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 .
Summary
Claims 1-2, 4, 6-14, 16-18, 20 and 22-25 are pending in this office action. Claims 3, 5, 15, 19 and 21 are cancelled. All pending claims are under examination in this application.
Priority
The current application was filed on September 19, 2023 is a 371 of PCT/US2022/024544 filed April 13, 2022. The current application claims domestic priority to provisional patent application 63/176,966 filed on April 20, 2021.
Information Disclosure Statement
Receipt of the Information Disclosure Statements filed on December 19, 2023 (2) are acknowledged. A signed copy of both documents are attached to this office action.
Claim Objections
Claims 23 and 24 objected to because of the following informalities:
Claim 23 repeats the cultivated plants cotton and sunflower. Please remove the duplicates.Claim 24 recites surfactants (surface-active agents) which is a duplicate term.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 23 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 23 recites wherein “the” crops of cultivated plants are selected from and depends from claim 1 however, claim 1 does not recite crops therefore the claim lacks antecedent basis to claim 1.
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 1-2, 4, 6-14, 16-18, 20 and 22-25 are rejected under 35 U.S.C. 103 as being unpatentable over Ren et al. (Journal of Integrative Agriculture, 2020) in view of Gygi et al. (US2016/0050921A1).
[The Examiner is going to introduce each reference and then combine them where appropriate to reject the instant claims.]
1. Ren et al.
Ren et al. is considered the closest prior art as it teaches effects of urea mixed with nitrapyrin on leaf photosynthetic and senescence characteristics of summer maize (Zea mays L.) waterlogged in the field (see title). Furthermore, Ren et al. disclose that waterlogging is one of the major abiotic stresses in agricultural crop production. However, the application of 2-chloro-6-(trichloromethyl) pyridine (nitrapyrin) can effectually mitigate the losses of nitrogen efficiency and grain yield of summer
maize induced by waterlogging. In order to explore its role to alleviate waterlogging stress on leaf antioxidative system and photosynthetic characteristics of summer maize, a field experiment was executed to research effects of nitrapyrin application on leaf photosynthetic and senescent characteristics of waterlogged summer maize Denghai 605 (DH605) and Zhengdan 958 (ZD958). Experimental treatments consisted of waterlogging treatment that was applying only urea (WL), waterlogging treatment that was applying urea mixing with nitrapyrin (WL-N), and no waterlogging treatment that was only applying urea (NWL). Results showed that WL significantly decreased leaf area index (LAI), SPAD, photosynthetic rate (Pn), and protective enzyme activities, accelerated leaf aging, eventually led to a remarkable yield reduction by 38 and
42% for DH605 and ZD958, respectively, compared to NWL. However, the application of nitrapyrin was useful for relieving waterlogging damages on leaf photosynthetic ability. LAI, SPAD and Pn of WL-N for DH605 were 10, 19 and 12–24% higher, and for ZD958 were 12, 23 and 7–25% higher, compared to those of WL, respectively. Moreover, application of nitrapyrin effectually relieved waterlogging losses on antioxidative enzyme activities. Leaf superoxide dismutase (SOD), peroxidase (POD) and catalase (CAT) activities of WL-N were averagely increased by 24, 15 and 30%, respectively, while malondialdehyde (MDA) content was averagely decreased by 13%, compared to those of WL. Visibly, nitrapyrin application could improve leaf photosynthetic characteristics and retard leaf aging induced by waterlogging, thereby leading to a yield increase of waterlogged maize (see abstract).
2. Gygi et al.
Gygi et al. teach compositions and methods for enhancing plant growth (see title). In addition, Gygi et al. disclose that described herein are compositions comprising one or more flavonoids or derivatives for enhancing plant growth and methods for treating plants, plant parts with one or more flavonoids and derivatives thereof (see abstract).
Combination of Ren et al. and Gygi et al.
Regarding instant claim 1, Ren et al. and Gygi et al. teach a method for promoting plant growth of cultivated plants. The necessary citations of Ren et al. and Gygi et al. that pertain to instant claim 1 are presented in Table I.
Table I
Instant Claim 1
Ren et al. and Gygi et al. Citations
A method of promoting plant growth of cultivated plants, the method comprising the steps of:
Ren et al. disclose a method of increasing yield of waterlogged maize, wherein the waterlogging is one of the major abiotic stresses in agricultural crop production,
Claim 1 differs from Ren et al. in promoting plant growth of cultivated plants present in a target area. However, Gygi et al. disclose the promotion of plant growth (see title and abstract within Gygi et al.).
a.) obtaining a biostimulant composition comprising nitrapyrin in an amount of about 1% to about 50% by weight based on the total weight of the biostimulant composition;
Ren et al. disclose the method comprising waterlogging treatment that was applying urea mixing with nitrapyrin (WL-N), wherein for WL-N, 40% N fertilizer together with 1020 mL ha-1 nitrapyrin was applied at 6th leaf stage (V6), and 60% N together with 1530 mL ha-1 nitrapyrin was applied at 12th leaf stage (V12), wherein the application of nitrapyrin increases leaf physiological function of waterlogged maize, wherein the yield of WL-N was increased compared to that of waterlogging treatment that was applying only urea (WL) (see abstract; page 1587, right column - page 1588, right column; page 1593, right column; and table 1).
Additionally, Gygi et al. disclose the use of the fungicide nitrapyrin (see paragraph [0120] within Gygi et al.) within their agriculturally beneficial compositions (biostimulant) (see paragraph [0059] within Gygi et al.).
and b.) applying the biostimulant composition to a target area, wherein the biostimulant composition is applied in an amount effective to cause a biostimulating effect, and wherein said method promotes plant growth of cultivated plants present in the target area.
Gygi et al. disclose within the Examples section application of various biostimulants to crops such as wheat, cotton, corn, and soybeans in which enhanced plant growth is observed within the cultivated plants (see Examples 1-17 within Gygi et al.).
Therefore, due to the use of the fungicide nitrapyrin in both references a skilled artisan (POSITA; person of ordinary skill in the art) would combine both references to teach every limitation of instant claim 1.
The remaining instant claims within this 35 U.S.C. § 103 section are directly or indirectly dependent on instant claim 1 and are taught in full by the combination of Ren et al. and Gygi et al.
Regarding instant claims 2 and 13, Ren et al. and Gygi et al. teach wherein the amount effective to cause a biostimulating effect is from about 0.01 mg/plant to about 17 mg/plant. Gygi et al. disclose that commercial fungicides such as nitrapyrin are most suitably used in accordance with the manufacturer's instructions at the recommended concentrations (see paragraph [0139] within Gygi et al.). Thus, the soybean crop has 100,000 to 120,000 plants per acre (see PTO-892 NPL V) and a common range of (soybean) application for nitrapyrin is 0.36 kg/ha to 1.02 kg/ha (see PTO-892 NPL W). This gives an overlapping range with the instant claim 2 limitation after the conversion [1 acre = 0.4047 hectare] of ~8 mg/plant to ~23 mg/plant.
Regarding instant claim 4, Ren et al. and Gygi et al. teach wherein the biostimulant composition comprises nitrapyrin in an amount of about 12% to about 25% by weight based on the total weight of the biostimulant composition. Gygi et al. disclose that commercial fungicides such as nitrapyrin are most suitably used in accordance with the manufacturer's instructions at the recommended concentrations (see paragraph [0139] within Gygi et al.). Furthermore, nitrapyrin concentrations can range from 22%-90% (overlapping region; see PTO-892 NPL X).
Regarding instant claim 6, Ren et al. and Gygi et al. teach wherein the amount effective to cause a biostimulating effect ranges from about 10 to about 500 grams/hectare (g/ha). Gygi et al. disclose the treatment of soybean plants (see Examples 11-17 within Gygi et al.). Following the citations within instant claim 2, the range of grams/hectare becomes an overlapping region of 360 g/ha to 1020 g/ha.
Regarding instant claim 7, Ren et al. and Gygi et al. teach wherein the biostimulant composition is applied to the soil of the target area containing crops of cultivated plants that have already emerged. Gygi et al. disclose that compositions, as described herein, may be suitable for foliar application to a plant or plant part (suggesting application to the emerged plant) (see paragraph [0044] within Gygi et al.; also see the Examples 1-17 within Gygi et al.).
Regarding instant claim 8, Ren et al. and Gygi et al. teach wherein the biostimulant composition is applied using fertigation, irrigation, drenching, dripping, and/or spraying application methods. Gygi et al. disclose the applying step can be performed by any method known in the art (including both foliar and non-foliar applications). Non-limiting examples of applying to the plant or plant part include spraying a plant or plant part, drenching a plant or plant part, dripping on a plant or plant part, dusting a plant or plant part, and/or coating a seed (see paragraph [0194] within Gygi et al.).
Regarding instant claim 9, Ren et al. and Gygi et al. teach wherein the soil of the target area comprises the soil adjacent to stems and/or the root zone of the cultivated plants. Gygi et al. disclose the application of the biostimulant composition to a variety of crops (see Examples 1-17 within Gygi et al.). This can be accomplished via numerous methods known within the art (see instant claim 8).
Regarding instant claims 10 and 11, Ren et al. and Gygi et al. teach wherein the biostimulant composition is applied to plant parts of the cultivated plants in the target area using foliar application methods. Please see the citations and discussion within instant claims 7-9 for the necessary rejection text. A skilled artisan (POSITA) would be able to apply this biostimulant composition via directed application, spot application, and/or broadcast application methods.
Regarding instant claim 12, Ren et al. and Gygi et al. teach wherein the biostimulant composition is applied to the target area at an effective rate of from about 400 to about 900 mL/acre. (Following the logic from instant claim 2.) The soybean crop has 100,000 to 120,000 plants per acre (see PTO-892 NPL V) and a common range of (soybean) application for nitrapyrin is 0.36 kg/ha to 1.02 kg/ha (see PTO-892 NPL W). This gives an overlapping range with the instant claim 2 limitation after the conversion [1 acre = 0.4047 hectare] of 0.889 kg/acre to 2.52 kg/acre or 889 g/acre to 2520 g/acre, and assuming water is used as a diluent (a density of 1 g/mL for water) these values would convert to the overlapping range of 889 mL/acre to 2520 mL/acre.
Regarding instant claim 14, Ren et al. and Gygi et al. teach wherein the biostimulant composition is applied to the target area at a rate from about 0.125 to about 1.095 kg/acre based on plant densities ranging from about 25,000 to about 150,000 plants/acre. (Following the logic from instant claim 2.) The soybean crop has 100,000 to 120,000 plants per acre (see PTO-892 NPL V) and a common range of (soybean) application for nitrapyrin is 0.36 kg/ha to 1.02 kg/ha (see PTO-892 NPL W). This gives an overlapping range with the instant claim 2 limitation after the conversion [1 acre = 0.4047 hectare] of 0.889 kg/acre to 2.52 kg/acre.
Regarding instant claim 16, Ren et al. and Gygi et al. teach wherein the biostimulant composition is used in an amount from about 0.050 to about 0.438 kg/ha, based on planting densities ranging from about 10,000 to about 60,000 plants/ha. The potato crop has 25,000 to 60,000 plants per hectare (see PTO-892 NPL 2U) and a common range of potato application for nitrapyrin is 0.28 kg/ha to 1.12 kg/ha (see PTO-892 NPL 2V).
Regarding instant claim 17, Ren et al. and Gygi et al. teach wherein the target area is selected from an agricultural field, a garden, a lawn, an orchard, a vineyard, a plantation, and a combination thereof. Gygi et al. disclose the application of the biostimulant composition within an agricultural field (see Examples 1-17 within Gygi et al.). It would be within the scope of a skilled artisan (POSITA) to apply the biostimulant composition to a garden, a lawn, an orchard, a vineyard, a plantation, and a combination thereof.
Regarding instant claim 18, Ren et al. and Gygi et al. teach wherein plant growth is increased up to about 20% compared to plants that were not treated with the biostimulant composition, wherein plant growth is measured by at least one method selected from increased leaf area, increased number of leaves, increased shoot growth, increased dry shoot weight, increased dry leaf weight, or a combination thereof. Ren et al. disclose the leaf net photosynthetic rate (which translates to plant growth) of waterlogged summer maize Zhengdan 958 ZD958 were 7-25% for plants treated with nitrapyrin as compared to those not treated but waterlogged (see page 1589, section 3.4, left column within Ren et al.). The Examiner is relying on the upper range (>20%) from above. Furthermore, the net photosynthetic rate applies to all aspects of plant growth.
Regarding instant claim 20, Ren et al. and Gygi et al. teach wherein plant growth further comprises increasing plant vigor and wherein plant vigor is increased by up to 20% compared to the plant health of untreated plants, wherein plant vigor is measured in terms of at least one of increased water uptake and/or efficiency, increased nutrient uptake and/or efficiency, increased plant size or growth rate, improved chlorophyll content of leaves, and/or improved quality of fruit, grain, or vegetable. Ren et al. disclose that the chlorophyll content (soil plant analyzer development; SPAD; see PTO-892 NPL 2W) of waterlogged summer maize Zhengdan 958 ZD958 increased by 23% upon treatment with nitrapyrin mixed with urea (WL-N) compared with waterlogged treatment with urea (WL) (see page 1589, left column, section 3.3 within Ren et al.). Therefore, indicating increased vigor within the summer maize.
Regarding instant claim 22, Ren et al. and Gygi et al. teach wherein the biostimulant composition is applied at least once during the vegetative/plant development time period of the cultivated plants. Gygi et al. disclose the applying step is repeated (e. g., more than once, as in the contacting step is repeated twice, three times,
four times, five times, six times, seven times, eight times, nine times, ten times, etc.) (see paragraph [0194] within Gygi et al.). Therefore, a skilled artisan would apply the biostimulant composition during the development time period of the cultivated plant.
Regarding instant claim 23, Ren et al. and Gygi et al. teach wherein the crops of cultivated plants are selected from the group consisting of barley, wheat, rye, oats, sorghum, triticale, cotton, oilseed rape, sunflower, maize, rice, soybeans, sugar beet, sugar cane, beet, fodder beet, pomes, stone fruit, apples, pears, plums, peaches, almonds, cherries, strawberries, raspberries, blackberries, beans, lentils, peas, peanuts, mustard, sunflowers, cotton, flax, hemp, jute, spinach, lettuce, asparagus, cabbages, carrots, onions, tomatoes, potatoes, sweet potatoes, yams, paprika, winter wheat, spring wheat, winter barley, spring barley, triticale, cereal rye, winter durum wheat, spring durum wheat, winter oat, spring oat, fodder cereals, ray-grass, cocksfoot, fescue, timothy, and combinations thereof. Gygi et al. disclose crops such as wheat, corn, and soybeans (see Examples 1-17 within Gygi et al.).
Regarding instant claim 24, Ren et al. and Gygi et al. teach wherein the biostimulant composition is formulated into a formulation comprising one or more auxiliaries selected from extenders, carriers, solvents, surfactants (surface-active agents), stabilizers, antifoaming agents, anti-freezing agents, preservatives, antioxidants, viscosity modifiers, suspending agents, light absorbers, corrosion inhibitors, fragrances, pH-modifying substances, glidants, lubricants, plasticizers, complexing agents, colorants, thickeners, solid adherents, fillers, wetting agents, dispersing agents, lubricants, anticaking agents, deformers, and diluents. Gygi et al. disclose the auxiliaries surfactants, preservatives, carriers, and wetting agents (see paragraph [0059] within Gygi et al.).
Regarding instant claim 25, Ren et al. and Gygi et al. teach wherein the biostimulant composition is in a form selected from a soluble liquid (SF), an emulsifiable concentrate (EC), a wettable powder (WP), a dry flowable (DF), a flowable (F), a water soluble powder (SP), an ultra-low-volume concentrate (ULV), a suspension concentrate (SC), an aqueous suspension (AS), a microencapsulated suspension (ME or MT), a capsule suspension (CS), a granule (G), a pellet (P), a ready-to-use formulation, a premix formulation, or a tank mix formulation. Gygi et al. disclose that the compositions disclosed comprise a carrier and one or more flavonoids as described herein. In certain
embodiments, the composition may be in the form of a liquid, a gel, a slurry, a solid, or a powder (wettable powder or dry powder). In a particular embodiment, the composition is a liquid composition. Liquid compositions, as described herein, may be suitable for foliar application to a plant or plant part (see paragraph [0044] within Gygi et al.).
Analogous Art
The Ren et al. and Gygi et al. references are directed to the same field of endeavor as the instant claims, that is, a method for promoting plant growth of cultivated plants.
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 biostimulant and nitrapyrin composition disclosed by Ren et al., using the teachings of Gygi et al. to promote plant growth of cultivated plants present in a target area.
One would have been motivated to do so to obtain a biostimulant and nitrapyrin composition that is applied to a variety of crops and contains additional excipients, as suggested by Gygi et al.
Starting with Ren et al., the skilled person only had to try the necessary claim limitations disclosed by Gygi et al. The combination of Ren et al. and Gygi et al. would allow one to arrive at the present application without employing inventive skill. This combination of the biostimulant and nitrapyrin composition taught by Ren et al. along with the use of the necessary claim limitations taught by Gygi et al. would allow a research and development scientist (POSITA) to develop the invention taught in the instant application. promote plant growth of cultivated plants present in a target area
It would have only required routine experimentation to modify the biostimulant and nitrapyrin composition disclosed by Ren et al. with the use of the necessary claim limitations taught by Gygi et al. This combined modification would have led to an enhanced the method of promoting plant growth with a biostimulant and nitrapyrin composition that would be beneficial for consumers.
In the context of instant method claims 1-2, 4, 6-14, 16-18, 20 and 22-25 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 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.
Conclusion
No claims are allowed.
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/JOHN W LIPPERT III/Examiner, Art Unit 1615
/DANAH AL-AWADI/Primary Examiner, Art Unit 1615