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 .
Information Disclosure Statement
The IDS’s filed on 7/9/2026 and 5/29/2026 have been considered. See the attached PTO 1449 form.
Status of Claims
Receipt of Remarks/Amendments/Declaration filed on 7/9/2026 is acknowledged. Claims 10-11 and 28-32 are currently pending and under examination.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Note: This is a second non-final office action that is prompted by further consideration of the instant claims and the prior art.
New/Maintained Claim Objection(s) / Rejection(s)
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 10-11 and 28-32 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.
Claims 10 and 11 recite that the gelling solution consists of a dry blend wherein the dry blend is added to water to form a gelling solution, wherein the solution comprises additive. It is unclear as to what exact components the gelling solution consists of. Does the gelling solution consist of the dry blend dissolved in water and everything else is excluded? Does the gelling solution also include the additives recited in the claims? It is also unclear if the gelling solution excludes additional components not recited in the claims due the consisting of language in the preamble because the claims in the main body also recites the solution “comprises” which suggests additional components not recited in the claims are not excluded. Thus, the metes and bounds of the claims are indefinite because the claims make it unclear what is excluded and what is not excluded from the claims.
Claims 10 and 11 recite the solution comprises copper. The examiner interprets the copper recited in the claim to be elemental copper as the claim does not recite copper ion or salt forms of copper. Elemental copper is a metal which cannot be dissolved in water to form a solution. Thus, it is unclear how the solution includes copper because copper is a metal which cannot be dissolved in water to form a solution.
Claims 28-32 are included in the rejection as they depend on a rejected base claim and do not clarify the issues discussed above.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 28 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 28 recites the low methoxyl pectin is a polysaccharide having a backbone of D-galacturonic acid monomer units. Claim 28 depends from claim 10 which recites the low-methoxyl pectin that is a polysaccharide having a backbone of repeating D-galacturonic acid monomer units and monomer units that are L-rhamnose, 3-deoxy- D-manno-oct-2-ulsonic acid (KDO), a D-galactose, L-fucose, D-xylose, D-glucoronic acid, L-galactose, L-arabinopyranose, L-arabinofuranose, D-apiose, or L-aceric acid. The recitation low methoxyl pectin is a polysaccharide having a backbone of D-galacturonic acid monomer units in claim 28 improperly broadens the scope of claim 10 because claim 28 requires the pectin having two different monomer units whereas claim 28 broadly recites only the D-galacturonic acid monomer units. As such, claim 28 fails to further limit the subject matter of the claim upon which it depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
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.
Claims 10-11 and 28-32 are rejected under 35 U.S.C. 103 as being unpatentable over Shepard et al. (US2673157) in view of Norziah et al. (Food Hydrocolloids, 2001, 15(4-6), 491-498) and Food Additives (https://foodadditives.net/preservatives/calcium-disodium-edta/; Feb. 6, 2020) as evidenced by Liles et al. (WO2016054222) and Crofters (https://www.ams.usda.gov/sites/default/files/media/Pectin%20%28low-methoxy%29.pdf).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Shepard teaches blends which consist of and/or comprise pectin, sugar and calcium in the form of ions which are mixed with liquids such as water (which forms gelling solution) and which gel and wherein these blends, e.g. the pectin and sugar can be in a solid form/dry form (claims; Example I; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive). Shepard teaches that it was known to use calcium salts (or its equivalent in the form of dry milk) to form gels with pectin, specifically low methoxyl-pectin and sugar (Col. 2, ln. 28-Col. 3, ln. 35; claims; Example I; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive).
Shepard further teaches wherein the calcium in the blend/formulation is preferably in the form of milk and/or milk powder/dry milk which they teach is an equivalent to calcium salts (Col. 4, ln. 54-58; claims; Example I; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive; Col. 2, ln. 28-Col. 3, ln. 35).
Shepard teaches that their pectin is low methoxyl pectin and as evidenced by Liles which teaches synthetic gels made of/comprising pectin, specifically low ester pectin which include the claimed low methoxyl pectin, which is a polysaccharide having a backbone of D-galacturonic acid, which means that the low methoxyl pectin of Shepard reads on the claimed low-methoxyl pectin (see Liles: abstract; claims 1, 4-5; [0027-0032]; [0049-0050]; [0058]; [0004]; [0048-0054]; [0061-0062]; [0064]; [0071]; See Shepard: claims; Examples I-II, etc.; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive). Shepard teaches that their pectin is low methoxyl pectin and as evidenced by Crofters: pectin is a plant cell wall polysaccharide which contains galacturonic acid monomers that are interrupted with L-rhamnose, as well as D-xylose, etc. in side chains monomers, which means that the low methoxyl pectin of Shepard reads on the monomers claimed as it would naturally contain L-rhamnose, etc. (See Crofters: pg. 7/23 pectin definition; See Shepard: claims; Examples I-II, etc.; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive).
Shepard teaches wherein the sugar is preferably sucrose which means that the sugar comprises glucose, and is a blend of glucose and fructose as instantly claimed (Col. 4, ln. 31-34; Examples; Claims).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Shepard does not teach wherein the blend comprises the claimed percentages of pectin and sugar and/or the claimed amounts of pectin, sugar, and milk. Shepard does teach wherein their dry blend or pectin and sugar comprises about 10% pectin to about 90% sugar which is close to the claimed amounts of about 18% pectin to about 78% sugar and wherein the preferred calcium source is milk/milk powder and is present in amounts of 10 to 40 mg of calcium per gram of low methoxyl pectin and specifically wherein the dry milk is about 3 to about 20 parts of dried milk per part of low methoxyl pectin and further teaches that the amount of pectin can be varied considerably depending on whether a weak or firm gel is desired (claims; Example I; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive). However, these deficiencies are also addressed by Norziah.
Norziah teaches that it is known to form gels with pectin, sucrose, and calcium and that it is known to vary the amounts of the pectin, sugar and calcium in order to form gels with desired/different viscosities, etc. (see entire document; abstract; Conclusion section;).
Shepard does not teach the blend further includes an additive such as the ones recited in the instant claims. Food Additives address this deficiency.
Food Additives teaches use of calcium disodium EDTA, a salt of EDTA, in food wherein EDTA is used as preservative. Food Additives teaches that EDTA can be safely used as food additive (i.e. as preservative).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have formed the claimed pectin, sugar, and calcium blends for forming gels with the claimed percentages of pectin, sugar and calcium because it was known to optimize the amounts of pectin, sugar, and calcium in these pectin blends for forming gels in order to control/develop gels having the desired viscosity, etc. as is discussed above with respect to the teachings of Shepard and Norziah. Thus, it would be obvious to optimize the blend as taught by Shepard and Norziah to contain the claimed amounts of pectin, sugar and calcium in order to afford pectin blends which achieve the desired gelling consistency when mixed with liquids/water because it was known to optimize the amounts of pectin, sugar, etc. in pectin blends for forming gels in order to achieve gels having the desired structure/consistency/viscosity and because the courts have previously determine, “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. ‘[W]here 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.’” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Shepard clearly teaches that it was known to form pectin gels with pectin, sugar (specifically sucrose), and milk, specifically dried milk which are solubilized in water and that the concentrations can be adjusted of the components, e.g. calcium, etc. to afford different strengths/viscosities of gelling as is taught by Shepard and Norziah it would have been obvious as taught by the prior art to form the claimed blends for forming gels and to adjust the gelling as necessary to achieve the desired level of viscosity and/or gelling because this is something that one of ordinary skill in the art routinely does in order to form pectin gels comprising the claimed ingredients which have the desired viscosity/gelling.
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have combined the teachings of Shepard and Food Additives and further include EDTA as an additive in the composition of Shepard. Shepard teach that in addition to the critical agents one may add to the mix any desired food, flavoring and other material which may be desired to be present in the final gel. Food Additives teaches use of calcium disodium EDTA, a salt of EDTA, in food wherein EDTA is used as preservative. Food Additives teaches that EDTA can be safely used as food additive (i.e. as preservative). Thus, one skilled in the art would have found it obvious and have a reasonable expectation of success in further including EDTA as a preservative in the gelling solution of Shepard.
Regarding the recitation that gelling solution is for plant roots and seeds, the combination of cited references renders obvious the same formulation as instantly claimed and the recitation “a gelling solution for plant roots and seeds” is an intended use of the formulation recited in the instant claims. The prior art rendering obvious the same formulation as instantly claimed would necessarily be capable of being used for plant roots and seeds, absence any evidence to the contrary.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments/Remarks
Applicant in the declaration by Christopher Kniffen argued that applicant have provided data that illustrate the criticality of the claimed amounts. It was argued that merely doubling the concentration of each component does not automatically garner a similar doubling of change in crop yield and the data demonstrates that the claimed composition produces results that are neither proportional to the concentration of the dry blend nor predictable from the prior art. Applicant argued that it is the particular combination and the particular amounts of each components recited in the claims that have resulted in improved crop yields and these results are unexpected. Applicant also argued that the particular combination and the particular amounts of each component recited in the claims result in further improved crop yield when combined with additional plant growth promoting treatments.
In response, the examiner argues that in Table 3 of declaration, the corn yield appears to increase as the concentrations are increased from example 1 (lowest) to example 3 (highest). Similarly, in Table 5 of declaration, example 1 (lowest concentration of pectin, calcium and sugar) appears to show lowest % change in yield from control, and example 3 (highest concentration of pectin, calcium and sugar) appears to show the highest % change in yield from control. Thus, the data presented in the declaration appears to show a linear and predictable effect on crop yield with lower amounts providing lowest crop yield and highest amounts providing highest crop yield. Further, in order to show that the claimed amounts are critical and provide an unexpected effect, the results need to be of a statistical and practical difference between the instant claims and the prior art. MPEP 716.02. In table 3 of the declaration, example 1 has a crop yield of 164.74, example 2 (claimed amounts) have a crop yield of 167.81 and example 3 has a crop yield of 169.80. These differences in crop yield appear to be very small and applicant have not shown how these minor differences are of statistical and practical significance. Similarly, with the grain analysis, the differences between examples 1 to 3 also appear to be very small and applicant in this case have also not shown how these minor differences are of statistical and practical significance. Regarding the argument that the particular combination and the particular amounts of each component recited in the claims result in further improved crop yield when combined with additional plant growth promoting treatments, firstly, the examiner argues that independent claims 1 and 33 do not recite and require additional plant growth promoting treatments. Further, in table 6, the herbicides utilized for treatment composition comprising the claimed amounts of pectin, calcium source and sugar, are different from the herbicides utilized in the other two treatment compositions. Thus, it is unclear if the crop yield increase is due to the claimed amounts of the claimed ingredients or whether it is due to the different herbicides used in the composition. Additionally, regarding the combination of the claimed ingredients, in the experimental examples and in the comparative examples, applicant utilize all three claimed components (LM pectin, calcium source and sugar) and there is no comparative examples that does not utilize all three of the claimed components. Thus, it cannot be established that the claimed combination provides synergy and/or unexpected effect over the prior art. Therefore, applicant’s arguments regarding the claimed combination and claimed amounts providing unexpected results is not found persuasive at this time.
Applicant argued that instant claims are directed to gelling solutions that are used to stimulate plant growth and improved biomass. In particular, the claims have been amended to require the gelling solution is for plant roots and seeds and the agricultural additives that are added to the solution are used in farming and agriculture. Applicant argued that Shepard is directed to foodstuff and there’s no teaching that Shepard’s formulation can be applied to plant roots and seeds. Applicant made similar arguments regarding Crofters and Norziah and specifically that Crofters and Norziah are also not taught to be useful for plant/root growth.
In response, as discussed supra, the combination of cited references renders obvious the same formulation as instantly claimed and the recitation “a gelling solution for plant roots and seeds” is an intended use of the formulation recited in the instant claims. The prior art rendering obvious the same formulation as instantly claimed would necessarily be capable of being used for plant roots and seeds, absence any evidence to the contrary. Further, as discussed supra, the instant claims recite EDTA as further additive and Food Additives renders obvious the inclusion of EDTA in the formulation of Shepard.
Applicant argued that instantly claimed dry blend can be solubilized in water without any additional heating or precautions and Shephard reports that when the ingredients are to be incorporated without heat, it is essential that pectin be dispersed in the liquid medium before it makes effective contact with calcium ions or no gel will be formed or gel formed will be gritty or lumpy texture.
In response, the examiner argues that the instant claims do not exclude incorporation of the claimed blend ingredients in water with a hot process (heating). Shephard teaches both hot process and cold process are known to form solution which would gel. Thus, applicant’s argument are not found persuasive as heating is not excluded from the instant claims.
Applicant argued that Norziah reports effect of carrying concentration of pectin, sucrose and calcium on viscoelastic properties of pectin dispersions at pH 3. The particular pH recited in Norziah is destructive to most plant tissue.
In response, Norziah is utilized as a secondary reference for its teachings that it is known to form gels with pectin, sucrose, and calcium and that it is known to vary the amounts of the pectin, sugar and calcium in order to form gels with desired/different viscosities, etc. The primary reference Shepard already teaches a gelling solution and does not require the pH which is disclosed in Norziah, and one skilled in the art would have found it obvious to manipulate the amounts of pectin, sugar and calcium of Shepard, based on Norziah’s teachings, to obtain a gel of desired viscosity.
Conclusion
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/ALI S SAEED/Examiner, Art Unit 1616
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