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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on June 11, 2026 has been entered.
Summary
Claims 1-19 are pending in this office action. All pending claims are under examination in this application.
Priority
The current application was filed on June 16, 2023 is a 371 of PCT/EP2021/87254 filed on December 22, 2021. The current application claims foreign priority to BE2020/5965 filed on December 22, 2020.
Information Disclosure Statement
Receipt of the Information Disclosure Statement filed on June 11, 2026 is acknowledged. A signed copy of the document is attached to this office action.
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 non-obviousness.
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 1-15 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN103299996A) in view of Lee et al. (US4808208A), Yang et al. (RSC Advances, 2018), and Jones et al. (WO2014/064121A2) as evidenced by Petrella et al. (WO2014/074444A1).
[The Examiner is going to introduce each reference and then combine them where appropriate to reject the instant claims.]
1. Zhang et al.
Zhang et al. is considered the closest prior art as it teaches the use of chitosan oligosaccharide as a crop safener (see title). Furthermore, Zhang et al. disclose that the invention relates to a use of a chitosan oligosaccharide as a crop safener, and also provides a method for controlling the phytotoxicity of crops through applying a composition including the chitosan oligosaccharide. The method is characterized in that treatments of all growth stages of the crops by using the composition comprise the seed soaking treatment of crop seeds by the using the composition, or the application of the composition to the crops in the seedling stage, or the application of the composition to the crops in the flowering stage, or the application of the composition to the crops after the flowering stage, or the sequential application of the composition to any above two of the crop seeds, and the crops in the seedling stage, before the flowering stage and after the flowering stage, or the application of the composition after the application of a pesticide to the crops, or the application of the composition after the phytotoxicity suffering of the crops, or the application of the composition before the expected pesticide spray, and the weight percentage of the chitosan oligosaccharide in the composition is 0.0015-0.020%. In the invention, it is found that the chitosan oligosaccharide can effectively control the phytotoxicity occurrence of the crops, improve the crop output and improve the crop quality (see abstract).
2. Lee et al.
Lee et al. teach phenolic safeners for glyphosphate herbicides (see title). In addition, Lee et al. disclose glyphosate herbicides are used for weed control in crops. It has been found that the desired crop plants can be protected from the herbicidal effect by providing a pretreatment so that the crop plants have assimilated a phenolic compound found to give a safening effect (see abstract).
3. Yang et al.
Yang et al. teach preparation of ferulic acid-grafted chitosan using recombinant bacterial laccase and its application in mango preservation (see title). Additionally, Yang et al. disclose that to improve the antioxidant and antibacterial properties of chitosan, recombinant bacterial laccase from Bacillus vallismortis fmb-103 (fmb-rl103) was used to catalyze ferulic acid grafting. The grafted chitosan was characterized using UV-vis and FT-lR techniques. DPPH free radical scavenging results indicated that the antioxidant properties of the grafted chitosan (FA-g-CS) were significantly improved. Meanwhile, the antibacterial properties against E. coli, S. aureus, B. subtilis, and M. guilliermondii were also improved. Furthermore, FA-g-CS was applied to mango preservation as a coating, which improved the sensory qualities of mango Mangifera indica L. The disease incidence of mangoes coated with FA-grafted medium and high molecular weight chitosan were 0 and 5%, respectively. The respiratory peak was
delayed more than 4 days, and the titratable acidity and ascorbic acid concentration were all enhanced POD and CAT activities in FA-g-CS coated mangoes were higher than those coated with chitosan samples with a lower hydrogen peroxide concentration (see abstract).
4. Jones et al.
Jones et al. teach improvements relating to surface treatment compositions (see title). Also, Jones et al. disclose that a benefit agent delivery particle, comprising a benefit agent, and having at the outer surface of the particle one or more delivery aids which include a chitosan salt, which comprises a chitosan component and an anion, wherein the anion of said salt is an organic anion with a molecular weight of greater than 60, and wherein the chitosan component comprises a backbone which comprises amine groups provides a deposition benefit on a substrate such as skin, fabric and particularly hair (see abstract).
Combination of Zhang et al., Lee et al., and Yang et al.
Regarding instant claim 1, Zhang et al., Lee et al., and Yang et al. a method for reducing phytotoxicity of an herbicide and/or fungicide towards a targeted plant. The necessary citations of Zhang et al., Lee et al., and Yang et al. that pertain to instant claim 1 are presented in Table I.
Table I
Instant Claim 1
Zhang et al., Lee et al., and Yang et al.
Citations
A method comprising: providing a composition comprising a ferulated chitosan;
Zhang et al. disclose a chitosan oligosaccharide composition as a crop safener (see claim 1 within Zhang et al.).
Lee et al. disclose a phenolic compound such as ferulic acid (see column 2, lines 47-49 within Lee et al.) and its use as a protectant of crop plants (see column 1, lines 51-56 within Lee et al.)
Yang et al. disclose the grafting of ferulic acid within the chitosan polymer to improve the overall antioxidant and antibacterial properties (see title and abstract within Yang et al.).
applying said composition to a targeted plant, to soil in contact with said targeted plant, and/or to plant seeds of said targeted plant;
Zhang et al. use ungrafted chitosan (see claims within Zhang et al.). Zhang et al. disclose Examples of the application of the chitosan composition to crop seeds (see Examples and claims within Zhang et al.).
Furthermore, Lee et al. and Yang et al. use their compounds of choice for either a protectant of crop plants (see above within Lee et al.) or on the tropical fruit mango (see abstract within Yang et al.).
and reducing phytotoxicity of an herbicide and/or fungicide towards said targeted plant.
Zhang et al. disclose the inventors have found that the occurrence of phytotoxicity can be
effectively prevented and treated by applying a chitosan oligosaccharide composition (see paragraph [0006] within Zhang et al.).
The ferulic acid grafted chitosan would have enhanced antioxidant and antibacterial characteristics upon application as compared to the chitosan composition alone used by Zhang et al. Therefore, the grafted chitosan would afford reduced phytotoxicity of an herbicide and/or fungicide towards said targeted plant.
Motivation to combine these references would be to use:
A. the Zhang et al. reference, as a base template for a chitosan composition as a crop safener.
B. the Lee et al. reference, citing an example of ferulic acid as a crop protectant.
C. the Yang et al. reference, illustrating an example of positive properties of ferulic acid grafted chitosan for one crop.
Expansion of the crop set for the ferulic acid grafted chitosan would be obvious to a skilled artisan based on these three references. The single references do not fully support the use of ferulic acid grafted chitosan within the agricultural arts, however the combination of all the references solidify the 35 U.S.C. §103 rejection.
Therefore, a skilled artisan (POSITA; person having ordinary skill in the art) would be motivated and under routine experimentation to graft ferulic acid into the chitosan polymer chain for its antioxidant, antibacterial, and crop safener properties. A skilled artisan (POSITA) would use the Zhang et al., Lee et al., and Yang et al. references to teach every element of instant claim 1.
The remaining instant claims within this 35 U.S.C. § 103 section are either directly or indirectly dependent on instant claim 1 and are taught in full by the combination of Zhang et al., Lee et al., and Yang et al.
Regarding instant claims 3 and 4, Zhang et al., Lee et al., and Yang et al. teach that by reducing the phytotoxicity of a herbicide and/or fungicide comprises increasing the harvest yield of said targeted plant. Zhang et al., which reports using a chitosan composition, disclose the increase in the harvest yield of rice (35.6%), grapes (25.8%), and watermelon (15.4%) as compared to a control (see Example 1 within Zhang et al.). This result directly correlates with reducing the phytotoxicity of a herbicide and/or fungicide to increasing plant seed germination and enhancing plant seedlings growth (see claim 10 and paragraph [0013] within Zhang et al.). As described within the discussion and citations of instant claim 1, the use of the ferulic acid grafted chitosan would have enhanced antioxidant and antibacterial characteristics upon application as compared to the chitosan composition alone used by Zhang et al. Therefore, the grafted chitosan would afford reduced phytotoxicity of an herbicide and/or fungicide towards said targeted plant.
Regarding instant claims 5 and 7, Zhang et al., Lee et al., and Yang et al. teach that the ferulated chitosan has a concentration of between 0.01 to 100,000 ppm based on the total weight of said composition. Yang et al. disclose the synthesis of grafted ferulated chitosan in the concentration range of ferulic acid (FA) of 1 mM to 20 mM to obtain the optimal degree of substitution at a concentration of FA of 10mM (see Figure 1d, pg 6760 within Yang et al.). Zhang et al. disclose the use of a 5wt% chitosan oligosaccharide solution was diluted with water to the corresponding application concentration. The concentration was calculated as weight percent concentration. In the result record, 50 ppm represented a weight percent concentration of 0.005%, which means that the 5wt% chitosan oligosaccharide solution was diluted 1000 times (see paragraph [0034] within Zhang et al.). Therefore, a skilled artisan (POSITA) would attempt to maintain the 50 ppm range disclosed by Zhang et al. for application of the crop safener (ungrafted chitosan).
Regarding instant claim 8, Zhang et al., Lee et al., and Yang et al. indirectly teach that, the composition comprises a rheological modifier, wherein said rheological modifier has a concentration of between 0.10 and 30 wt.% based on the total weight of said composition. Although Zhang et al., Lee et al., and Yang et al. do not mention viscosity directly, having the appropriate viscosity is within the scope of a skilled artisan (POSITA). Zhang et al. disclose the application of a chitosan composition as a crop safener (see title, abstract, and claims within Zhang et al.). If the FA-grafted-chitosan composition is outside of the application viscosity, then a modifier would be used by a skilled artisan (POSITA) to return the composition to the appropriate range for application purposes.
Regarding instant claims 11 and 19, Zhang et al., Lee et al., and Yang et al. teach that the composition has a pH of between 4.0 and 7.0. Yang et al. disclose that the optimal pH used to synthesize the FA-grafted-chitosan is 6.5 (see page 6767, left column Conclusions; within Yang et al.). Therefore, the suggested pH level by Yang et al. would be used by a skilled artisan (POSITA).
Regarding instant claims 12 and 13, Zhang et al., Lee et al., and Yang et al. teach wherein the composition is applied to the targeted plant before, simultaneously with, or after application of a herbicide and/or fungicide. Zhang et al. disclose the method (of chitosan application) is characterized in that treatments of all growth stages of the crops by using the composition comprise the seed soaking treatment of crop seeds by the using the composition, or the application of the composition to the crops in the seedling stage, or the application of the composition to the crops in the flowering stage, or the application of the composition to the crops after the flowering stage, or the sequential application of the composition to any above two of the crop seeds, and the crops in the seedling stage, before the flowering stage and after the flowering stage, or the application of the composition after the application of a pesticide to the crops, or the application of the composition after the phytotoxicity suffering of the crops, or the application of the composition before the expected pesticide spray, and the weight percentage of the chitosan oligosaccharide in the composition is 0.0015-0.020% (see abstract). In addition, Zhang et al. disclose a pesticide composition used as a crop safener, wherein the pesticide composition comprises chitosan oligosaccharide, and the weight percentage of chitosan oligosaccharide in the pesticide composition is 0.0085%-0.0195% or 0.0015%-0.0165% (see paragraph [0010] within Zhang et al.). Furthermore, a pesticide is within the scope of a skilled artisan (POSITA) to include both herbicides and/or fungicides. The weight percent supplied by Zhang et al. corresponds to 1:51 (0.0195%) and 1:667 (0.0015%). As described within the discussion and citations of instant claim 1, the use of the ferulic acid grafted chitosan would have enhanced antioxidant and antibacterial characteristics upon application as compared to the chitosan composition alone used by Zhang et al. Therefore, the grafted chitosan would afford reduced phytotoxicity of a herbicide and/or fungicide towards said targeted plant.
Regarding instant claim 14, Zhang et al., Lee et al., and Yang et al. teach a selected herbicide and/or fungicide. Zhang et al. disclose the pesticide propiconazole [fungicide] (see PTO-892 NPL X). Zhang et al. disclose this pesticide in paragraph [0033] within the third column (propiconazole 15ppm) of the original Chinese document. Instant claim 14 lists the broad class of triazole (29) which includes propiconazole.
Regarding instant claim 15, Zhang et al., Lee et al., and Yang et al. teach the reducing of the phytotoxicity of a herbicide and/or fungicide comprising improving the combating of weed in a crop of the targeted plant. Yang et al. disclose the grafting of ferulic acid within the chitosan polymer to improve the antioxidant and antibacterial properties (see title and abstract within Yang et al.). Therefore, application of the FA-grafted-chitosan on the crop of choice would reduce the phytotoxicity of a herbicide and/or fungicide and improve the overall weed killing ability of the material. Zhang et al. disclose a reduction of the phytotoxicity on crops treated with chitosan alone and ungrafted (see claims within Zhang et al.).
Regarding instant claim 18, Zhang et al., Lee et al., and Yang et al. teach said ferulated chitosan comprises an oligomeric and/or polymeric compound
following formula (I):
PNG
media_image1.png
200
400
media_image1.png
Greyscale
which compound comprises a D-glucosamine moiety (a), a ferulated D-glucosamine moiety (b), an acetylated D-glucosamine moiety (c), wherein said moieties are randomly distributed in said compound following a ratio a:b:c, wherein
a+b+c > 15;
b / (a+b+c) < 0.10; and
c / (a+b+c) < 0.30;
and wherein d = 1, 2, or 3.
Commercially available chitosan from Fisher Scientific is 85% deacetylated. A skilled artisan (synthetic organic chemist / polymer chemist) could adjust the stoichiometry such that 2 d subunits (FA-grafted-chitosan) are targeted. Therefore, assuming 50 (42 deacetylated units / 8 acetylated units) repeating units, a+b+c = 42+2+8 = 52>15; b / (a+b+c) = 2 / 52 = 0.04 which is less than 0.10; and c / (a+b+c) = 8 / 52 = 0.15 which is less than 0.30. All of these numbers meet the claim limitations of instant claim 18.
Combination of Zhang et al., Lee et al., and Yang et al. as evidenced by Petrella et al.
Regarding instant claim 2, Zhang et al., Lee et al., and Yang et al. as evidenced by Petrella et al. teach that reducing the phytotoxicity of a herbicide and/or fungicide comprises lowering anthocyanin induction in the targeted plant. Petrella et al. disclose that many herbicides are derivatives or mimics of plant hormones, and many times their application will result in anthocyanin induction prior to plant death. Applying low rates of natural hormones or various synthetic derivatives has the potential to further enhance production (see paragraph [00113] within Petrella et al.). Thus, the addition of a crop safener such as grafted chitosan (see Table I) would result in reducing the phytotoxicity of an herbicide and/or fungicide, and lowering anthocyanin induction in the targeted plant.
Combination of Zhang et al., Lee et al., Yang et al., and Jones et al.
Regarding instant claims 6 and 10, Zhang et al., Lee et al., Yang et al., and Jones et al. teach where the composition comprises a water-insoluble solvent and water, wherein said composition is an oil-in-water emulsion having an oil to water ratio of between 1:20 to 20:20. Zhang et al. disclose the use of a microemulsion (see paragraph [0014] within Zhang et al.).
Jones et al. disclose the use of chitosan relating to surface treatment compositions (see title and abstract within Jones et al.) such as within agriculture. Thus, Jones et al. is analogous art that would be consulted by a skilled artisan (POSITA). Jones et al. disclose an emulsion (see page 20, line 8) in which the oily or fatty material is suitably present at a level of from 0.05 wt% to 10 wt% (see page 39, line 11 within Jones et al.) [This translates to an overlapping ratio of 1:20 to 1:10]. Additionally, Jones et al. disclose that preferred pro-fragrance food lipids include olive oil, palm oil, canola oil, squalene, sunflower seed oil, wheat germ oil, almond oil, coconut oil, grape seed oil, rapeseed oil, castor oil, corn oil, cottonseed oil, safflower oil, groundnut oil, poppy seed oil, palm kernel oil, rice bran oil, sesame oil, soybean oil, pumpkin seed oil, jojoba oil and mustard seed oil (see page 15, lines 25-29 within Jones et al.).
Regarding instant claim 9, Zhang et al., Lee et al., Yang et al., and Jones et al. teach that the composition comprises a hydrophilic and/or a lipophilic surfactant, wherein said hydrophilic and/or lipophilic surfactant have a concentration of between 0.01 and 10.00 wt.% based on the total weight of said composition. Jones et al. disclose the use of a surfactant (see page 5, line 10 within Jones et al.) having a concentration between 0-20 wt% (see page 23, line 16 within Jones et al.).
Analogous Art
The Zhang et al., Lee et al., Yang et al., and Jones et al. as evidenced by Petrella et al., references are directed to the same field of endeavor as the instant claims, that is, a method, comprising: providing a composition comprising a ferulated chitosan; applying said composition to a targeted plant, to soil in contact with said targeted plant, and/or to plant seeds of said targeted plant; and reducing phytotoxicity of an herbicide and/or fungicide towards said targeted plant.
Obviousness
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the chitosan oligosaccharide composition as a crop safener disclosed by Zhang et al., using the teachings of Lee et al., Yang et al., and Jones et al. as evidenced by Petrella et al. to incorporate the necessary claim limitations. Starting with Zhang et al., the skilled person only had to try the necessary claim limitations disclosed by Lee et al., Yang et al., and Jones et al. as evidenced by Petrella et al. The combination of Zhang et al., Lee et al., Yang et al., and Jones et al. as evidenced by Petrella et al. would allow one to arrive at the present application without employing inventive skill. This combination of the chitosan oligosaccharide composition as a crop safener taught by Zhang et al. along with the use of the necessary claim limitations taught by Lee et al., Yang et al., and Jones et al. as evidenced by Petrella et al. would allow a research and development scientist (POSITA) to develop the invention taught in the instant application. It would have only required routine experimentation to modify the chitosan oligosaccharide composition as a crop safener disclosed by Zhang et al. with the use of the necessary claim limitations taught by Lee et al., Yang et al., and Jones et al. as evidenced by Petrella et al. This combined modification would have led to an enhanced composition for reducing phototoxicity of an herbicide and/or fungicide that would be beneficial for consumers.
In the context of instant method claims 1-16 and 18-19 the desired purpose defines an effect that arises from and is implicit in the method step(s). Thus, where the purpose is limited to stating a technical effect that inevitably occurs during the performance of the claimed method step(s), and is therefore inherent in that/those step(s), that technical effect is not limiting to the subject-matter of the claim. Thus, the present method claim, defining the application/use of the composition according to the composition taught in the prior art and defining its purpose as "use", is anticipated by any document of the state of the art describing a method of application/use although not mentioning this specific use.
Response to Arguments
Applicant's arguments filed June 11, 2026 have been fully considered but they
The Examiner thanks the Applicant for filing a Terminal Disclaimer over co-pending Application No. 18/268,211. Therefore, the Double Patenting rejection is withdrawn from the record.
Furthermore, the claim amendments did not necessitate the Examiner to use a new ground of rejection. [The Aljawish et al. citation was withdrawn from the record due to the cancellation of instant claim 16.]
Applicant Argument: Applicant argues that a skilled artisan would not be motivated to graft ferulic acid into the chitosan polymer chain for its antioxidant, antibacterial, and crop safener properties.
Examiner’s Rebuttal: Instant claim 1 is rejected under 35 U.S.C. §103 using three references, Zhang et al., Lee et al., and Yang et al. Motivation to combine these references would be to use:
A. the Zhang et al. reference, as a base template for a chitosan composition as a crop safener.
B. the Lee et al. reference, citing an example of ferulic acid as a crop protectant.
C. the Yang et al. reference, illustrating an example of positive properties of ferulic acid grafted chitosan for one crop.
Expansion of the crop set for the ferulic acid grafted chitosan would be obvious to a skilled artisan based on these three references. The single references do not fully support the use of ferulic acid grafted chitosan within the agricultural arts, however the combination of all the references solidify the 35 U.S.C. §103 rejection.
All instant claim 1 limitations are mapped to the prior art of record. Based on the teachings of the three references there is a reasonable expectation of success.
The Examiner again thanks the Applicant for citing the dos Santos et al. reference within the Remarks Section of the reply. The negative effects within dos Santos et al. of ferulic acid do not overcome the Yang et al. reference where the ferulic acid grafted chitosan is used on a tropical fruit for preservation purposes and there resulting positive conclusions of the authors (see page 6767, left column, Conclusions within Yang et al.).
Applicant Argument: Applicant argues that the surprising effect observed by the inventors is strong enough to overcome the art of record.
Examiner’s Rebuttal: The Examiner respectfully disagrees. Evidence of unexpected results must be weighed against evidence supporting prima facie obviousness in making a final determination of the obviousness of the claimed invention. In re May, 574 F.2d 1082, 197 USPQ 601 (CCPA 1978) (Claims directed to a method of effecting analgesia without producing physical dependence by administering the levo isomer of a compound having a certain chemical structure were rejected as obvious over the prior art. Evidence that the compound was unexpectedly nonaddictive was sufficient to overcome the obviousness rejection. Although the compound also had the expected result of potent analgesia, there was evidence of record showing that the goal of research in this area was to produce an analgesic compound which was nonaddictive, enhancing the evidentiary value of the showing of nonaddictiveness as an indicium of nonobviousness.). [see M.P.E.P. 716.02(c)]. In this instance, the prior art of record is stronger than the unexpected results.
Therefore, the Examiner has maintained the 35 U.S.C. § 103 rejection of instant claims 1-15 and 18-19.
Conclusion
No claims are allowed.
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/JOHN W LIPPERT III/Examiner, Art Unit 1615 /Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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