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 .
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.
Claim Rejections - 35 USC § 102
Claim 26 is rejected under 35 U.S.C. 102(a) (1) as anticipated by CN 107459387 (A). CN 107459387 (A). discloses a nutrient solution comprising melamine and sodium iron EDTA in claim 1 and Paragraph [0009] of the English translation. The composition of CN 107459387 (A). would include a solvent, since it is in the form of a solution. The melamine in the solution of CN 107459387 (A). would constitute a supramolecular guest chemical configured to engage in guest chemistry with the sodium iron EDAT of CN 107459387 (A) to no less extent than in the composition recited in applicant’s claims, since applicant’s specification provides evidence in Paragraphs [0033] and [0042] that iron as a micronutrient would be a host to melamine as a guest chemical.
Claim Rejections - 35 USC § 102
Claim Rejections - 35 USC § 103
Claims 26-29, 32, 35-38 and 42-45 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 1,737805 B1. No distinction is seen between the composition disclosed by EP 1,737805 B1, and that recited in claims 26-29, 32, 35-38 and 42-45. EP 1,737805 B1 discloses a formulation comprising a micronutrient such as zinc sulfate, with a preferred additional nutrient of melamine. (See Paragraph [0026].) EP 1,737805 B1 also discloses in Paragraph [0024] that the composition includes a liquid solvent. Accordingly EP 1,737805 B1 anticipates claims 26-29, 32 and 35-38. In any event, it would be obvious to provide a combination of a micronutrient and melamine as the composition of EP 1,737805 B1, since EP 1,737805 B1 teaches in Paragraph [0026] that melamine can be included as an additional nutrient. The melamine in the formulation of EP 1,737,805 B1 would constitute a supramolecular guest chemical configured to engage in guest chemistry with the micronutrients to no less extent than in the composition recited in applicant’s claims, since applicant’s specification provides evidence in Paragraphs [0035] and [0042] that micronutrients serve as hosts to melamine as a guest chemical.
Regarding claims 27-29, 37 and 38, EP 1,737805 B1) discloses in Paragraph [0026] that the micronutrient can be copper or manganese.
Regarding claim 32, EP 1,737805 B1 discloses in Paragraph [0019] that the mixture is in the form of an aqueous suspension, which connotes that the solvent is water. EP 1,737805 B1 also discloses in Paragraph [0046] that the solvent is water.
Regarding claims 35 and 36, EP 1,737805 B1 discloses in Paragraph [0019] that the composition can be applied to plants by spraying.
Regarding claim 37, EP 1,737,805 B1 discloses in Paragraph [0056] that copper sulfate can be present as a nutrient.
Regarding claim 38, EP 1,737,805 B1 discloses in Paragraph [0056] that cobalt sulfate can be present as a nutrient
Claim Rejections - 35 USC § 103
Claims 30, 33, 34, 39 and 40 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 various components.
Regarding claim 30, EP 1,737,805 B1 discloses in Paragraph [0026] that the micronutrient source is present in an amount of 15% to 20% by weight. It would be further obvious to provide the melamine in an amount of about 1 % to about 90% by weight of the composition, since EP 1,737,805 B1 discloses in Paragraph [0027] that urea is present in an amount of 1-20 weight percent and potassium oxide in an amount of 0 to 50 weight percent, and one would expect that melamine should be present in similar quantities, since urea, potassium oxide and melamine are all disclosed as additional nutrients on page 4, lines 43 and 44 of EP 1,737,805 B1.
Regarding claim 33, EP 1,737,805 B1 discloses an amount of ferric chelates of 35-79 weight percent in Paragraph [0025] and an amount of additional nutrients of 15-20% by weight in Paragraph ]0026]. It would be obvious to provide an amount of solvent up to 50 weight percent as the balance.
Regarding claim 34, EP 1,737,805 B1 discloses in Paragraph [0024] that the composition comprises mixtures of the components including the solvent. It would be a matter of routine design choice to determine the order of addition of the components. Accordingly it would be obvious to add the micronutrient source to a mixture of the solvent and melamine in the process of EP 1,737,805 B1. There is no evidence on record of unexpected results which would emanate from the step of adding the micronutrient source to a mixture of the melamine and solvent in the process of EP 1,737,805 B1, as opposed to some other order of mixing.
Regarding claim 39, EP 1,737,805 B1 discloses in Paragraph [0038] that the rate of application depends upon the crop, the level of chlorosis and the crop development stage, with a further disclosure that advantageous rates of application between 1 kg and 50 kg of the mixture. One of ordinary skill in the art could determine a suitable rate of application considering such factors.
Regarding claim 40, EP 1,737,805 B1 discloses on page 4, lines 40-42 that the micronutrient source can be present in an amount as low as 5% by weight. It would be further obvious to provide the melamine in an amount of about 1 % to about 90% by weight of the composition, since EP 1,737,805 B1 discloses in Paragraph [0027] that urea is present in an amount of 1-20 weight percent and potassium oxide in an amount of 0 to 50 weight percent, and one would expect that melamine should be present in similar quantities, since urea, potassium oxide and melamine are all disclosed as additional nutrients on page 4, lines 43 and 44 of EP 1,737,805 B1.
Claims 46 and 48 are rejected under 35 U.S.C. 103 as being unpatentable over EP 1,737805 B1 as applied to claim 1 above, and further in view of YAMASHITA (US 2009/0078014). It is further noted that EP 1,737805 B1 discloses ferric chelates as the micronutrient source on page 4, line 53 and teaches on page 4, lines 29 and 30 that the composition may include a surfactant. It would be further obvious from YAMASHITA to include humic acid, citric acid and glucose or fructose in the composition. One of ordinary skill in the art would be motivated to do so, since YAMASHITA discloses the benefits of including glucose, fructose, humic acid and citric acid in agricultural compositions in Paragraphs {0015] and [0048].
Claim 47 is rejected under 35 U.S.C. 103 as being unpatentable over EP 1,737805 B1 in view of YAMASHITA et al 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 include an ethoxylate as the surfactant in the composition of EP 1,737,805 B1. One of ordinary skill in the art would be motivated to do so, since WO 2019/215697 A1 establishes the conventionality of ethoxylates as surfactants in agricultural compositions from page 27, line 26 to page 29, line 18.
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 26-48 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 26-46 of copending Application No. 18/247613 in view of EP 1,737805 B1 It would be obvious from EP 1,737805 B1 to include a micronutrient in the composition recited in the claims of SN 18/247613. One of ordinary skill in the art would be motivated to do so, since discloses an analogous composition, and teaches on page 4, lines 43 and 44 that the composition may include such macronutrients as urea, potassium oxide and inorganic nitrates.
This is a provisional nonstatutory double patenting rejection.
The Drawings filed on March 31, 2023 are objected to in that FIG. 1A, 1D, 2B, 3A and 3B are illegible.
This application apparently discloses allowable subject matter (i.e., regarding claims 31 and 41).
The following is a statement of reasons for the indication of allowable subject matter: EP 1,737805 B1 discloses a formulation comprising a micronutrient such as zinc sulfate, with a preferred additional nutrient of melamine. (See Paragraph [0026].) EP 1,737805 B1 also discloses in Paragraph [0024] that the composition includes a liquid solvent. It would be obvious to provide a combination of a micronutrient and melamine as the composition of EP 1,737805 B1, since EP 1,737805 B1 teaches in Paragraph [0026] that melamine can be included as an additional nutrient. The melamine in the formulation of EP 1,737,805 B1 would constitute a supramolecular guest chemical configured to engage in guest chemistry with the micronutrients to no less extent than in the composition recited in applicant’s claims, since applicant’s specification provides evidence in Paragraphs [0035] and [0042] that micronutrients serve as hosts to melamine as a guest chemical. However there is no teaching, disclosure or suggestion in EP 1,737,805 B1 to include a supramolecular host chemical for the micronutrients in the composition of EP 1,737,805 B1, let alone a supramolecular host chemical comprising a nanostructure having a charge, magnetic properties or both. Applicant’s specification discloses such host chemicals as cavitands, cryptands, rotaxanes and catenanes as being suitable host chemicals in Paragraphs [0037] through [0041]. Accordingly claims 31 and 41 are not rejected over EP 1,737,805 B1.
CN 104292018 (A) is made of record for disclosing a fertilizer coating agent comprising melamine-formaldehyde resin in Paragraph [0008].
CN 104311233 (A) is made of record for disclosing a fertiliozer composition comprisingdiammonium phosphate and melamine in Paragraph [0014].
CN 104478544 (A) is made of record for disclosing a fertilizer comprising chelated iron with a coating agent comprising melamine-formaldehyde resin in Paragraphs [0007] and [0008].
Horchler et al (US 2003/0154755) is made of record for disclosing a fertilizer containing nitrogen and melamine in the Abstract.
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