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 .
Applicant’s arguments, filed 06/11/2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Status
Claims 1-12 and 23-32 are pending.
Claim Interpretation
The examiner best understands the limitation as recited in claim 1 of a core comprising a “first germination rate,” as being the germination rate of an uncoated seed, and wherein the coated seed has a “second germination rate,” as being the germination rate of the coated seed. Likewise, the germination rates as recited in claims 7-12 are interpreted as the coated seed (second germination rate) compared to an uncoated seed (first germination rate) (i.e., a control uncoated seed).
The examiner best understands the limitation of wherein the “second germination rate is… better than the first germination rate,” as used in claim 7, to mean wherein the second germination rate has an increased percentage of germinated seeds as compared to the first germination rate.
Claim Rejections - 35 USC § 112(a) or pre-AIA 1st ¶
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-12 and 23-32 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
As recited in the instant claims, Applicants appear to be attempting to define the polyurethane coated seeds by what the coating does upon the intended use of being planted in soil, rather than the components, amounts, etc. that make up the coating itself. As evidenced by Langan et al (US 4493162 A, hereinafter “Langan”), the period of delay from implantation to the rupture of the coating from the germination of the seed can largely depend on factors outside of the coating itself, such as soil temperature, soil type, moisture, time of year, oxygen conditions, light exposure, timing of implantation, etc. (col 1 ln 16-36). Therefore, it is difficult, if not impossible, to determine what polyurethane seed coatings in the prior art would meet the limitations of the instant claims, where the conditions upon which the rupture rate are determined are not claimed. For example, if the coated seeds are implanted when conditions are already suitable for seed germination, less delay would be expected. Likewise, if planted well in advance from optimal seed germination conditions, the time between implanting the coated seed and the subsequent rupture of the coating due to seed germination would be expected to be longer. Without specified conditions, the specific polyurethanes, etc., it is difficult to determine what coatings in the prior art meet the instant claims without undue experimentation.
In addition, the first and second germination rates would also be expected to vary significantly depending on the conditions above. For example, under extremely cold conditions, if a coated seed is implanted and survives due to the protective coating, and nearly all uncoated seeds were to die, the differences in germination rates would be much different than if both were planted under conditions that were ideal for germination. Accordingly, it is difficult to determine what uncoated and coated seeds in the prior art would meet the claimed limitations, without undue experimentation, where the specified conditions, components, etc., are not disclosed.
Regarding the new claims directed to dormancy rate, the first and second dormancy rates would also be expected to vary significantly depending on the conditions above. For example, under extremely cold conditions, if a coated seed is implanted and survives due to the protective coating, and nearly all uncoated seeds were to die, the differences in viable dormant seeds rates would be much different than if both were planted under conditions where the uncoated seeds which are dormant do not die. Further, the instant specification does not provide any data, conditions for which “dormancy rate” is determined, or how a “dormancy rate” is calculated/determined. Accordingly, it is difficult to determine what uncoated and coated seeds in the prior art would meet the claimed limitations, without undue experimentation, where the specified conditions, components, etc., are not disclosed, and are expected to vary significantly.
The instant specification, claims, nor the drawing, provide any indication for the conditions from which the rupture rates, germination rates, and dormancy rates as instantly claimed, are to be determined. For purposes of examination, the examiner is interpreting any polyurethane coated seed having a delayed germination, are dormant, wherein the coating can be ruptured, and is capable of being planted, to read on the instant claims.
Response to Arguments
Applicants assert that holding all things equal, including growing season, conditions, etc., the coated seed’s germination rate is about the same or better than the uncoated seed. Applicants assert the instant specification discloses the rupture rates in paragraph 91 and provides an example where coated and uncoated soybean seeds were sown and germination/plant emergence was observed during the first few weeks of the spring growing season which was about 150-160 days after planting.
Respectfully, this argument is not persuasive. While the examiner recognizes the instant specification recites various rupture rates, and provides an example, the example merely discloses the seeds were sown in the late fall before the normal spring growing season in Northern Kentucky in 2021-2022, where germination/plant emergence was observed in the first few weeks of the spring growing season, which was about 150-160 days after planting. This example, while disclosing the general season for which the seeds were sown in Northern Kentucky in 2021, the conditions for which the seeds were tested, is unknown. For example, the example does not disclose the temperature, soil conditions, soil type, weather conditions, if seeds experienced drought, excess water, light exposure, etc., which appear to be uncontrolled. Without controlled conditions, the skilled artisan would not reasonably be able to determine what uncoated and coated seeds in the prior art would meet the claimed limitations, without undue experimentation, where the specified conditions, components, etc., are not disclosed. As evidenced by Langan above, the period of delay from implantation to the rupture of the coating from the germination of the seed can largely depend on factors outside of the coating itself, such as soil temperature, soil type, moisture, time of year, oxygen conditions, light exposure, timing of implantation, etc. (col 1 ln 16-36). Accordingly, without known and controlled conditions, it is difficult if not impossible to determine what uncoated and coated seeds in the prior art would meet the claimed limitations, without undue experimentation.
Claim Rejections - 35 USC § 112(b) or pre-AIA 2nd ¶
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.
Claims 25, 26, and 29-32 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 (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 25 recites “wherein the second germination rate is at least about 70 percent” and it is unclear what the second germination rate is at least about 70 percent of. For example, is the second germination rate at least about 70 percent of the first germination rate or something else? For purposes of examination, the examiner best understands the limitation to be at least about 70 percent of the first germination rate.
Claim 26 recites “wherein the second germination rate is at least about 80 percent” and it is unclear what the second germination rate is at least about 80 percent of. For example, is the second germination rate at least about 80 percent of the first germination rate or something else? For purposes of examination, the examiner best understands the limitation to be at least about 80 percent of the first germination rate.
Claims 29-32 recite the new limitation of “dormancy rate,” and it is unclear what a “dormancy rate” is where the instant specification does not define a “dormancy rate” other than that the dormancy of the seed is increased by at least about 70 percent compared to the uncoated seed. It is not clear how dormancy rate is to be calculated. For example, is the dormancy rate the number of dormant seeds at the time of germination compared to uncoated dead seeds, compared to seeds that germinated early, or at a different point in time? Is dormancy rate based on a time measurement? When and how is the dormancy of coated and uncoated seeds compared, and under what conditions? As best understood by the examiner, and for purposes of examination, the limitation is interpreted as the percentage of coated seeds that germinate compared to the percentage of uncoated seeds that do not germinate, suggesting that the seeds that go on to germinate were viable and dormant prior to germinating. Further, the rate is interpreted based on a population of seeds, rather than a single coated seed vs. a single uncoated seed.
Claim Rejections - 35 USC § 112(d) or pre-AIA 4th ¶
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 25-28 and 32, 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.
Claim 25 recites “wherein the second germination rate is at least about 70 percent,” and as best understood by the examiner the limitation is interpreted as at least about 70 percent of the first germination rate, however, claim 23 recites that the second germination rate is about 97 percent to about 110 percent of the first germination rate. Accordingly, claim 25 fails to further limit claim 23, where at least about 70 percent includes amounts above and below about 97 percent to about 110 percent as recited by claim 23.
Claim 26 recites “wherein the second germination rate is at least about 80 percent,” and as best understood by the examiner the limitation is interpreted as at least about 80 percent of the first germination rate, however, claim 23 recites that the second germination rate is about 97 percent to about 110 percent of the first germination rate. Accordingly, claim 26 fails to further limit claim 23, where at least about 80 percent includes amounts above and below about 97 percent to about 110 percent as recited by claim 23.
Claim 27 recites “wherein the rupture rate is at least about 90 days after being planted in soil,” which fails to limit claim 23 which recites a rupture rate of about 20 days to about 180 days after being implanted in soil, and at least about 90 days includes amounts above about 180 days. For purposes of examination, as best understood by the examiner the limitation is interpreted to be about 90 to 180 days.
Claim 28 recites “wherein the rupture rate is at least about 120 days after being planted in soil,” which fails to limit claim 23 which recites a rupture rate of about 20 days to about 180 days after being implanted in soil, and at least about 120 days includes amounts above about 180 days. For purposes of examination, as best understood by the examiner the limitation is interpreted to be about 120 to 180 days.
Claim 32 recites “wherein the rupture rate is at least about 90 days after being planted in soil,” which fails to limit claim 29 which recites a rupture rate of about 20 days to 210 days after being implanted in soil, and at least about 90 days includes amounts above 210 days. For purposes of examination, as best understood by the examiner the limitation is interpreted to be about 90 to 210 days.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, 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.
Claims 1-12 and 23-32, are rejected under 35 U.S.C. 103 as being unpatentable over Sakamoto et al (JP 2017035043 A, hereinafter “Sakamoto”), in view of Buerger et al (DE 4414724 A1, hereinafter “Buerger”) and Langan et al (US 4493162 A, hereinafter “Langan”).
Sakamoto discloses coated seeds that maintain seed viability while suppressing germination until the appropriate time when the sowing time is optimal (¶ 1). In one embodiment, a seed is coated with a polyurethane coating at 10 wt% based on the weight of the seeds (table 2, example 16). The seeds were sown on October 1, 2013, where a 10% germination rate was achieved on April 10, 2014 (i.e., 191 days after sowing), and 50% germination rate was achieved on May 3, 2014 (i.e., 214 days after sowing) (table 3, example 16, ¶ 54). The sprouts and roots that germinate from the seeds break through the coating (¶ 28). The coatings are effective in improving the survival rate from sowing to germination by protecting the seeds from environmental factors that reduce survival (such as sub-freezing temperatures), thereby reducing the number of seeds that die during the germination period, and subsequently improving the degree of germination (¶¶ 12-14). The higher survival rates are indicated by a higher germination rate compared to control (i.e., uncoated seed) (¶ 14). The coatings are in the range of 2-20 wt% relative to the seeds (¶ 13). A survivability test was conducted in soil, and the germination rate of uncoated and coated seeds are shown in table 4 below to confirm seed survivability (Table 4). The coated seed of Example 16 had excellent survival (Manufacture of coated seed X).
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While teaching delayed germination of polyurethane coated seeds, Sakamoto does not appear to specifically teach a polyurethane coated embodiment wherein a seed has a rupture rate as claimed.
Buerger teaches polyurethane based seed coatings were known and were capable of delayed seed germination (abs, ¶¶ 13, 34). The polyurethane coating of the seeds had delayed germination with increasing shell thickness (¶ 34).
Additional motivation for adjusting the rupture rate is provided by Langan, where Langan teaches synthetic resin seed coatings for delayed germination where seed coating thickness was known to be variable and can be adjusted upon the extent of the germination delay desired and local conditions; and those skilled in the art will appreciate that the thickness of the coating, taken with the nature of the coating material and the amount and type of filler, are factors to be considered in designing a coating for particular germination delay (col 2 ln 65 to col 3 ln 4). The coated seeds were known to have a rupture delay after from about 30 to 180 days from the time of planting, although greater or lesser time delays are possible (col 3 ln 43-54). The timing of germination depends in large measure on prevailing weather conditions in an indented region of use, and also the thickness of the synthetic resin coating (col 3 ln 51-54). Langan further teaches it is difficult if not impossible to specify beforehand the needed germination delay in terms of days or weeks; this is because the period of delay from implantation to the rupture of the coating from the germination of the seed can largely depend on factors outside of the coating itself, such as soil temperature, soil type, moisture, time of year, oxygen conditions, light exposure, timing of implantation, etc. (col 1 ln 16-36).
Regarding the coated seed claim 1, Sakamoto discloses a coated seed comprising a seed and a polyurethane coating, thereby reading on a coated seed comprising a seed core comprising a polyurethane coating, as instantly claimed.
Regarding the first and second germination rates of claim 1, where the core comprises a seed that has an uncoated germination rate (i.e., a first germination rate), and wherein the coated seed has a higher germination rate compared to the control (i.e., a second germination rate), the functional limitations are met.
Regarding the newly amended limitation of “under a first set of conditions in a first growing season,” where the seeds were sown in a field, i.e., a first set of conditions, and were subsequently germinated when conditions were suitable for germination, i.e., first growing season, it appears the functional limitations are met.
Regarding the rupture of the coating of claim 1, where the germination of the coated seeds comprise the sprouts and roots of the seed breaking through the coating, it appears the limitation of the coating being ruptured is met.
Further, regarding the rate itself, as discussed above, Applicants are attempting to claim the coating by what it does, rather than what it is. It appears that the rupture rate of the coating largely depends on several factors outside of the composition and structure of the coating itself, such as soil temperature, soil type, moisture content of the soil, time of year, oxygen conditions, light exposure, implantation timing, etc., as discussed above. Without controlled conditions, it is difficult, if not impossible, to determine what coatings in the prior art meet the instant claims. Nevertheless, it would have been obvious to adjust the coating rupture rate of Sakamoto by formulating a coated seed with known rupture rates suitable for synthetic resin seed coatings designed for delayed seed coating rupture rate and delayed germination, such as from about 30 to 180 days, as taught by Langan, depending on the conditions the seed is sown, etc. 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). The skilled artisan would have motivation and a reasonable expectation of success where Buerger teaches polyurethane coating thickness alters delayed seed germination, and where Langan teaches the thickness of synthetic resin coatings, taken with the nature of the coating material and the amount and type of filler, are factors to be considered in designing a coating for particular germination delay, depending on the desired use of the coated seeds, time of sowing, environmental conditions, etc. Further, where Sakamoto discloses embodiments where 10% of the polyurethane coated seeds were germinated at 191 days after sowing under a set of conditions, it would have been well within the relative skills of the skilled artisan to have routinely optimized the rupture rate of the seed coatings, in order to achieve desired germination delay for desired seed, sowing conditions, climate, environmental conditions, etc., where the skilled artisan would reasonably recognize the polyurethane amount, thickness, etc., as results effective variables for controlling the rupture rate of the seed coatings, as taught by Buerger and Langan. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. 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. See MPEP 2144.05(II)(A).
Regarding claims 2-6, it would have been obvious to formulate the coated seed of Sakamoto with a coating amount in the range of 2-20 wt% relative to the seeds, as taught by Sakamoto, depending on the desired rupture rate, where seed coating amount and thickness were known to adjust rupture rate of seed coatings. 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).
Purely arguendo, if the total weight of the seed as disclosed by Sakamoto does not include the coating, then 2-20 wt% of the total coated seed weight would be about 1.96-16.67 wt% (2-20 wt% coating / (seed weight + coating weight) = about 1.96-16.67 wt%), overlapping the claimed ranges. See MPEP 2144.05(I).
Regarding claims 7 and 12, where Sakamoto discloses the coated seeds have improved survival rates and a higher germination rate compared to uncoated seeds, the limitation of having a second germination rate that is better than the first germination rate is met, where the first germination rate appears to be the germination rate of the uncoated seed, as discussed above.
Regarding claims 8-11, where the polyurethane coating on the seeds of Sakamoto are taught to improve the survival and germination rate of seeds exposed to environmental factors that reduce survival, depending on the conditions the seeds are planted in, it would be reasonably expected that the germination rate of the uncoated seed and the germination rate of the coated seed would be substantially the same when both are planted under optimal germination conditions. For example, if 100% of the uncoated seeds were germinated under optimal conditions, the germination rates would be the same where the coating is taught to improve germination, not hinder it. Therefore, it appears that the first and second germination rates are an inherent property of the seed and the coated seed, depending upon the conditions upon which they are planted, thereby meeting the claimed limitations. See MPEP 2112(II) and (III).
Regarding claim 23, it would have been obvious to formulate a coated seed wherein the coating comprises a polyurethane, in coating amounts and rupture rates overlapping the claimed range for the same reasons discussed above. Further, it would have been obvious for the skilled artisan to have routinely optimized the rupture rate by adjusting the coating thickness and amount in order to achieve desired rupture rate for desired seed, sowing conditions, climate, environmental conditions, etc., for the same reasons discussed above by Buerger and Langan.
Regarding the first and second germination rates of claims 23-26, where the polyurethane coating on the seeds of Sakamoto are taught to improve the survival and germination rate of seeds exposed to environmental factors that reduce survival, depending on the conditions the seeds are planted in, it would be reasonably expected that the germination rate of the uncoated seed and the germination rate of the coated seed would be substantially the same when both are planted under optimal germination conditions. For example, if 100% of the uncoated seeds were germinated under optimal conditions, the germination rates would be the same where the coating is taught to improve germination, not hinder it. Therefore, it appears that the first and second germination rates are an inherent property of the seed and the coated seed, depending upon the conditions upon which they are planted, thereby meeting the claimed limitations. See MPEP 2112(II) and (III).
Regarding claims 27 and 28, it would have been obvious to formulate the coated seed made obvious above rupture rates overlapping the claimed amounts for the same reasons discussed above. Further, it would have been obvious for the skilled artisan to have routinely optimized the rupture rate by adjusting the coating thickness and amount in order to achieve desired rupture rate for desired seed, sowing conditions, climate, environmental conditions, etc., for the same reasons discussed above by Buerger and Langan.
Regarding claim 29, it would have been obvious to formulate a coated seed wherein the coating comprises a polyurethane, in coating amounts and rupture rates overlapping the claimed range for the same reasons discussed above. Further, it would have been obvious for the skilled artisan to have routinely optimized the rupture rate by adjusting the coating thickness and amount in order to achieve desired rupture rate for desired seed, sowing conditions, climate, environmental conditions, etc., for the same reasons discussed above by Buerger and Langan.
Regarding the limitation of dormancy rate of claims 29-31, as defined by the instant specification, seed dormancy is the period between planting a seed in soil to germination of the seed (see pg 22 of the instant specification). Where Sakamoto teaches embodiments where the 98% of the coated seeds germinated and 3% of the coated seeds germinated, it appears that these teachings suggest that 98% of the coated seeds were dormant prior to germination, where only 3% of the uncoated seeds remained dormant up until germination due to lack of seed survival. Accordingly, it would have been obvious to formulate the coated seed with increased dormancy rate compared to uncoated seed falling within the claimed range (3,166.67% more). The skilled artisan would have had a reasonable expectation of success where Sakamoto teaches the coatings increase the survival and germination of the seed, and teaches the polyurethane coatings also had excellent survival.
Regarding claim 32, it would have been obvious to formulate the coated seed made obvious above with rupture rates overlapping the claimed amounts for the same reasons discussed above. Further, it would have been obvious for the skilled artisan to have routinely optimized the rupture rate by adjusting the coating thickness and amount in order to achieve desired rupture rate for desired seed, sowing conditions, climate, environmental conditions, etc., for the same reasons discussed above by Buerger and Langan.
Response to Arguments
Applicants assert Sakamoto does not teach a rupture rate within the claimed range, and asserts Example 16 of Sakamoto has germination rates outside of the claimed range for rupture rates. Applicants assert the after 10 days the germination falls outside of the claimed range for rupture rates, and seeds that may have ruptured later does not establish that the coating itself ruptured within the claimed range. Further, Applicants assert Sakamoto is silent as to the claimed germination rate relationship recited in claims 7-12, and asserts the examiner’s inherency argument is based on speculation or possibilities.
Respectfully, this argument is not persuasive. While Sakamoto does not appear to explicitly disclose a seed that ruptured within the claimed range, the general teaching is that the coatings have rupture rates that can vary, and where Langan teaches that seed germination rates, which leads to rupture of the seed by the seed germination, depends largely on external factors other than the seed itself, including climate, soil temperature, light exposure, moisture, etc. Accordingly, where it was known that the seed coatings can be adjusted to achieve more or less germination delay, it would have been obvious for the skilled artisan to adjust the coatings to achieve desired germination delay and subsequent coating rupture rate, depending on the seed, time of sowing, and conditions for which the seed is to be sown, for the same reasons discussed above. Regarding the inherency argument, as noted above, the rupture and germination rates depend on external factors other than the seed coating itself, and where the polyurethane seed coating is taught to improve the survival of the seed during winter months and does not hinder germination, it appears that the coated seeds would be reasonably expected to have about the same germination rates as uncoated seeds, when both are sown in conditions that are optimal for seed germination and seed survival. The claims require “a first set of conditions,” which allows for the seed to be sown under any condition.
Claims 7-12 and 23-26, are rejected under 35 U.S.C. 103 as being unpatentable over Sakamoto et al (JP 2017035043 A, hereinafter “Sakamoto”), Buerger et al (DE 4414724 A1, hereinafter “Buerger”) and Langan et al (US 4493162 A, hereinafter “Langan”), as applied to claims 1-12 and 23-32 above, and further in view of Zhang (CN 106612751 A).
The references are discussed above and purely arguendo, if somehow the germination rates are not an inherent property, the following applies.
Zhang teaches polyurethane seed coatings for delaying germination were known to be formulated with 99-100% germination rates compared to uncoated seeds (¶¶ 2, 9, table 3).
It would have been obvious to formulate the polyurethane coated seeds made obvious above with known germination rates suitable for polyurethane coated seeds, such as 99-100% compared to uncoated seeds (i.e., the first germination rate), as taught by Zhang, depending on the conditions for which the seed is to be sown. 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).
Response to Argument
Applicants assert Zhang’s polyurethane coatings are designed for short-term emergence control of corn seeds, not for long-term seed protection, and Zhang teaches the coating delays emergence by 5 days, which is inconsistent with the rupture rate as claimed.
Respectfully, this argument is not persuasive. Zhang was not relied upon for adjusting the time of delayed emergence, Zhang was relied upon for simply teaching that polyurethane seed coatings were known to be formulated with germination rates that were substantially the same as uncoated seeds. Accordingly, where Sakamoto teaches the polyurethane coatings improve survival of seeds and subsequent germination rate compared to uncoated seeds when conditions are not optimal, rather than hinder it, and where Zhang teaches polyurethane seed coatings were known to be formulated with germination rates that are substantially the same as the uncoated seeds, it would have been obvious to formulate a polyurethane seed coating with germination rates that are 99-100% compared to uncoated seeds, depending upon the conditions for which the seed is to be sown.
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 JOSHUA A ATKINSON whose telephone number is (571)270-0877. The examiner can normally be reached M-F: 9:00 AM - 5:00 PM + Flex.
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/JOSHUA A ATKINSON/Examiner, Art Unit 1612
/SAHANA S KAUP/Supervisory Primary Examiner, Art Unit 1612
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