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 Rejections - 35 USC § 102
Claim Rejections - 35 USC § 103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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.
Claims 26, 27, 31, 34, 36, 37 and 40-43 are rejected under 35 U.S.C. 102 (a) (1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over EP 1,737,805 B1. No distinction is seen between the composition disclosed by EP 1,737,805 B1, and that recited in claims 26, 27, 31, 34, 36, 37 and 40-43. EP 1,737,805 B1 discloses an agricultural formulation including such macronutrients as calcium nitrate, potassium nitrate and potassium hydrogen phosphate (see Paragraph [0026]), and teaches on page 4, lines 43 and 44 that a preferred additional nutrient can be melamine. Accordingly EP 1,737,805 B1 anticipates claims 26, 27, 34 and 36, since applicant’s specification provides evidence in Paragraph [0043] that melamine is a supramolecular guest chemical to macronutrients. In any event, it would be obvious to select melamine as the additional nutrient in the composition of EP 1,737,805 B1, since EP 1,737,805 B1 discloses melamine as an additional nutrient on page 4, lines 43 and 44. EP 1,737,805 B1 also discloses in Paragraph [0024] that the composition can include a solvent.
Regarding claim 31, EP 1,737,805 B1 discloses in Paragraph [0038] that the composition may be provided as an aqueous suspension, which would suggest that the solvent is water.
Regarding claims 34, 36 and 42, EP 1,737,805 B1 discloses in Paragraph [0019] that the formulation may be applied to the plants by spraying.
Regarding claim 43, EP 1,737,805 B1 discloses in Paragraph [0021] that the formulation may include fertilizers.
Claim Rejections - 35 USC § 103
Claims 29, 32, 33, 35 and 38 are rejected under 35 U.S.C. 103 as being unpatentable over EP 1,737,805 B1. EP 1,737,805 B1 is relied upon as discussed hereinbefore. It would be within the level of skill of one of ordinary skill in the art to determine suitable amounts of the components.
Regarding claim 33, the steps recited therein would be an obvious method to form the composition.
Claims 28, 44 and 46 are rejected under 35 U.S.C. 103 as being unpatentable over EP 1,737,805 B1 as applied to claim 26 above, and further in view of YAMASHITA (US 2009/0078014). EP 1,737,805 B1 discloses in Paragraph [0021] that the formulation may include surfactants and in Paragraph [0027] that ferric chelates can be included. It would be obvious from YAMASHITA to include humic acid, citric acid and a sugar such as glucose or fructose in the composition. One of ordinary skill in the art would be motivated to do so, since YAMASHITA discloses the advantages of these components in Paragraphs [0015] and [0048].
Claims 45 is rejected under 35 U.S.C. 103 as being unpatentable over EP 1,737,805 B1 in view of YANASHITA as applied to claim 46 above, and further in view of WO 2019/215697 A1. It would be further obvious from WO 2019/215697 A1 to employ an ethoxylate as the surfactant. One of ordinary skill in the art would be motivated to do so, since WO 2019/215697 A1 establishes ethoxylates as conventional surfactants from page 27, line 26 to page 29, line 18, and EP 1,737,805 B1 teaches on page 4, lines 29 and 30 that surfactants customarily used in formulation technology can be used.
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.
Claims 28-46 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim s 26-48 of copending Application No.18/247624 view of EP 1,737,805 B1. It would be obvious from EP 1,737,805 B1 to include a macronutrient in the formulation recited in the claims of SN. 18/247613. One of ordinary skill in the art would be motivated to do so, since EP 1,737,805 B1 discloses an analogous formulation which includes both micronutrients and macronutrients.
This is a provisional nonstatutory double patenting rejection.
The Drawings filed on March 31, 2023 are objected to in that GIG. 1A, 1D, 2B, 3A and 3B are illegible
This application apparently discloses allowable subject matter (i.e., regarding claims 30 and 39).
The following is a statement of reasons for the indication of allowable subject matter: EP 1,737,805 B1 discloses an agricultural formulation including such macronutrients as calcium nitrate, potassium nitrate and potassium hydrogen phosphate (see Paragraph [0026]), and teaches on page 4, lines 43 and 44 that a preferred additional nutrient can be melamine. The melamine in the formulation of EP 1,737,805 B1 would serve as a guest chemical to the macronutrients, since applicant’s specification provides evidence in Paragraph [0043] that melamine is a supramolecular guest chemical to macronutrients. EP 1,737,805 B1 also discloses in Paragraph [0024] that the composition can include a solvent. However there is no teaching, disclosure or suggestion in EP 1,737,805 B1 to provide a supramolecular host chemical to the macronutrients, let alone a host chemical comprising a nanostructure having a charge, magnetic properties, or both. Applicant’s specification discloses in Paragraphs [0028] through [0042] that suitable supramolecular host chemicals include cavitands, cryptands, rotaxanes and catenanes. Accordingly claims 30 and 39 are not rejected over EP 1,737,805.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WAYNE A LANGEL whose telephone number is (571) 272-1353. The examiner can normally be reached Monday through Friday from 8:15 am to 4:15 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Zimmer can be reached at 571-270-3591. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WAYNE A LANGEL/Primary Examiner, Art Unit 1736