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 03/31/2026, 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 Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 1-5, 7, 8, 10-12, 14-16, and 18-26 are pending.
Claims 18-25 are withdrawn.
Claim Objections
Claim 2 stands objected to because of the following informalities: in ln 5, “35 - 55 wt.-%” should read “35 to 55 wt.-%,” in order to provide terminology consistent with the previous range (“to” vs “-“). Appropriate correction is required.
Claim 3 stands objected to because of the following informalities: in ln 5, “35 - 65 wt.-%” should read “35 to 65 wt.-%,” in order to provide terminology consistent with the previous range (“to” vs “-“). Appropriate correction is required.
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.
Claim 11 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.
Claim 11 recites the limitation "the copolymer" in line 3. There is insufficient antecedent basis for this limitation in the claim. Claim 11 depends from claim 1, where a mixture of copolymers comprising a first and second copolymer is recited, and it is unclear if “the copolymer” is referring to the mixture of copolymers, the first copolymer, or the second copolymer. For purposes of examination, the limitation is interpreted to refer to the mixture of copolymers.
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.
Claims 1, 4, 5, 8, 10-12, 14-16, and 26, are rejected under 35 U.S.C. 103 as being unpatentable over Wagner et al (WO 2013166020 A1, hereinafter “Wagner”), in view of Stewart et al (US 20070104745 A1, hereinafter “Stewart”), Eren et al (J. Therm. Anal. Calorimetry, 2020, 141:1331-1339, hereinafter “Eren”), Australian Industrial Chemicals Introduction Scheme (Full public report - Polymer of 2-propenoic acid, butyl ester, Diethenylbenzene, and ethenylbenzene, 1991, hereinafter “AICIS”), and Herold et al (WO 2016055096 A1, cited on IDS dated 08/03/2023, hereinafter “Herold”).
Wagner teaches seed treatment mixtures which comprise an agricultural active component to produce coated seeds having a combination of good flowability, plantability, and low dust-off characteristics (abs). In one embodiment, the seed treatment mixtures comprise an active component and a binder formulation including a latex carrier (pg. 4 ln 18-19). The seed treatment may be applied to a seed in a variety of manners conventional in the seed treating art, including mixing in a container, spraying, immersion, etc., (pg. 23 ln 20 to pg. 24 ln 8). Seeds include rice seeds (pg. 24 ln 25-26). In one embodiment, the latex carrier in the binder formulation comprises a styrene-acrylate based copolymer (pg. 5 ln 29-30). The copolymer includes at least two of the following comonomers: styrene comonomers, butyl acrylate monomers, etc. (pg. 6 ln 1-2). The binder formulation may comprise additional binders/polymers (pg. 13 ln 3-4). The copolymer has an average molecular weight from about 500 g/mol to about 3 Mg/mol (i.e., 3,000,000 g/mol) (pg. 28 ln 1-2, claim 12). Colorants may be included (pg. 12 ln 5-11, pg. 16 ln 29). The seed treatment mixture can be applied together or sequentially with active compounds (pg. 12 ln 31-32). The agricultural active agents include fungicides, including difenoconaole, ipconazole, etc. (i.e., azole fungicides), azoxystrobin (strobilurins), metalaxyl, fludioxonil, imidacloprid, thiamethoxam, etc. (pg. 10 ln 10 to pg. 11 ln 8, pg. 21 ln 11). In embodiments, the additional binder may be 10 wt% (pg. 13 ln 24-25).
Wagner does not teach the first copolymer as instantly claimed, the specific molecular weight of the first copolymer as instantly claimed, nor application to the seed in the form of a dispersion.
Stewart teaches dispersion of copolymers that are useful for providing coatings on substrates, particular seeds, where suitable monomers include styrene, butyl acrylate, etc. (abs, ¶¶ 80, 121). The addition of a crosslinking monomer, including divinyl benzene, was known to increase mechanical strength of the coatings formed from dispersions (¶ 75).
Stewart, while teaching divinylbenzene (i.e., diethenylbenzene), does not specifically teach 1,4-diethenylbenzene, nor application to the seed in the form of a dispersion.
Similarly, Eren teaches divinylbenzene cross-linked copolymers comprising butyl acrylate were known to be suitable for coating compositions (abs, pg. 1331 1st col last ¶). The divinylbenzene crosslinked latex have satisfactory stability and good dispersibility (abs). As evidenced by AICIS, divinyl benzene is synonymous with diethenylbenzene (pg. 3). The inclusion of divinylbenzene in the copolymer resulted in increased thermal stability (abs).
Eren, while teaching divinylbenzene (i.e., diethenylbenzene), does not specifically teach 1,4-diethenylbenzene, nor application to the seed in the form of a dispersion.
AICIS discloses that the copolymer of CAS No. 57516-68-4 was known to be used as a binder (pg. 5). As evidenced by pg. 5 of the instant specification, CAS No. 57516-68-4 is the copolymer of butyl acrylate, 1,4-diethenylbenzene, and styrene (see pg. 5 of the instant specification).
AICIS does not disclose application to the seed in the form of a dispersion.
Herold teaches a method for preparing a coated rice seed, wherein a seed coating is at least partially applied to the surface of a dry rice seed (abs). The coating comprises at least an ethylene-vinylacetate copolymer and at least one agrochemical (abs). The copolymer was applied to the seed in the form of a dispersion, preferably a water-based dispersion (pg. 4 ln 19-20). The dispersion may have a solids content of 30-80 wt%, measured according to DIN EN ISO 3251, 30 mins, at 130 deg C (pg. 6 ln 5-6). In order to improve the film forming properties, it is advantageous that the dispersion has a minimum film forming temperature of 0 deg C, measured according to DIN ISO 2115 (pg. 6 ln 14-15). According to a preferred embodiment, the dispersion is mostly free of plasticizers and/or other non-ionic detergents; this is advantageous as the copolymers may be provided as a water-based dispersion without the need of additives which may cause environmental problems (pg. 6 ln 16-20). The application rate of the copolymer may vary, for example, from 0.001 to 2.5 wt% in relation to the weight of the untreated seed (pg. 18 ln 18-20). The application rate of the agrochemical is 0.001 to 5 wt% in relation to the weight of the untreated seed (pg. 18 ln 21-27). Further copolymers can be included (pg. 17 ln 34-35, claim 16). It was known to formulate seed coating copolymers with a Tg of -100to 20 deg C, which is advantageous because the copolymer stays elastic and also tacky under normal storing temperature conditions of rice seed, so that good fixation of the coating is achieved and delamination of the coating can be avoided (pg 4 ln 11-18, claim 6).
Regarding the method of claim 1, it would have been obvious to coat rice seeds with a copolymer coating, as taught by Wagner. Further, it would have been obvious to include multiple copolymers, where Wagner teaches that additional binders/polymers may be included.
Regarding the copolymers of claim 1, where Wagner teaches copolymer coatings comprising styrene and butyl acrylate were suitable, and further teaches additional binders/polymers may be included, it would have been obvious to further include a copolymer coating comprising styrene, butyl acrylate, and divinylbenzene, where divinylbenzene was known to be used in copolymer coating compositions useful for coating seeds in order to improve their mechanical strength and thermal stability, as taught by Stewart and Eren.
Further, it would have been obvious to select from known divinylbenzenes suitable for copolymers comprising styrene and butyl acrylate, such as 1,4-diethenylbenzene, as taught by AICIS.
Regarding the second copolymer of claim 1, it would have been obvious to include a copolymer coating comprising styrene and butyl acrylate, which are taught to be suitable by Wagner.
Regarding the agrochemical of claim 1, it would have been obvious to include an agrochemical active component in the copolymer coatings, as taught by Wagner.
Regarding application in the form of a dispersion of claim 1, it would have been obvious to apply the seed coating made obvious above via known methods for applying copolymer seed coatings, such as in the form of a dispersion, as taught by Herold.
Regarding the newly amended functional limitation of claim 1, where the method made obvious above comprises a copolymer of butyl acrylate, 1,4-diethyenylbenzene, and styrene, a copolymer of butyl acrylate and styrene, at least one agrochemical, and is coated to the surface of a rice seed in the form of a dispersion, it appears the resulting functional properties of the coating is inherent to the components of the coating itself. A rejection can be made when the prior art product seems to be identical except that the prior art is silent as to an inherent characteristic. See MPEP 2112(II) and (III). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. See MPEP 2112.01(I). Further, if the composition if physically the same, it must have the same properties. See MPEP 2112.01(II).
Regarding claim 4, where Wagner teaches that additional copolymers can be included, and discloses the additional binders (which include additional copolymers) can be up to 10 wt% in particular embodiments, it would have been obvious for the skilled artisan to start with 10 wt%, and adjust up from there, in order to achieve desired copolymer properties for optimal seed coatings with the desired agricultural active. 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). Here, the general conditions are a coating comprising a copolymer, where additional copolymers can be included, and it would have been well within the relative skills of the skilled artisan to routinely adjust the mixing ratios to achieve desired properties, as discussed above.
Regarding claim 5, it would have been obvious to formulate the first and second copolymers made obvious above, within known suitable molecular weight ranges for copolymer seed coatings, such as from about 500 g/mol to about 3 Mg/mol (i.e., 3,000,000 g/mol), as taught by Wagner. 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).
Regarding claim 8, it would have been obvious to further include a colorant, as motivated by Wagner.
Regarding claims 10 and 11, it would have been obvious to apply the dispersion made obvious above with a solids content of 30-80 wt% measured according to DIN EN ISO 3251, 30 mins, at 130 deg C, and with a minimum film forming temperature of 0 deg C, measured according to DIN ISO 2115, as taught by Herold.
Regarding the glass transition temperature of claim 11, where the seed coating in the method made obvious above comprises the same components as instantly claimed, and is applied by substantially the same method, it appears the Tg is inherent to the components of the seed coating itself. A rejection can be made when the prior art product seems to be identical except that the prior art is silent as to an inherent characteristic. See MPEP 2112(II) and (III). When the structure or composition is substantially identical, claimed properties or functions are presumed to be inherent. See MPEP 2112.01(I) and (II).
Purely arguendo, if the Tg is somehow not inherent, it would have been obvious to formulate the seed coating in the method made obvious above with known a known Tg suitable for rice seed coatings, such as -100 to 20 deg C, where this Tg range was known from Herold to be advantageous because the copolymer stays elastic and also tacky under normal storing temperature conditions of rice seed, so that good fixation of the coating is achieved and delamination of the coating can be avoided.
Regarding claim 12, it would have been obvious to use a dispersion that is mostly free of plasticizers and/or non-ionic detergents, in order to limit additives which may cause environmental problems, as taught by Herold.
Regarding claim 14, it would have been obvious to select from the agrochemical active components taught by Wagner, such as difenoconaole, ipconazole, etc. (i.e., azole fungicides), azoxystrobin (strobilurins), metalaxyl, fludioxonil, imidacloprid, thiamethoxam, etc.
Regarding claim 15, it would have been obvious to apply the first and second copolymer and the at least one agrochemical to the seed in a sequential manner, which is taught by be suitable by Wagner.
Regarding claim 16, it would have been obvious to apply the copolymers made obvious above in known application rates suitable for copolymer seed coatings, such as from 0.001 to 2.5 wt% in relation to the weight of the untreated seed, as taught by Herold.
It would have been obvious apply the agrochemicals in the copolymer seed coating made obvious above, at known application rates suitable for copolymer seed coatings comprising agrochemicals, such as from 0.001 to 5 wt% in relation to the weight of the untreated seed, as taught by Herold.
Regarding claim 26, where Wagner teaches the copolymers comprises at least two of styrene comonomers, butyl acrylate monomers, etc., it would have been obvious to formulate the compositions free of acrylic acid, where Wagner suggests they are optional.
Response to Arguments
First, Applicants assert that when a seed is at least partially coated with a seed coating that includes a mixture of the copolymers, the seed coating is able to reduce the leaching/release rate of the at least one agrochemical when the rice seed is soaked. Applicants assert Wagner does not teach or suggest any improvements related to the leaching/and or release rate of an agrochemical during soaking, rather, Wagner teaches reducing high levels of dust-off of the active ingredients and other coating ingredients.
Second, Applicants assert Wagner does not teach or suggest a copolymer in the form of a dispersion now incorporated into claim 1, and to remedy this, Herold was relied upon. Applicants assert that as shown in the application, the use of Herold’s dispersion demonstrates that the retention of the agricultural active as well as the colorants still need improvement, since after soaking, the soaking water shows coloration, which is indication for loss of colorant on the seed as well as possibly active ingredient. Applicants assert the polymer did not show sufficient flowability/viscosity, in particular under cold conditions, thus application and coating were difficult. The comparative experiments were said to comprise Peridiam 104, which is a coating according to WO 2016/055439, and Applicants assert is an improvement to the Herold of record.
Third, Applicants assert that even if Wagner was modified to include the copolymer mixture in the form of a dispersion as taught by Herold, the skilled person would not have reasonably expected to form a coating that demonstrates flowability while retaining coloration and agrochemical actives upon soaking such that less than 3 wt% of the agrochemical is lost compared to the weight of the agrochemical coating, and that the copolymers would be sufficiently water permeable so that an improvement in germination rate compared to the polymers of Herold is observed.
Fourth, Applicants assert Herold, Eren, and AICIS do not remedy what Wagner alone, or in combination with Herold lack. Applicants assert Eren does not teach or suggest that the coating may insist in improving the retention of agrochemicals upon soaking.
First, respectfully, this argument is not persuasive. The recitation in the specification pointed to by Applicants recite “they may… prevent wash-off of agrochemicals from the seed during soaking.” An assertion of what may take place is not objective evidence to support Applicants alleged results. Further, while Wagner may be directed to reducing high levels of dust-off, the seed coating composition in the method made obvious above comprises the same components as instantly claimed, and accordingly, the resulting function of the coated seed would be expected to be inherent to the coated seed itself, for the same reasons discussed above.
Second, respectfully, this argument is not persuasive. Applicants assert improved color loss was shown in the water coloration test, as well as improved flowability and viscosity, of the claimed coating compared to Peridiam 104, however, Applicants assert Peridiam 104 is a polymer disclosed in WO 2016055439, which is not a reference relied upon in the prior art rejection of record. Applicants assert Peridiam 104 is an improvement on the coatings of the cited Herold reference, but it is not clear to the examiner what exactly Peridiam 104 is, or even if it is disclosed in the Herold reference of record. Nevertheless, the examiner notes that Herold was not cited for the copolymer mixtures, but instead simply for methods of applying a copolymer mixture to seeds. The mixture of copolymers were made obvious above by Wagner, Stewart, Eren, and AICIS, not Herold. Therefore, it does not appear that Applicants have compared the instantly claimed method to the closest prior art. Applicants must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. See MPEP 716.02(e). Assuming purely arguendo that unexpected results have been established, it is not clear what monomeric ratios are used in each of the copolymers, the ratio of first and second copolymer, etc., from the examples, and because of this, it does not appear that the results for the single tested embodiment can be to be reasonably extended to the full scope of the instant claims. Additionally, it is not clear what effect the amount of active agent will have on the results. Finally, the tables referred to by Applicants recite the coloration value or physical properties in line with the heading of “weight of 50 plants aerial part (g),” but there appears to be no weights listed. It is unclear why this is used as a heading over seemingly unrelated observations (color and physical properties).
Third, respectfully, this argument is not persuasive. As noted above, Herold was not relied upon for teaching the copolymer mixture. Further, it does not appear that Applicants have compared the claimed method to the closest prior art, for the same reasons discussed above. Purely arguendo, even if Peridiam 104 was the closest prior art, Applicants assert an improvement to agrochemical retention when soaked in water at 30 deg C for 24 hours, however, looking to the table on pages 29 and 30 of the instant specification, in some cases, Peridiam 104 had a lower agrochemical elution rate than the copolymer according to the instant claims, which appears to be contrary to Applicants’ alleged improvements to agrochemical retention. Regard the water permeability and germination rate argument, the copolymers taught by the prior art were known to be suitable as seed coatings, and accordingly, it would have been reasonably expected that the coatings produced from the combination above would have suitable water permeability and not negatively affect the germination rate.
Fourth, respectfully, this argument is not persuasive. While Eren does not specifically teach improved retention of agrochemicals upon soaking, the reference does teach the inclusion of DVB resulted in satisfactory stability and good dispersibility. That, combined with the teachings of Stewart and AICIS, where it was known that DVB can be included in copolymer seed coatings for improved mechanical strength and thermal stability, suggests that a stronger, more stable, and more dispersible coating would result less leaching than a weaker, less stable seed coating.
Claims 2 and 3, are rejected under 35 U.S.C. 103 as being unpatentable over Wagner et al (WO 2013166020 A1, hereinafter “Wagner”), Stewart et al (US 20070104745 A1, hereinafter “Stewart”), Eren et al (J. Therm. Anal. Calorimetry, 2020, 141:1331-1339, hereinafter “Eren”), Australian Industrial Chemicals Introduction Scheme (Full public report - Polymer of 2-propenoic acid, butyl ester, Diethenylbenzene, and ethenylbenzene, 1991, hereinafter “AICIS”), and Herold et al (WO 2016055096 A1, cited on IDS dated 08/03/2023, hereinafter “Herold”), applied to claims 1, 4, 5, 8, 10-12, 14-16, and 26 above, and further in view of Avramidis (US 20120152459 A1).
Wagner is discussed above and further teaches in one embodiment, the styrene monomer is included in an amount of about 1 wt% to about 30 wt%, and the butyl acrylate monomer is from about 50 wt% to about 90 wt% (pg. 6 ln 5-6).
Eren is discussed above and further teaches in embodiments, divinylbenzene was included in an amount ranging from 0.5-2 mass% of the total mass of the polymer (table 1).
The references do not specifically teach the styrene content of instant claims 2 or 3.
Avramidis teaches styrene and (meth)acrylate based copolymer binders that can be used as coatings (abs, ¶ 8). The (meth)acrylate polymer may be selected from butyl acrylate; other suitable monomers include divinylbenzene (¶¶ 4, 32). In embodiments, styrene was included at 53.05 parts by weight and butyl acrylate was included at 42.05 parts by weight (ex. 2-3).
Regarding the amount of butyl acrylate of claim 2, it would have been obvious to formulate the first polymer with about 50-90 wt% butyl acrylate, as taught by Wagner.
Regarding the amount of styrene of claim 2, it would have been obvious modify the amount of styrene in Wagner to other amounts known to be suitable for copolymer coatings comprising styrene and butyl acrylate, such as 53.05 wt%, as taught by Avramidis.
Regarding the amount of 1,4-diethenylbenzene of claim 2, it would have been obvious to include known amounts of 1,4-diethenylbenzene (divinylbenzene) suitable for copolymer coating composition, such as 0.5-2 wt%, as taught by Eren, where these amount were known to improve the thermal stability of copolymers comprising styrene and butyl acrylate.
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).
Regarding the amount of butyl acrylate of claim 3, it would have been obvious to formulate the first polymer with about 50-90 wt% butyl acrylate, as taught by Wagner for the same reasons discussed above.
Regarding the amount of styrene of claim 3, it would have been obvious modify the amount of styrene in Wagner to other amounts known to be suitable for copolymer coatings comprising styrene and butyl acrylate, such as 53.05 wt%, as taught by Avramidis.
Response to Arguments
Applicants assert that Eren teaches up to 2 mass% DVB, that increasing the amount of DVB increases the Tg values of the latexes of Eren, and the skilled artisan would not have been motivated to include from 35-55 wt% of the combined amount of cross linkable monomers, particularly the styrene and divinylbenzene, into the latex of Wagner as it would strongly and negatively affect the film formation.
Respectfully, this argument is not persuasive. Eren was cited for simply teaching that DVB was a known crosslinker suitable for coating compositions with satisfactory stability, good dispersibility, increased thermal stability, and was known to be included in an amount ranging from 0.5-2 mass%. The amount of styrene was known to be used at 53.05 wt% and butyl acrylate was known to range from 50-90 wt%, as taught by Wagner Avramidis above. From there, it would have been obvious to include known amounts of DVB, and in particular 1,4-diethenylbenzene, suitable for copolymer coating compositions that were known to improve the thermal stability of copolymers comprising styrene and butyl acrylate, while still having satisfactory stability and good dispersibility. There appears to be no teaching or suggestions in the cited prior art that suggest that 1,4-diethenylbenzene would strongly and negatively affect the film formation, as argued by Applicants, considering Eren teaches the formulations have good film-forming properties and Stewart teaches DVB was known to be used in seed coatings.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Wagner et al (WO 2013166020 A1, hereinafter “Wagner”), Stewart et al (US 20070104745 A1, hereinafter “Stewart”), Eren et al (J. Therm. Anal. Calorimetry, 2020, 141:1331-1339, hereinafter “Eren”), Australian Industrial Chemicals Introduction Scheme (Full public report - Polymer of 2-propenoic acid, butyl ester, Diethenylbenzene, and ethenylbenzene, 1991, hereinafter “AICIS”), and as Herold et al (WO 2016055096 A1, cited on IDS dated 08/03/2023, hereinafter “Herold”), applied to claims 1, 4, 5, 8, 10-12, 14-16, and 26 above, and further in view of Dungworth et al (US 20190216080 A1, hereinafter “Dungworth”).
The references are discussed above but do not teach wherein the seed coating further comprises zinc salt or zinc oxide.
Dungworth teaches it was known to include micronutrients, preferably zinc oxide, into polymer seed coatings, in order to provide the seed with micronutrients (abs, ¶ 150). The micronutrient is typically present from 5 to 40 wt% (¶ 150).
Regarding claim 7, it would have been obvious to modify the method made obvious above by further including zinc oxide in the coating, in order to provide the seed with micronutrients, as taught by Dungworth.
Regarding the amounts, it would have been obvious to include known of the micronutrients taught to be suitable for coatings, such as from 5 to 40 wt%, as taught by Dungworth, overlapping the claimed range. 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).
Further, it would have been well within the relative skills of the skilled artisan to routinely optimize the amount of zinc oxide in order to achieve the optimal amount of nutrients for the seed for different climates, soil types, etc. 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).
Response to Arguments
Applicants assert that independent claim 1, as amended, is patentable over Wagner in view of Eren and AICIS. Dungworth does not remedy what Wagner, Eren and AICIS lack. Thus, dependent claim 7 must be patentable for at least the same reasons.
Respectfully, this argument is not persuasive. Where claim 1 is made obvious above, the claims stand rejected for the same reasons above and of record.
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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