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 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.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-7 and 11-15 are rejected under 35 U.S.C. 103 as being unpatentable over CN 104555964A in view of CN 109437980A. CN 104555964A discloses a method for producing potassium acid phosphate by reacting phosphoric acid with potassium dihydrogen phosphate. (See Paragraphs [0010] through [0013] of the English translation.) CN 104555964A teaches in Paragraph [0005] that because potassium acid phosphate is strongly acid and has excellent water solubility, it can be used as an agricultural fertilizer and can be dissolved in water and then delivered to the place where fertilizer is needed through drip irrigation pipes. The differences between the method disclosed by CN 104555964A, and that recited in claims 1-7 and 11-15, are that CN 104555964A does not disclose that the composition has a pH between 1 and 4, CN 109437980A discloses in Paragraph [0004] that potassium dihydrogen phosphate has a pH of about 2.3 in a 0.4% aqueous solution and, because it is very water-soluble, is mainly used as a raw material for acidic water-soluble fertilizers or directly as an acidic water-soluble fertilizer. It would have been obvious from CN 109437980A to provide a pH between 1 and 4 for the aqueous solution of CN 104555964A. One of ordinary skill in the art would have been motivated to do so, since CN 104555964A teaches in Paragraphs [0004] and [0005] that potassium acid phosphate is strongly acidic, and CN 109437980A discloses in Paragraph [0004] that a pH of 2.3 is typical in a 0.4% aqueous solution. The aqueous solution of potassium acid phosphate disclosed by CN 104555964A and CN 109437980A would comprise am mixture of phosphoric acid and dihydrogen phosphate, since CN 104555964A discloses in Paragraph [0004] that the molecular structure of potassium acid phosphate is KH2PO4.H3PO4.
Regarding claims 3 and 4, it would have been within the level of skill of one of ordinary skill in the art to determine a suitable P/K ratio of the composition of CN 104555964A.
Regarding claim 5, it appears that the composition of CN 104555964A would consist of the mixture of phosphoric acid, dihydrogen phosphate and water, since there is no indication that other components are present.
Regarding clam 7, the composition of CN 104555964A would be used as a biostimulant and elicitor product and for controlling pathogens to no less extent than would the composition of CN 104555964A, when applied to plants.
Regarding claim 12, the uses recited therein would be inherent in the composition of CN 104555964A, since the composition of CN 104555964A comprises a mixture of phosphoric acid and dihydrogen phosphate.
Regarding claims 13 and 14, it would be within the level of skill of one of ordinary skill in the art suitable application durations and rates for the composition of CN 104555964A
Regarding claim 15, CN 104555964A discloses in Paragraph [0005] that the composition is applied through drip irrigation.
Claims 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over CN 104555964A in view of CN 109437980A, as applied to claim 1 above, and further in view of Brown et al (US 9,908,821). It would have been further obvious from Brown et al to include zinc sulfate in the composition of CN 104555964A. One of ordinary skill in the art would have been motivated to do so, since Brown et al disclose in col. 1, lines 40-42 that zinc is needed by plants for regulating plant growth and in carbohydrate and sugar metabolism, with a further disclosure in the paragraph bridging columns 3 and 4 of zinc sulfate as a suitable micronutrient in combination with metal phosphates.
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.
Claims 1-15 are 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. It is indefinite as to what step(s) would be included in the “use” of the composition.
In claim 13, “preferentially” renders the scope of the claim vague and indefinite, since it is not clear whether the limitation following this term is positively recited or is merely an example of the broader genus. Also in claim 13, it is indefinite as to whether “any of claims 1 to 10” would be limited to any one of claims 1 to 10, or whether it could include multiple claims of claims 1 to 10.
Conclusion
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 Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/WAYNE A LANGEL/ Primary Examiner, Art Unit 1736
Prosecution Insights