolamine (as recited in claim 5) or aminosaccharides (which would contain both nitrogen and oxygen).
Applicants have not responded to the election nor have Applicants indicate that the examiner’s interpretation is incorrect. Therefore, the election and interpretation is maintained.
Applicants’ arguments filed December 2 2025 have been fully considered but they are not persuasive.
Applicants argue (page 5-6) that (1) in order to establish obviousness there must be a motivation or suggestion to combine the references, there must be a reasonable expectation of success and all the claim limitations must be considered. It is argued that these have not been met. It is argued that while Chen teaches plant growth regulator formulations this term is unclear. Dickess teaches a treated medium for promoting plant growth. Therefore without any further guidance or clarification from Chen the composition of Chen could be used to inhibit plant growth which is in contrast to Dickess. One skilled in the art would not look to the teachings of Chen to combine them with Dickess.
Regarding Applicants’ first argument, 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. Whether the agrochemical formulation is utilized to promote plant growth or to inhibit weed growth would not matter. The surfactant of Chen when used in either formulation would function as a surfactant. 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.
Regarding Applicants argument that the examiner has failed to consider all limitations of the currently amended claims, the examiner cannot agree. The polymers of Chen are star polymers and the examiner clearly pointed to where in Chen this structure is taught.
Applicants argue (page 6) that (2) Strachan teaches away from its combination with Chen in view of Dickess and with that which is claimed by Applicant. Strachan teaches herbicidal mixtures for plants useful for controlling undesired vegetation, while Dickess teaches a treated medium for promoting plant growth and Chen teaches a phrase which is unclear. It is argued that Strachan teaches the inclusion of dipropylene glycol in a mixture utilized as an herbicide (i.e. used to kill plants). One skilled in the art would not have been motivated to combine the teachings of Strachan with those of Chen.
Regarding Applicants’ second argument, Strachan teaches that dipropylene glycol is a liquid diluent (paragraph 0136). Strachan teaches that the formulations will typically contain effective amount of active ingredient, diluent and surfactant (paragraph 0134). So clearly the diluent is not the active ingredient. Furthermore, Strachan clearly teaches an herbicide safener composition comprising at least one compound and at least one of a surfactant, solid diluent and liquid diluent. The invention relates to methods for protecting a plant from herbicide injury comprising applying the composition. The method relates to protecting a propagule or plant from injury (paragraph 0008). Therefore, the method of Strachan is clearly directed to controlling the growth of undesired vegetation not vegetation which is desirable. Furthermore, it is not the dipropylene glycol which is acting as the herbicide but is serving as a diluent. Chen et al. teaches conventional components such as solvents (aka diluents) can be included (paragraph 0055). Therefore, the examiner cannot agree that one skilled in the art would not be motivated to combine the references and arrive at the instant invention. Clearly dipropylene glycol is taught as a conventional liquid diluent which is used in agrochemical compositions. 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). Including the dipropylene glycol in the composition of Chen et al. and Dickess et al. would result in using the diluent in the conventional way it is utilized, specifically as a solvent in the medium.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. USPGUPB No. 20140270984 discusses polyol-based humectant compositions that effectively increase moisture retention in soils. USPGPUB No. 20050193791 teaches treating plant growth media with multi-branched wetting agent.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to 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 at 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