DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Claims Status
Claimed foreign priority has not been established. The application claims priority to Foreign Application No. CN202210905609.8 filed on 29 July 2022, under 35 U.S.C. § 119(a)-(d) or § 365. However, the applicant has failed to provide a certified English translation of the priority document, as required by 37 CFR 1.55(h)(3).
Since the priority document is not in English and no translation has been submitted, the claimed priority date cannot be accorded at this time. Consequently, any prior art published between the foreign priority date and the U.S. filing date may be citable against the claims.
To perfect the priority claim, the applicant must submit a certified English translation of the foreign priority document, or a verified statement that the priority document is in compliance with 37 CFR 1.55(h)(3) (if already submitted but not recognized). Failure to correct this deficiency may result in the loss of the priority claim, affecting the effective filing date for prior art purposes (see MPEP § 213).
Claims 1-20 are pending and under current examination in this application.
Claim Rejections - 35 USC § 112(b)
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 Applicant regards as his invention.
Claims 4, 8, 12 and 17 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, regards as the invention.
Claims 4 and 12 recite, “wherein the water content of the BSM after adjustment is 10% to 25%.", however fail to specify whether the "water content of the BSM" is measured on a weight/weight (w/w) or weight/volume (w/v) basis. This distinction is material because w/w (mass concentration) and w/v (weight per volume) yield different numerical values for the same composition, leading to uncertainty in the scope of the claim (see MPEP § 2173.02 and Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898 (2014)). Respective dependent claims 8 and 17 are included in this rejection because they do not cure the defect noted above.
To overcome this rejection, Applicant may amend the claims to specify the basis of measurement (i.e., "…wherein the water content of the BSM after adjustment is 10% to 25% (w/w)." or "…wherein the water content of the BSM after adjustment is 10% to 25% (w/v).").
Claim Rejections - 35 USC § 112(d)
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.
Claims 14-20 are 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.
Claims 14-18 recite a capability of the herbicide but do not further limit the composition of the herbicide. Claims 19-20 talk about the weeds the herbicide is capable of killing but also do not further limit the composition of the herbicide.
To overcome this rejection, applicant must either cancel the redundant dependent claims, or amend them to add actual substantive limitations, supported by the original disclosure.
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.
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 1-20 are rejected under 35 U.S.C. § 103 as being obvious over Morra et al. (US20080182751A1; published 31 July 2008), hereinafter referred to as Morra1, in view of Morra et al. (US20200221710A1; published 16 July 2020), hereinafter referred to as Morra2, and further in view of Bletsky et al. (WO2021077214A1; published 29 April 2021), hereinafter referred to as Bletsky.
Regarding the limitations of instant claims 1, 9, and 14-18, Morra1 teaches a Brassica seed meal (BSM)-based bio-herbicide for inhibiting weeds and a preparation method thereof comprising (claims 1, 3, 10, 24), as an aqueous composition (claims 15, 27 and 39) with a controlled pH level (claim 20), wherein adding water to the BSM causes enzymatic hydrolysis of 4-OH benzyl glucosinolate by myrosinase, (claim 40) in a volume known to promote this hydrolysis (claim 42).
Regarding the additional sealing treatment limitation of instant claim 1, Morra1 teaches, “Glucosinolates are normally stored within plant tissues. Toxicity is not attributed to intact glucosinolates. Upon tissue damage, enzymes within the plant trigger their hydrolysis to several compounds including nitriles, isothiocyanates (ITCs), organic cyanides, oxazolidinethiones, and ionic thiocyanate (SCN−), that are released upon enzymatic degradation by myrosinase (thioglucoside glucohydrolase, EC 3.2.3.1) in the presence of water as indicated below in Scheme 1. Toxicity is not attributed to intact glucosinolates, but instead to biologically active products such as ITCs, organic cyanides, oxazolidinethiones (OZTs), and ionic thiocyanate (SCN−) released upon enzymatic degradation by myrosinase (thioglucoside glucohydrolase, EC 3.2.3.1) in the presence of water. Degradation also occurs thermally or by acid hydrolysis.” (¶[0044]), indicating that hydrolysis to release bioactives in BSM may also be induced by heating, however, Morra1 does not disclose conducting a sealing treatment on the BSM at 40° C to 50° C for 4 h to 6 h.
Bletsky teaches the use of thiocyanate or isothiocyanate prepared from glucosinolate hydrolysate for weed control (Abstract) where comminution of plant material by water to extract glucosinolate is “…performed at temperatures between 4 °C or about 4 °C and 50 °C or about 50 °C…” (¶[0056]) and “At a later stage, the preparation may be obtained and the hydrolysis reaction may be conducted by ensuring sufficient quantities of water or an aqueous buffer are present and the temperature of the preparation is brought up to, for example, from about 18 °C to about 40 °C.” (¶[0060]), indicating heating the BSM to about 40°-50° C to enhance hydrolysis and reduce moisture content to increase long-term storage stability. Bletsky further teaches that heating in excess of about 60 °C will cause substantial and irreversible loss of the myrosinase activity, thus resulting in a glucosinolate preparation substantially free of bioactive hydrolysis products (¶[0061]). Although length of heating time is not specified, it would be a matter of routine experimentation at the specified temperature range to determine treatment hours required to reduce BSM moisture content to an acceptable percentage to ensure stability of BSM during storage while also enhance hydrolysis without causing irreversible loss of the myrosinase activity.
Regarding the addition of vitamin C limitation of instant claim 1 and the concentration limitations of instant claims 3 and 11, Morra1 does not explicitly disclose adding vitamin C to a BSM at 0.1% to 0.5% of a mass of the BSM. However, Morra1 teaches that various additives may be combined with the BSM as, “A person of ordinary skill in the art will appreciate that the plant material or processed plant material may be combined with at least one additional material to form a composition. By way of example, and without limitation, the additional material may be selected from natural pesticides, natural fertilizers, synthetic fertilizers, synthetic herbicides, synthetic pesticide, binders, colorants, pH adjusters/stabilizer, surfactants, capsaicin, onion tissue, one or more microorganism, one or more products provided by a microorganism, or combinations thereof.” (¶[0010]). Also, Morra1 teaches, “Another disclosed embodiment concerns the addition of water to plant material and/or seed meal to effectively produce bioactive agents, such as ionic thiocyanate. The extract, comprising an aqueous composition of bioactive agents, such as the ionic thiocyanate, can then be applied to the soil by spraying. An alternative embodiment involves combining the extract with surfactants or other adjuvants in order to increase the efficacy of the process.” (¶[0014]), wherein vitamin C/ascorbic acid is a known cofactor that activates the myrosinase enzyme, responsible for glucosinolate hydrolysis into bioactive agents such as isothiocyanates (see Morra2 below) and thus, it is an adjuvant that facilitates and increases the efficacy of the process.
Morra2 teaches the use of Brassica seed meal in combination with water for weed control (Abstract), wherein, “When ascorbic acid [vitamin C] was added to the reaction mixture, almost quantitative release of allyl isothiocyanate and ionic thiocyanate was observed. Ascorbic acid acts as a co-factor for myrosinase and it is naturally present in mustard meal. However, with high glucosinolate concentrations present in mustard extracts, additional amounts of ascorbic acid are needed. Particularly, when 0.1-50 mM [0.0176-0.88% (w/w)] of ascorbic acid was added to the hydrolysis solution, all of sinalbin was converted to SCN−, and all sinigrin was converted to allyl isothiocyanate (FIG. 16). With respect to FIG. 16, the mass balance closure represents the percentage of glucosinolate converted to the biologically active allyl isothiocyanate and ionic thiocyanate on a molar basis.” (¶[0133]; see also Drawing FIG. 16 and reference thereto in ¶[0031]), thus squarely encompassing the use of 0.1-0.5% vitamin C as within the optimal use range, as per the instant claimed limitation.
It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to add the missing limitation of heat-sealing treatment of the BSM to the invention of Morra1 because heat sealing treatment is standard in the art to stabilize bioactive seed meals to extend storage shelf-life and one would be motivated with a reasonable expectation of success to use the temperature range taught by Bletsky, that would further aid/enhance hydrolysis without irreversibly damaging myrosinase enzyme responsible for the hydrolysis that generates the herbicidal activity. The heat treatment incubation time range would be a matter of routine experimentation, within a limited range of hours at the specified temperature range, in which moisture content is reduced to the industry standard for long term storage of seed meals, optimally within a range that also increases hydrolysis and limits myrosinase enzyme degradation.
It also would have been obvious to add 0.1-0.5% vitamin C to the invention of Morra1 because Morra1 discloses the invention with the use of any adjuvant that facilitate and increase the efficacy of the process, wherein Morra2 teaches the use of vitamin C, using the claimed concentration range, as a co-factor to enhance hydrolysis to produce bioactive constituents used for weed control when combined with BSM and water, thus making this an obvious adjuvant choice to add to the invention of Morra1. A person of ordinary skill in the art would have been motivated to combine the teachings with a reasonable expectation of success (see KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007)).
Regarding the pH adjustment value range limitations of instant claims 5-8 and 13, Morra1 teaches selecting pH levels to provide desired bioactive agent stability (¶[0012]), noting that, “in a soil environment buffered at pH values typically between 5 and 7, significant amounts of SCN− [biologically active ionic thiocyanate] production [from seed meal glucosinolates] are expected in a relatively short time period.” (¶[0077]), thus expressly disclosing the instant claimed pH range as a pH range know in the art to optimize activity.
Regarding the water content adjustment concentration limitations of instant claims 4 and 12 , Morra1 teaches in Example 13, “a 7.3:1 ratio of seed meal to tap-water” (¶[0163]), which is equivalent to 12% water content of the BSM, falling within the instant claimed range of 10-25%.
It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to use the pH range expressly disclosed in the invention of Morra1 and adjust the concentration of water to that of the instant claimed range as Morra1 discloses an example embodiment of the invention using a concentration within the claimed range and adjusting the concentration to any other value within the claimed range would be a matter of routine experimentation for formulations in agricultural chemistry.
Regarding the limitations of instant claims 19 and 20, Morra1 teaches, “Solely by way of example, and without limitation, a list of weeds that have been controlled using working embodiments of the present invention include prickly lettuce (Lactuca serriola), mayweed chamomile (Anthemis cotula), common lambsquarters (Chenopodium album), wild oat (Avena fatua), redroot pigweed (Amaranthus retroflexus), and combinations thereof. It is very likely that additional weeds will be controlled, and studies are ongoing to fully elucidate the biopesticidal scope of disclosed embodiments.” (¶[0064]). But, Morra1 does not disclose specifically inhibiting weed germination of Portulaca oleracea L., Bothriochloa ischaemum L., Eleusine indica L., Setaria viridis L., or Amaranthus spinosus L.
Bletsky teaches the use of thiocyanate or isothiocyanate prepared from glucosinolate hydrolysate for weed control (Abstract) to control target example weed plants include, without limitation, pigweed (Amaranthus spp.) and purslane (Portulaca spp.) (¶[0074]) and goosegrass (Eleusine indica) and foxtail (Setaria spp.) (¶[0075]).
Bothriochloa ischaemum L. is not explicitly listed, but aligns closely with the listed perennial monocotelydenous weeds carpetgrass (Axonopus spp.) (¶[0075]), bermudagrass (Cynodon dactylon) and johnsongrass (Sorghum halepense) (¶[0077]).
It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to add the missing limitation of the claimed species to the invention of Morra1 because Bletsky teaches the use of bioactives generated by BSM in water for weed control explicitly of all these species except Bothriochloa ischaemum L. It would be obvious to try the use the invention for weed control of Bothriochloa ischaemum L., with an reasonable expectation of success, given that Bletsky teaches the use for other similar perennial monocotelydenous weeds.
Instant claims 2 and 10 are included in this rejection because rejected instant claims 3, 4, and 6-8 depend from instant claim 2 and rejected instant claims 11, 12, 15-17 and 20 depend from instant claim 10.
Claims 1, 2, 9 and 10 are rejected under 35 U.S.C. § 103 as being obvious over Morra et al. (US20080182751A1; published 31 July 2008), hereinafter referred to as Morra1, in view of Morra et al. (US20200221710A1; published 16 July 2020), hereinafter referred to as Morra2, and in further view of Bletsky et al. (WO2021077214A1; published 29 April 2021), hereinafter referred to as Bletsky, and Peng et al. (Peng J, Liu H, Shen M, Chen R, Li J, Dong Y. The inhibitory effects of different types of Brassica seed meals on the virulence of Ralstonia solanacearum. Pest Manag Sci. 2021 Nov;77(11):5129-5138; electronically published 27 July 2021), hereinafter referred to as Peng.
Morra1, Morra2, Bletsky and teach the limitations of instant claims 1 and 9 (as described above), from which instant claims 2 and 10 depend, respectively, however do not teach specific limitations of instant claims 2 and 10.
Regarding instant claims 2 and 10, Morra1 does not disclose the specific use of a Brassica juncea L. seed meal (BjSM) and a Brassica campestris L. seed meal (BcSM) mixture at a mass ratio of (1-2):(1-2).
Peng teaches a mixture of 1:1 BcSM and BjSM were found to work together synergistically (as CSM; see page 2, section 2.2), wherein at 60 days, BcSM had a 39.3% disease inhibition rate, BjSM had a 92.8% disease inhibition rate and the mixture of both as CSM had a 96.4% disease inhibition rate (page 7, section 3.6), thus encompassing the instant claimed mixture mass ratio.
It would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to add the missing limitation of preparing the BSM by mixing BjSM and BcSM at a mass ratio of (1-2):(1-2) to the invention of Morra1 because a mass ratio within the claimed range was taught by Peng to work synergistically to enhance herbicidal effects and disease inhibition, thus it would be obvious to try the mixture with a reasonable expectation of success in weed inhibition. Other values within the claimed mass ratio range would be an obvious optimization within standard agricultural blending practices.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REBECCA L. SCOTLAND whose telephone number is (571) 272-2979. The examiner can normally be reached M-F 9:00 am to 5:00 pm EST.
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/RL Scotland/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615