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 .
Status of Claims
A new claim set was filed on 7/14/26 with the following:
Amended claims
1, 9
Newly canceled claims
8
Newly added claims
21
Previously canceled claims
Previously withdrawn claims
7, 15-20
Claims under instant examination
1-6, 9-14, 21
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 7/14/26 has been entered.
Withdrawn Claim Rejections
All rejections pertaining to claim 8 are moot because the claim was cancelled in view of the amendments filed on 7/14/26.
The rejections of:
claims 1-5 under 35 U.S.C. 102(a)(1) as being anticipated by Escobedo (US 2018/0192652; published: 7/12/18; of record);
claims 1-5, 9-10 and 12-14 under 35 U.S.C. 103 as being unpatentable over Escobedo (US 2018/0192652; published: 7/12/18; of record), in view of Barnett (Planting in Furrows: Are There Benefits to Furrow Gardening; published online: 12/30/22; of record); and
claims 11 under 35 U.S.C. 103 as being unpatentable over Escobedo (US 2018/0192652; published: 7/12/18; of record) and Barnett (Planting in Furrows: Are There Benefits to Furrow Gardening; published online: 12/30/22; of record) as applied to claim1-5, 9-10 and 12-14 above, and further in view of Morkunas et al. Acta Physiologiae Plantarum, 2014, 36, 1607-0619; published: 5-18-14; of record)
are hereby withdrawn in response to the Applicants amendments/arguments filed on 7/14/26.
Maintained Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 17/175,893; 15/824,367 and 62/426,760, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. Instant independent claim 1 requires “treating an agricultural product” by “positioning the agricultural product [(e.g., seed)] next to or on an exterior surface of an article” and “storing the agricultural product next to or on the exterior surface of the article for at least one day such that the antimicrobial material reduces pathogens in the agricultural product”. Therefore, since all remaining, elected claims are dependent on claim 1, the US effective date for claims 1-6 and 9-14 is 8/2/23.
New Claim Rejections - 35 USC § 103
Applicant' s claim amendments have necessitated the following new grounds of rejection.
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 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 1-3 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Dudding et al. (US 9,675,079; published: 6/13/17; US effective filing date: 6/16/16; in IDS dated 8/2/23).
Examiner’s Note: this is 102(a)(1) prior art reference in view of the priority statement above.
Determination of the Scope and Content of the Prior Art
(MPEP §2141.01)
Dudding is directed to a pathogen eliminating article [Title].
With regards to instant claim 1, Dudding teaches an antimicrobial article comprising a first surface, an opposing second surface and an antimicrobial core formed from an antimicrobial alloy comprising at least 50% molybdenum such that the antimicrobial alloy is configured to eliminate pathogens located proximate the first and second surfaces [Abstract]. Dudding teaches that inactive components (i.e., the claimed shielding material that does not contain antimicrobial material) may be used to encase molybdenum core; using additive manufacturing technology, such surrounds the core [col. 4, lines 28-32]. Dudding teaches that the abovementioned antimicrobial article facilitates efficient methods of disinfecting a surface; and furthermore, teach that in embodiments where the antimicrobial core is not exposed, the electromagnetic energy produced by the antimicrobial core eliminates potentially harmful bacterium and pathogens within a known distance of the antimicrobial core due to the “impact zone effect” [col. 5, lines 43-47]. Dudding teaches that using the “impact zone effect”, the antimicrobial article disinfects the environment immediately surrounding the antimicrobial article without contacting the pathogen located thereon and within a relatively short period of time [col. 2, lines 11-15]. Dudding teaches the “impact zone effect” antimicrobial property of antimicrobial core emits electromagnetic energy that penetrates protective coating and disinfects an exposed surface thereof without directly contacting the pathogen located on exposed surface within a time period of approximately 2-3 hours at a microbe contamination level of approximately 103 colony-forming units per square centimeter. With regards to the active method steps of instant claim 1, Dudding teaches that food items (i.e., a type of agricultural product) is stored in the container (i.e., positioned on an exterior surface of the article), wherein the container comprises the abovementioned antimicrobial article; more specifically, food items with a relatively short shelf life, such as fruits, may be stored in the container in an edible state for a much longer period of time before consumption [col. 4, line 65 to col. 5, line 4].
With regards to instant claim 5, Dudding teaches wherein the container defines a cavity [see Fig. 3].
Ascertainment of the Difference Between the Scope of the Prior Art and Claims
(MPEP §2141.012)
Although Dudding teaches that the agricultural product (e.g., food item; fruit) is stored in a container comprising the antimicrobial article, Dudding does not teaches that such storing step is for at least one day or at least one month or at least three months, as required by instant claims 1-3, respectively.
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
The amount of time the agricultural product is stored in the antimicrobial article is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal storage time in order to best achieve the desired results as such would provide advantageous biological effect. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Dudding teaches that using the “impact zone effect”, the antimicrobial article disinfects the environment immediately surrounding the antimicrobial article without contacting the pathogen located thereon and within a relatively short period of time [col. 2, lines 11-15]. In the instant case, one of ordinary skill in the art would have recognized that the storage time would impact the antimicrobial effect of the agricultural product placed near or on the antimicrobial article and therefore be an optimizable variable.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the invention was effectively filed, as evidenced by the references, especially in the absence of evidence to the contrary.
Thus, the claimed invention was prima facie obvious before the effective filing date of the claimed invention.
Allowable Subject Matter
Claims 4, 6 and 9-14 are free of the prior art. Claims 9-14 are in condition for allowance.
Claims 4 and 6 are objected to as being dependent upon a rejected base claim (i.e., claim 1), but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicants’ arguments are moot in view of the new grounds of rejection.
Conclusion
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 GENEVIEVE S ALLEY whose telephone number is (571)270-1111. The examiner can normally be reached on Monday-Friday 8:00-5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Blanchard can be reached on 571-272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GENEVIEVE S ALLEY/Primary Examiner, Art Unit 1617
