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 .
Claim Objections
Claims 1, 6 and 14 are objected to because of the following informalities:
Claims 1, 6 and 14 recite “mangeferin” which appears to be a typo of mangiferin.
Appropriate correction is required.
Claim Rejections - 35 USC § 112 – Indefiniteness
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 2 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Providing the same numerical designation for the clamed ingredients in dependent claim 2 creates confusion insofar as it appears that the roman numerals in the body of the claim 2, i.e. (i), (ii), (iii), correspond with the roman numerals of claim 1, i.e., (i), (ii), (iii), when they do not. The Examiner recommends use of alternative numbering or designations for each group, e.g., claim 7. For the purpose of examination, each of the ingredient groupings of claim 2 will be interpreted as an optional embodiment of the pesticide composition of claim 1.
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.
1) Claims 1, 3-6, 8-14 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Habib et al. (US 2014/0121100 A1, publication date 05/01/2014), Hahne et al. (WO 2018/175677 A1, publication date 09/27/2018) and Norsworthy et al. (US 2021/0145005 A1, publication date 05/20/2021; cited in IDS 02/15/2024), as evidenced by Helmenstine (Science Notes, 2022 [retrieved 09/10/2025], https://sciencenotes.org/monocot-vs-dicot-how-to-tell-the-difference/).
Regarding instant claims 1 and 3-5, Habib discloses “seed treatment compositions comprising one or more glutathiones for enhancing plant growth and methods thereof” (emphasis added) [abstract]. According to Habib the composition may also comprise chitosan [0068], flavonoids such as flavones [0073], a polymer such as cellulose (i.e., instant claim 4) [0099] and a carrier such as water (i.e., flowable liquid; instant claim 3) [0049]. Additionally, Habib discloses the composition may comprise herbicides [0116].
Habib does not disclose baicalin.
Hahne discloses a composition which may be used to coat seeds [0043] and enhance plant growth [0048]. Hahne discloses the composition may comprise flavones such as baicalein [0105].
Norsworthy relates to herbicidal compositions [abstract] and discloses that baicalin is a metabolic inhibitor [0006].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
In the present case, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected baicalin as the flavone desired by Habib because Hahne discloses baicalin is a suitable flavone for plant growth regulating compositions. One would have been motivated to select baicalin for the herbicidal metabolic inhibition disclosed by Norsworthy, and desired by Habib.
Additionally, it would have been obvious to provide each component (i.e., baicalin, chitosan and glutathione) in amounts suitable for improving plant growth because Habib desires a composition for enhancing plant growth.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have formulated a flowable liquid composition comprising baicalin, chitosan, glutathione and a cellulose-based polymer in amounts suitable to improve plant growth. Since the prior art composition contains substantially the same components, i.e., baicalin, chitosan glutathione and cellulose, it would be expected to inherently possess the same chemical and physical properties, such as promoting plant growth in the presence of pests such as nematodes, fungi or rootworms (i.e., instant claim 5).
Regarding instant claims 6, 8-14 and 16-20, Habib discloses “seeds coated with the [described] seed treatment compositions” [abstract]. Habib also discloses the composition may be applied to corn (i.e., non-legume; instant claims 11, 13, 18 and 19) and soybean (i.e., legume; instant claims 11, 12, 18 and 19) plants and plant parts [0131].
Corn is a monocot and soybean is a dicot, as evidenced by Helmenstine at the table on page three.
Given the disclosure of each component individually, it would have been prima facie obvious for a person following the teachings of Habib and having ordinary skill in the art, at the time of filling, to have provided a coated seed by selecting and combining the known components for their established functions with predictable results. MPEP 2143 and 2144.06(I).
Similarly, it would have been obvious to one of ordinary skill in the art, at the time of filling, to have treated a seed by coating it with the composition taught by Habib, Hahne and Norsworthy because Habib discloses coating a seed. MPEP 2143 and 2144.07.
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to treat a seed by coating it and provided the coating seed in the composition taught by Habib, Hahne and Norsworthy, which comprises baicalin, chitosan, glutathione and a cellulose-based polymer, wherein the seed is a monocot, dicot, corn, soybean, legume or non-legume. Because the prior art contains substantially the same components as instantly claimed, it would have been expected to possess the same properties and be capable of satisfying the same applications, i.e. promote plant growth in the presence of pests such as nematodes, fungi or rootworm.
2) Claims 2, 7 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Habib et al. (US 2014/0121100 A1, publication date 05/01/2014), Hahne et al. (WO 2018/175677 A1, publication date 09/27/2018) and Norsworthy et al. (US 2021/0145005 A1, publication date 05/20/2021; cited in IDS 02/15/2024), as evidenced by Helmenstine (Science Notes, 2022 [retrieved 09/10/2025], https://sciencenotes.org/monocot-vs-dicot-how-to-tell-the-difference/) as applied to claims 1, 3-6, 8-14 and 16-20 above, and further in view of CN ‘773 (CN 110896773 A, publication date 03/24/2020; citing English machine translation) and Chengdu New Chaoyang Crop Science Co ltd (CN 113133455 A, publication date 07/20/2021; citing English machine translation; hereinafter “Chengdu”).
Habib, Hahne and Norsworthy, which are taught above, differ from the instant claims insofar as they do not teach the instantly claimed percent ranges of baicalin and chitosan. Habib does disclose that in making the composition “one or more glutathiones are added to the water carrier at a concentration of 100.0-500.0 mg/L” [0049]. In the examples, the water carrier is distilled water [0171]. One of ordinary skill in the art would have understood a concentration of 100-500mg/L with distilled water was the solvent would be about 0.01%-0.05% w/w.
CN ‘773 relates to a disease and pest control method which includes applying a composition comprising a flavone [abstract]. CN ‘773 discloses the flavone is present in amounts from 0.02% to 0.05% [p. 5, para. 2].
CN ‘773 does not disclose an amount of chitosan.
Chengdu discloses a composition for promoting plant growth [abstract] comprising chitosan at a concentration of 0.01-0.15 % [p. 5, para. 9].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the glutathione at 0.01%-0.05%, the flavone (i.e., baicalin) at 0.02%-0.05%, and chitosan at 0.01%-0.15% because Habib, CN ‘773 and Chengdu, respectively, disclose those are suitable ranges for each component in growth regulating compositions.
In making this selection the ranges of the prior art overlap with the instantly claimed ranges and a prima facie case of obviousness exists for each. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to formulated a composition, a seed coating and a composition for the method of treating seeds to comprise baicalin, chitosan and glutathione in the instantly claimed amounts.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
1) Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of U.S. Patent No. US 11,560,340 B2 in view of Habib et al. (US 2014/0121100 A1, publication date 05/01/2014), Hahne et al. (WO 2018/175677 A1, publication date 09/27/2018) and Norsworthy et al. (US 2021/0145005 A1, publication date 05/20/2021; cited in IDS 02/15/2024), CN ‘773 (CN 110896773 A, publication date 03/24/2020; citing English machine translation) and Chengdu New Chaoyang Crop Science Co ltd (CN 113133455 A, publication date 07/20/2021; citing English machine translation; hereinafter “Chengdu”).
The claims of ‘340 disclose a treated seed comprising a plant seed that is at least partially coated with a seed treatment composition, wherein said seed treatment composition comprises chitosans, flavonoids and herbicides [claim 1]. The composition may be applied to leguminous seeds, soybean seeds (i.e., dicot), non-leguminous seeds and cereal seeds (i.e., monocot) [claims 14-17].
The claims of ’340 do not disclose glutathione, cellulose-based polymer, a specific flavonoid and the amounts of each component.
Habib discloses “seed treatment compositions comprising one or more glutathiones for enhancing plant growth and methods thereof” (emphasis added) [abstract]. Habib further discloses that glutathione is involved with plant pathogen resistance [0004]. Finally, Habib discloses the composition may further comprise cellulose [0099].
Hahne discloses a composition which may be used to coat seeds [0043] and enhance plant growth [0048]. Hahne discloses the composition may comprise flavonoids such as baicalein [0105].
Norsworthy relates to herbicidal compositions [abstract] and discloses that baicalin is a metabolic inhibitor [0006].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
In the present case it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected baicalin as the flavonoid desired by the claims of ‘340 because Hahne discloses it as a suitable flavonoid in plant growth regulating compositions. One would have been motivated to select baicalin for the herbicidal metabolic inhibition disclosed by Norsworthy and desired by the claims of ‘340.
It also would have been obvious to one of ordinary skill in the art, at the time of filling, to have to have combined the glutathione and cellulose of Habib with the composition disclosed in the claims of ‘340 for the benefits disclosed by Habib. One would have had an expectation of success because Habib and the claims of ‘340 both relate to a growth affecting composition to treat plant seeds. See MPEP 2143, Exemplary Rationale A.
The claims of ‘340 and Habib do not disclose amounts of all the components.
Habib discloses that in making the composition “one or more glutathiones are added to the water carrier at a concentration of 100.0-500.0 mg/L” [0049]. In the examples, the water carrier is distilled water [0171]. One of ordinary skill in the art would have understood a concentration of 100-500mg/L with distilled water was the solvent would be about 0.01%-0.05% w/w.
CN ‘773 relates to a disease and pest control method which includes applying a composition comprising a flavonoid [abstract]. CN ‘773 discloses the flavonoid is present in amounts from 0.02% to 0.05% [p. 5, para. 2].
CN ‘773 does not disclose an amount of chitosan.
Chengdu discloses a composition for promoting plant growth [abstract] comprising chitosan at a concentration of 0.01-0.15 % [p. 5, para. 9].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the glutathione at 0.01%-0.05%, the flavonoid (i.e., baicalin) at 0.02%-0.05% and chitosan at 0.01%-0.15% because Habib, CN ‘773 and Chengdu respectively disclose those as suitable ranges for growth regulating compositions.
In making this selection the ranges of the prior art overlap with the instantly claimed ranges and a prima facie case of obviousness exists for each. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to formulated a composition, a seed coating and a composition for the method of treating seeds to comprise baicalin, chitosan and glutathione in the instantly claimed amounts.
2) Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. US 10,206,396 B2 in view of Habib et al. (US 2014/0121100 A1, publication date 05/01/2014), Hahne et al. (WO 2018/175677 A1, publication date 09/27/2018) and Norsworthy et al. (US 2021/0145005 A1, publication date 05/20/2021; cited in IDS 02/15/2024), CN ‘773 (CN 110896773 A, publication date 03/24/2020; citing English machine translation) and Chengdu New Chaoyang Crop Science Co ltd (CN 113133455 A, publication date 07/20/2021; citing English machine translation; hereinafter “Chengdu”).
The claims of ‘396 disclose a composition comprising chitosan [claim 12], a flavonoid [claim 13] and an herbicide [claim 14] in amounts effective to enhance the growth and/or yield of plants grown from said seed [claim 17]. The claims of ‘396 disclose the composition may be applied to seeds [claim 18].
The claims of ‘396 do not disclose glutathione, cellulose-based polymer, a specific flavonoid and the amounts of each component.
Habib discloses “seed treatment compositions comprising one or more glutathiones for enhancing plant growth and methods thereof” (emphasis added) [abstract]. Habib further discloses that glutathione is involved with plant pathogen resistance [0004]. Finally, Habib discloses the composition may further comprise cellulose [0099].
Hahne discloses a composition which may be used to coat seeds [0043] and enhance plant growth [0048]. Hahne discloses the composition may comprise flavonoids such as baicalein [0105].
Norsworthy relates to herbicidal compositions [abstract] and discloses that baicalin is a metabolic inhibitor [0006].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
In the present case it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected baicalin as the flavonoid desired by the claims of ‘396 because Hahne discloses it as a suitable flavonoid in plant growth regulating compositions. One would have been motivated to select baicalin for the herbicidal metabolic inhibition disclosed by Norsworthy and desired by the claims of ‘396.
It also would have been obvious to one of ordinary skill in the art, at the time of filling, to have to have combined the glutathione and cellulose of Habib with the composition disclosed in the claims of ‘396 for the benefits disclosed by Habib. One would have had an expectation of success because Habib and the claims of ‘396 both relate to a growth affecting composition to treat plant seeds. See MPEP 2143, Exemplary Rationale A.
The claims of ‘396 and Habib do not disclose amounts of all the components.
Habib discloses that in making the composition “one or more glutathiones are added to the water carrier at a concentration of 100.0-500.0 mg/L” [0049]. In the examples, the water carrier is distilled water [0171]. One of ordinary skill in the art would have understood a concentration of 100-500mg/L with distilled water was the solvent would be about 0.01%-0.05% w/w.
CN ‘773 relates to a disease and pest control method which includes applying a composition comprising a flavonoid [abstract]. CN ‘773 discloses the flavonoid is present in amounts from 0.02% to 0.05% [p. 5, para. 2].
CN ‘773 does not disclose an amount of chitosan.
Chengdu discloses a composition for promoting plant growth [abstract] comprising chitosan at a concentration of 0.01-0.15 % [p. 5, para. 9].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the glutathione at 0.01%-0.05%, the flavonoid (i.e., baicalin) at 0.02%-0.05% and chitosan at 0.01%-0.15% because Habib, CN ‘773 and Chengdu respectively disclose those as suitable ranges for growth regulating compositions.
In making this selection the ranges of the prior art overlap with the instantly claimed ranges and a prima facie case of obviousness exists for each. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to formulated a composition, a seed coating and a composition for the method of treating seeds to comprise baicalin, chitosan and glutathione in the instantly claimed amounts.
3) Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-28 of U.S. Patent No. US 9,414,591 B2 in view of Habib et al. (US 2014/0121100 A1, publication date 05/01/2014), Hahne et al. (WO 2018/175677 A1, publication date 09/27/2018) and Norsworthy et al. (US 2021/0145005 A1, publication date 05/20/2021; cited in IDS 02/15/2024), CN ‘773 (CN 110896773 A, publication date 03/24/2020; citing English machine translation) and Chengdu New Chaoyang Crop Science Co ltd (CN 113133455 A, publication date 07/20/2021; citing English machine translation; hereinafter “Chengdu”).
The claims of ‘591 disclose a method of enhancing corn plant growth, comprising treating a corn seed and/or a corn plant that germinates from the corn seed with an effective amount of at least one chitooligosaccharide (CO) [claim 1]. The claims of ‘591 further disclose the composition may comprise flavonoids [claim 22] and herbicides [claim 23].
The claims of ‘591 do not disclose glutathione, cellulose-based polymer, a specific flavonoid and the amounts of each component.
Habib discloses “seed treatment compositions comprising one or more glutathiones for enhancing plant growth and methods thereof” (emphasis added) [abstract]. Habib further discloses that glutathione is involved with plant pathogen resistance [0004]. Finally, Habib discloses the composition may further comprise cellulose [0099] and suitable chitooligosaccharides include chitosan [0068].
Hahne discloses a composition which may be used to coat seeds [0043] and enhance plant growth [0048]. Hahne discloses the composition may comprise flavonoids such as baicalein [0105].
Norsworthy relates to herbicidal compositions [abstract] and discloses that baicalin is a metabolic inhibitor [0006].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
In the present case it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected baicalin and chitosan as the flavonoid and chitooligosaccharide desired by the claims of ‘591 because Hahne discloses it as a suitable flavonoid in plant growth regulating compositions. One would have been motivated to select baicalin for the herbicidal metabolic inhibition disclosed by Norsworthy and desired by the claims of ‘591.
It also would have been obvious to one of ordinary skill in the art, at the time of filling, to have to have combined the glutathione and cellulose of Habib with the composition disclosed in the claims of ‘591 for the benefits disclosed by Habib. One would have had an expectation of success because Habib and the claims of ‘591 both relate to a growth affecting composition to treat plant seeds. See MPEP 2143, Exemplary Rationale A.
The claims of ‘591 and Habib do not disclose the amounts of all the components.
Habib discloses that in making the composition “one or more glutathiones are added to the water carrier at a concentration of 100.0-500.0 mg/L” [0049]. In the examples, the water carrier is distilled water [0171]. One of ordinary skill in the art would have understood a concentration of 100-500mg/L with distilled water was the solvent would be about 0.01%-0.05% w/w.
CN ‘773 relates to a disease and pest control method which includes applying a composition comprising a flavonoid [abstract]. CN ‘773 discloses the flavonoid is present in amounts from 0.02% to 0.05% [p. 5, para. 2].
CN ‘773 does not disclose an amount of chitosan.
Chengdu discloses a composition for promoting plant growth [abstract] comprising chitosan at a concentration of 0.01-0.15 % [p. 5, para. 9].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the glutathione at 0.01%-0.05%, the flavonoid (i.e., baicalin) at 0.02%-0.05% and chitosan at 0.01%-0.15% because Habib, CN ‘773 and Chengdu respectively disclose those as suitable ranges for growth regulating compositions.
In making this selection the ranges of the prior art overlap with the instantly claimed ranges and a prima facie case of obviousness exists for each. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to formulated a composition, a seed coating and a composition for the method of treating seeds to comprise baicalin, chitosan and glutathione in the instantly claimed amounts.
4) Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-33 of U.S. Patent No. US 8,946,119 B2 in view of Habib et al. (US 2014/0121100 A1, publication date 05/01/2014), Hahne et al. (WO 2018/175677 A1, publication date 09/27/2018) and Norsworthy et al. (US 2021/0145005 A1, publication date 05/20/2021; cited in IDS 02/15/2024), CN ‘773 (CN 110896773 A, publication date 03/24/2020; citing English machine translation) and Chengdu New Chaoyang Crop Science Co ltd (CN 113133455 A, publication date 07/20/2021; citing English machine translation; hereinafter “Chengdu”).
The claims of ‘119 disclose a method of enhancing corn plant growth, comprising treating a corn seed and/or a corn plant that germinates from the corn seed with an effective amount of at least one chitoogilosaccharide (CO) [claim 1]. The claims of ‘119 further disclose the composition may comprise flavonoids [claim 27] and herbicides [claim 28].
The claims of ‘119 do not disclose glutathione, cellulose-based polymer, a specific flavonoid and the amounts of each component.
Habib discloses “seed treatment compositions comprising one or more glutathiones for enhancing plant growth and methods thereof” (emphasis added) [abstract]. Habib further discloses that glutathione is involved with plant pathogen resistance [0004]. Finally, Habib discloses the composition may further comprise cellulose [0099] and suitable chitooligosaccharides include chitosan [0068].
Hahne discloses a composition which may be used to coat seeds [0043] and enhance plant growth [0048]. Hahne discloses the composition may comprise flavonoids such as baicalein [0105].
Norsworthy relates to herbicidal compositions [abstract] and discloses that baicalin is a metabolic inhibitor [0006].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
In the present case it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected baicalin and chitosan as the flavonoid and chitooligosaccharide desired by the claims of ‘119 because Hahne discloses it as a suitable flavonoid in plant growth regulating compositions. One would have been motivated to select baicalin for the herbicidal metabolic inhibition disclosed by Norsworthy and desired by the claims of ‘119.
It also would have been obvious to one of ordinary skill in the art, at the time of filling, to have to have combined the glutathione and cellulose of Habib with the composition disclosed in the claims of ‘119 for the benefits disclosed by Habib. One would have had an expectation of success because Habib and the claims of ‘119 both relate to a growth affecting composition to treat plant seeds. See MPEP 2143, Exemplary Rationale A.
The claims of ‘119 and Habib do not disclose the amounts of the specific components.
Habib discloses that in making the composition “one or more glutathiones are added to the water carrier at a concentration of 100.0-500.0 mg/L” [0049]. In the examples, the water carrier is distilled water [0171]. One of ordinary skill in the art would have understood a concentration of 100-500mg/L with distilled water was the solvent would be about 0.01%-0.05% w/w.
CN ‘773 relates to a disease and pest control method which includes applying a composition comprising a flavonoid [abstract]. CN ‘773 discloses the flavonoid is present in amounts from 0.02% to 0.05% [p. 5, para. 2].
CN ‘773 does not disclose an amount of chitosan.
Chengdu discloses a composition for promoting plant growth [abstract] comprising chitosan at a concentration of 0.01-0.15 % [p. 5, para. 9].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the glutathione at 0.01%-0.05%, the flavonoid (i.e., baicalin) at 0.02%-0.05% and chitosan at 0.01%-0.15% because Habib, CN ‘773 and Chengdu respectively disclose those as suitable ranges for growth regulating compositions.
In making this selection the ranges of the prior art overlap with the instantly claimed ranges and a prima facie case of obviousness exists for each. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to formulated a composition, a seed coating and a composition for the method of treating seeds to comprise baicalin, chitosan and glutathione in the instantly claimed amounts.
5) Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-35 of U.S. Patent No. US 9,055,747 B2 in view of Habib et al. (US 2014/0121100 A1, publication date 05/01/2014), Hahne et al. (WO 2018/175677 A1, publication date 09/27/2018) and Norsworthy et al. (US 2021/0145005 A1, publication date 05/20/2021; cited in IDS 02/15/2024), CN ‘773 (CN 110896773 A, publication date 03/24/2020; citing English machine translation) and Chengdu New Chaoyang Crop Science Co ltd (CN 113133455 A, publication date 07/20/2021; citing English machine translation; hereinafter “Chengdu”).
The claims of ‘747 disclose a method of enhancing corn plant growth, comprising treating a corn seed and/or a corn plant that germinates from the corn seed with an effective amount of at least one chitoogilosaccharide (CO) [claim 1]. The claims of ‘119 further disclose the composition may comprise flavonoids [claim 29] and herbicides [claim 30].
The claims of ‘747 do not disclose glutathione, cellulose-based polymer, a specific flavonoid and the amounts of each component.
Habib discloses “seed treatment compositions comprising one or more glutathiones for enhancing plant growth and methods thereof” (emphasis added) [abstract]. Habib further discloses that glutathione is involved with plant pathogen resistance [0004]. Finally, Habib discloses the composition may further comprise cellulose [0099] and suitable chitooligosaccharides include chitosan [0068].
Hahne discloses a composition which may be used to coat seeds [0043] and enhance plant growth [0048]. Hahne discloses the composition may comprise flavonoids such as baicalein [0105].
Norsworthy relates to herbicidal compositions [abstract] and discloses that baicalin is a metabolic inhibitor [0006].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
In the present case it would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected baicalin and chitosan as the flavonoid and chitooligosaccharide desired by the claims of ‘747 because Hahne discloses it as a suitable flavonoid in plant growth regulating compositions. One would have been motivated to select baicalin for the herbicidal metabolic inhibition disclosed by Norsworthy and desired by the claims of ‘747.
It also would have been obvious to one of ordinary skill in the art, at the time of filling, to have to have combined the glutathione and cellulose of Habib with the composition disclosed in the claims of ‘747 for the benefits disclosed by Habib. One would have had an expectation of success because Habib and the claims of ‘747 both relate to a growth affecting composition to treat plant seeds. See MPEP 2143, Exemplary Rationale A.
The claims of ‘119 and Habib do not disclose the amounts of all the components.
Habib discloses that in making the composition “one or more glutathiones are added to the water carrier at a concentration of 100.0-500.0 mg/L” [0049]. In the examples, the water carrier is distilled water [0171]. One of ordinary skill in the art would have understood a concentration of 100-500mg/L with distilled water was the solvent would be about 0.01%-0.05% w/w.
CN ‘773 relates to a disease and pest control method which includes applying a composition comprising a flavonoid [abstract]. CN ‘773 discloses the flavonoid is present in amounts from 0.02% to 0.05% [p. 5, para. 2].
CN ‘773 does not disclose an amount of chitosan.
Chengdu discloses a composition for promoting plant growth [abstract] comprising chitosan at a concentration of 0.01-0.15 % [p. 5, para. 9].
Generally, it is prima facie obvious to select a known material based on its suitability for its intended use. See MPEP 2144.07.
It would have been obvious to one of ordinary skill in the art, at the time of filling, to have selected the glutathione at 0.01%-0.05%, the flavonoid (i.e., baicalin) at 0.02%-0.05% and chitosan at 0.01%-0.15% because Habib, CN ‘773 and Chengdu respectively disclose those as suitable ranges for growth regulating compositions.
In making this selection the ranges of the prior art overlap with the instantly claimed ranges and a prima facie case of obviousness exists for each. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Therefore, it would have been obvious to one of ordinary skill in the art, at the time of filling, to formulated a composition, a seed coating and a composition for the method of treating seeds to comprise baicalin, chitosan and glutathione in the instantly claimed amounts.
Conclusion
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/C.T.W./Examiner, Art Unit 1612
/WALTER E WEBB/Primary Examiner, Art Unit 1612