DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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.
Receipt and consideration of Applicant’s amended claim set and Applicant’s arguments/remarks submitted on May 22, 2026 are acknowledged.
All rejections/objections not explicitly maintained in the instant office action have been withdrawn per Applicant’s claim amendments and/or persuasive arguments. Applicant’s claim amendments have necessitated new grounds of rejections set forth below.
Status of the Claims
Claims 1-20 are pending. Claims 14-19 are withdrawn. Claim 20 is newly added. Claims 1-13 and 20 are under consideration in this action.
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-13) in the reply filed on January 23, 2026 is acknowledged.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed applications, Application No. 15/760,468, PCT/EP2016/071810, EP15185212.6, and BE2016/0011, fail to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. Specifically, the aforementioned prior-filed applications do not appear to provide adequate support for the full scope of: (i) solubilizing agents recited in claim 5; (ii) the concentration of the at least one hydroxycinnamic acid derivative oligomer recited in claim 9; and (iii) the additional components (i.e., at least one herbicide, fungicide, insecticide, or combination thereof) recited in claim 1.
With regards to (i), while the prior-filed applications provide support for inclusion of at least one solubilizing agent in general, the first appearance of the specific solubilizing agents recited in claim 5 (e.g., non-ionic surfactants and/or non-ionic surfactant aqueous solutions, and organic solvents with a polarity lower than water) is the instant application; the first appearance of the specific non-ionic surfactants and/or non-ionic surfactants aqueous solutions recited in claim 6 is the instant application; the first appearance of ethyl lactate recited in claim 7 is the instant application; and the first appearance of polyethylene glycols with a low molecular weight as recited in claim 8 is the instant application.
With regards to (ii), the first appearance of the concentration of the at least one hydroxycinnamic acid derivative oligomer recited in claim 9 is in the instant application.
With regards to (iii), the first appearance of the further inclusion of herbicides, fungicides, insecticides, or combinations thereof as recited in claim 1 is the instant application.
Therefore, Claims 1-13 and 20, which incorporate the above limitation(s), will have the priority date of December 28, 2023.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-13 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Cabrera Pino et al. (Cabrera Pino) (US 2018/0242579 A1; of record), Kanatas et al. (Kanatas) (Agronomy; of record), and Robbins et al. (Robbins) (US 2022/0272987 A1; of record).
With regards to Claim 1, Cabrera Pino discloses a composition comprising at least one hydroxycinnamic acid derivative oligomer, wherein said composition comprises at most 3% of hydroxycinnamic acid derivative monomer, expressed in percent relative to the total hydroxycinnamic derivative oligomers of the composition (Cabrera Pino claim 1).
The composition is used as a biostimulant for improving stress tolerance of a plant (para.0129). The composition is for improving stress tolerance of a plant, wherein said stress is abiotic or biotic (para.0024). Among the abiotic stress include hydric stress, drought, osmotic stress, thermal stress, nutrient deficiency, and chemical stress generated by metallic or organic pollutant in the soil to grow said plant (para.0024).
With regards to Claims 2, 3, and 20, the at least one hydroxycinnamic acid derivative may be ferulic acid. In an embodiment, the composition comprises at least one ferulic oligomer, preferably diferulic acid (para.0019).
With regards to Claim 4, a solubilizing agent is not a required component of the composition (para.0015; Cabrera Pino claim 1). Thus, absent evidence to the contrary, Cabrera Pino encompasses composition comprising no solubilizing agents.
With regards to Claims 5-6, the composition may further include Polysorbate 80 (para.0216) (reading on solubilizing agent; polysorbate; non-ionic surfactant).
With regards to Claim 7, the composition may further include a diluting agent, such as ethanol (para.0099).
With regards to Claim 8, it is noted that the claim, which depends from claim 5, as currently written further narrows to specific polyethylene glycols (PEGs), but does not positively recite that the composition includes polyethylene glycols. Thus, as currently written, the claim is interpreted as the composition further comprising at least one solubilizing agent chosen from the group recited in claim 5, but if a polyethylene glycol is included, it must be one from those recited in claim 8. In the present case, Cabrera Pino, discloses the inclusion of Polysorbate 80 (solubilizing agent; polysorbate; non-ionic surfactant), and thus also reads on claim 8
With regards to Claim 10, the composition is in liquid form, such as in the form of a foliar spray (para.0132).
With regards to Claim 12, the composition is a coating composition, preferably a seed coating composition (para.0134).
Cabrera Pino does not appear to explicitly disclose wherein the composition further comprises herbicides, fungicides, insecticides, or combinations thereof. Kanatas and Robbins are relied upon for this disclosure. Their teachings are set forth herein below.
Kanatas discloses that combining herbicides and biostimulants shows potential to achieve good weed management while improving crop yields and quality and thus lower herbicide rates could be used for sufficient weed control in full agreement with the goals of Green Deal and agroecology approaches (abstract).
Kanatas discloses that plants are threatened by several biotic factors like pests and weeds, especially in the case of low growth rate crops. Herbicides are widely used due to the sufficient weed management they often provide (p.1, Introduction, para.1).
Kanata discloses that it is widely known that biostimulants play an essential role in modern agricultural management, since they can increase crop yield or prevent crop yield losses due to abiotic stresses. They improve water supply and increase nutrition efficiency, which is important for plant growth and productivity (p.2, 3.1 Crop Yield, para.1).
Robbins discloses a composition comprising a combination of a carbonate or bicarbonate compound, an acid, a biostimulant, a nutrient, and a pesticide (abstract). Among the suitable pesticides include fungicide, herbicide, and insecticide (para.0031). The biostimulant, nutrient, and pesticide may be supplied together in the form of a blended product (para.0032).
With regards to the further inclusion of herbicides, fungicides, insecticides, or combinations thereof as recited in Claims 10 and 12, one of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the teachings of Cabrera Pino with the teachings of Kanatas and Robbins and further include pesticides such as herbicides into Cabrera Pino’s composition, which used as a biostimulant for improving stress tolerance of a plant. One of ordinary skill in the art would have been motivated to do so in order to obtain the advantage of improving a plant’s stress tolerance to abiotic and biotic stressors, and improving crop yields and quality while also achieving good weed management while lowering herbicide rates, which would also be in line with goals of Green Deal and agroecology approaches (Kanatas). One of ordinary skill in the art would have had a reasonable expectation of success in doing so as both Cabrera Pino and Kanatas are both directed to formulation components directed to improving abiotic and biotic stress tolerance in plants, and Robbins discloses that biostimulants and pesticides (e.g., herbicides) are known to be blended together in a single formulation.
With regards to Claim 9, it would have been obvious to one of ordinary skill in the art before the effective filing date of the instant invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the active ingredient beneficially taught by the cited reference) based on art recognized factors, such as the condition of the crops to be treated, its severity, the formulation type, application frequency, etc., is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. 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. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955).
With regards to Claims 11 and 13, the limitations are directed to an intended use of the composition (i.e., application rate when the composition is applied). A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Note: MPEP 2111.02. In the present case, there does not appear to be a structural difference between the claimed invention and the composition of the combined teachings of the cited prior art references as discussed above. Furthermore, the composition of the combined teachings of the cited prior art references do not preclude or impede the prior art composition from performing the claimed intended use (application rate). Thus, absent evidence to the contrary, as the prior art structure is capable of performing the intended use, it meets the claims.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the combined teachings of the prior art references is fairly suggestive of the claimed invention.
Response to Arguments
Applicant's arguments filed May 22, 2026 have been fully considered but they are not persuasive.
(1) Applicant argues that the reliance on Kanatas and Robbins for the generic proposition that biostimulants and pesticides may be combined fails to articulate why a skilled artisan would have selected hydroxycinnamic acid oligomers specifically, out of the enormous and heterogeneous universe of compounds disclosed, for combination with any particular pesticide species.
With regards to Applicant’s argument (1), the traversal argument is not found persuasive. The rejection set forth above is based on the teachings of Cabrera Pino, Kanatas, and Robbins. Thus, it is not the entire universe of possible biostimulant compounds, but rather, the specific teachings of the cited references. In the present case, Cabrera Pino explicitly discloses the hydroxycinnamic acid oligomers as biostimulants.
Kanatas and Robbins were relied upon for the disclosure that biostimulants are known to be combined with herbicides, and that such combinations show potential to achieve good weed management while improving crop yields and quality, thus lowering herbicide rates. It is noted that the claims as currently written do not recite specific pesticides (e.g., specific herbicides, specific fungicides, etc.).
(2) Applicant argues a generalized rationale to pair one biostimulant with one pesticide does not show that the skilled artisan would have expected success in arriving at the particular combination recited in claim 1, with its specific components, proportions, and functionality. Applicant argues the rejection fails unless the record supplies evidence that the skilled artisan would have expected the claimed combination to work as claimed, and the obviousness analysis cannot collapse into hindsight by treating a general “could combine” rationale as if it automatically proved success with the specific claimed formulation. Applicant argues that a skilled artisan familiar with formulation chemistry would recognize that biostimulant-pesticide combinations are not uniformly compatible chemical interactions between bioactive natural products and synthetic pesticide active ingredients can produce degradation, precipitation, loss of pesticidal or biostimulant efficacy, or antagonistic effects on the treated plant. Applicant argues that absent specific guidance teaching that hydroxycinnamic acid oligomers in particular would maintain stability and exhibit beneficial effects when combined with the various herbicide, fungicide, and insecticide actives within the claim scope, a skilled artisan would have had no more than a hope that the specific claimed combination would work.
With regards to Applicant’s argument (2), the traversal argument is not found persuasive. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In the present case, as discussed above in detail, Cabrera Pino discloses their composition is used as a biostimulant for improving stress tolerance of a plant. Kanatas and Robbins were relied upon for the disclosure that biostimulants are known to be combined with herbicides, and that such combinations show potential to achieve good weed management while improving crop yields and quality, thus lowering herbicide rates. As discussed above, one of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the teachings of Cabrera Pino with the teachings of Kanatas and Robbins and further include pesticides such as herbicides into Cabrera Pino’s composition, which is used as a biostimulant for improving stress tolerance of a plant. One of ordinary skill in the art would have been motivated to do so in order to obtain the advantage of improving a plant’s stress tolerance to abiotic and biotic stressors, and improving crop yields and quality while also achieving good weed management while lowering herbicide rates, which would also be in line with goals of Green Deal and agroecology approaches (Kanatas). One of ordinary skill in the art would have had a reasonable expectation of success in doing so as both Cabrera Pino and Kanatas are both directed to formulation components directed to improving abiotic and biotic stress tolerance in plants, and Robbins discloses that biostimulants and pesticides (e.g., herbicides) are known to be blended together in a single formulation.
The standard for an obviousness rejection is not an absolute expectation of success, but rather, a reasonable expectation of success. No evidence appears to have been presented to rebut the aforementioned reasonable expectation of success.
(3) Applicant argues that Examples 14-16 in the Specification demonstrates unexpected and superior results (Remarks, p.11-14).
With regards to Applicant’s argument (3), the traversal argument is not found persuasive. With regards to the data of Example 14 (Table 13), the example compares a seed treatment including a combination of fungicides and insecticides to a seed treatment including a combination of fungicides, insecticides, and ferulic acid oligomers. The data is not commensurate in scope with the claims because the claims as currently written do not require fungicides and insecticides. The claims as currently written recite, at its broadest, herbicides, fungicides, and insecticides in the alternative, and require only a single species of herbicide, fungicide, or insecticide.
With regards to the data of Example 15 (Table 14), the example compares a pesticide cocktail either alone or in combination with ferulic acid oligomers. The data is not commensurate in scope with the claims because the claims as currently written do not require fungicides and insecticides. The claims as currently written recite, at its broadest, herbicides, fungicides, and insecticides in the alternative, and require only a single species of herbicide, fungicide, or insecticide.
With regards to the data of Example 16 (Table 15), the example compares seeds treated with a fungicide-and-insecticide mixture in different solubilizing systems, either with or without ferulic acid oligomers. The data is not commensurate in scope with the claims because the claims as currently written do not require fungicides and insecticides. The claims as currently written recite, at its broadest, herbicides, fungicides, and insecticides in the alternative, and require only a single species of herbicide, fungicide, or insecticide.
Furthermore, it is noted that Examples 14-16 do not appear to test the ferulic acid oligomer component alone, which is a data point needed for comparison to ascertain whether the improvement of the pesticide + ferulic acid oligomer treatments are additive or synergistic. As discussed above, Cabrera Pino discloses their composition is used as a biostimulant for improving stress tolerance of a plant. Kanatas, for example, discloses that combining herbicides and biostimulants shows potential to achieve good weed management while improving crop yields and quality and thus lower herbicide rates could be used for sufficient weed control. Thus, based on the prior art teachings, it would expected that the combination of biostimulants with pesticides such as herbicides would produce improved yields compared to pesticides alone as biostimulants provide the additional benefit to plants or improving their stress tolerance.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-13 and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 and 16 of U.S. Patent No. 11,896,009 B2 (USPN 009) in view of Kanatas et al. (Kanatas) (Agronomy; of record), Robbins et al. (Robbins) (US 2022/0272987 A1; of record), Cabrera Pino et al. (Cabrera Pino) (US 2018/0242579 A1; of record), and Thompson (US 2018/0325103 A1; of record).
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims claim substantially similar and overlapping compositions for improving abiotic stress tolerance in plants comprising at least one hydroxycinnamic acid derivative oligomer, wherein said composition comprises at most 3% of hydroxycinnamic acid derivative monomer, expressed in percent relative to the total hydroxycinnamic derivative oligomers of the composition.
The primary differences between the instant claims and the cited claims of USPN 009 are that the claims of USPN 009 do not appear to explicitly claim: (i) the further inclusion of herbicides, fungicides, insecticides, or combinations thereof; (ii) the further inclusion of at least one solubilizing agent from those recited in claim 5. Cabrera Pino, Kanatas, Robbins, and Thompson are relied upon for these disclosures. The teachings of Cabrera Pino, Kanatas and Robbins are set forth above and incorporated herein. The teachings of Thompson are set forth herein below.
Thompson discloses agricultural composition for improving crop productivity and enhancing plant phenotypes. The compositions include an osmoprotectant and one or both of an anti-desiccant and an anti-respirant (abstract). Anti-respirant agents are used to increase adhesion in the soil or agricultural compositions and increase the delivery and the absorption of the composition into the plant or plant part. These agents help to slow or prevent excessive water loss or minimize water loss through transpiration (para.0234). Anti-respirants also act as anti-transpirants in plants to minimize water loss from transpiration (para.0233). Among the suitable anti-transpirants that can be used include ethyl alcohol (ethanol) (para.0245).
With regards to the further inclusion of herbicides, fungicides, insecticides, or combinations thereof, one of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the claims of UPSN 009 with the teachings of Kanatas and Robbins and further include pesticides such as herbicides into USPN 009’s claimed composition for improving abiotic stress tolerance in plants. One of ordinary skill in the art would have been motivated to do so in order to obtain the advantage of improving a plant’s stress tolerance to abiotic and biotic stressors, and as improving crop yields and quality while also achieving good weed management while lowering herbicide rates, which would also be in line with goals of Green Deal and agroecology approaches (Kanatas). One of ordinary skill in the art would have had a reasonable expectation of success in doing so as both USPN 009 and Kanatas are both directed to formulation components directed to improving abiotic and biotic stress tolerance in plants, and Robbins discloses that biostimulants and pesticides (e.g., herbicides) are known to be blended together in a single formulation.
With regards to Claims 11 and 13, the limitations are directed to an intended use of the composition (i.e., application rate when the composition is applied). A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Note: MPEP 2111.02. In the present case, there does not appear to be a structural difference between the claimed invention and the composition of the combined teachings of the cited prior art references as discussed above. Furthermore, the composition of the combined teachings of the cited prior art references do not preclude or impede the prior art structure from performing the claimed intended use (application rate). Thus, absent evidence to the contrary, as the prior art structure is capable of performing the intended use, it meets the claims.
With regards to Claim 9, it would have been obvious to one of ordinary skill in the art before the effective filing date of the instant invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the active ingredient beneficially taught by the cited reference) based on art recognized factors, such as the condition of the crops to be treated, its severity, the formulation type, application frequency, etc., is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. 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. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955).
With regards to the solubilizing agent as recited in Claim 5, one of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the claims of USPN 009 with the teachings of Thompson and further include ethanol (anti-transpirant) into USPN 009’s claimed composition, which is for improving abiotic stress tolerance in plants. One of ordinary skill in the art would have been motivated to do so in order to prevent excessive water loss or minimize water loss through transpiration, which is aligned with the purpose of USPN 009’s claimed composition of improving abiotic stress tolerance in plants. One of ordinary skill in the art would have had a reasonable expectation of success in doing so as both USPN 009 and Thompson are directed to formulation components for agrochemical formulations for improving crop productivity.
With regards to Claim 6, one of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the claims of USPN 009 with the teachings of Cabrera Pino and further include Polysorbate 80 (reading on polysorbate) into USPN 009’s claimed composition. One of ordinary skill in the art would have been motivated to do so in order to arrive at the desired formulation properties to be suitable for spraying onto plants. One of ordinary skill in the art would have had a reasonable expectation of success in doing so as Cabrera Pino discloses that Polysorbate 80 is known to be suitable for use with diferulic acid oligomers when formulating foliar sprays for application to plants.
With regards to Claim 8, it is noted that the claim, which depends from claim 5, as currently written further narrows to specific polyethylene glycols (PEGs), but does not positively recite that the composition includes polyethylene glycols. Thus, as currently written, the claim is interpreted as the composition further comprising at least one solubilizing agent chosen from the group recited in claim 5, but if a polyethylene glycol is included, it must be one from those recited in claim 8. In the present case, the composition of USPN 009 and Thompson as discussed above includes an organic solvent with a polarity lower than water (ethanol), and thus also reads on claim 8.
Response to Arguments
Applicant's arguments filed May 22, 2026 have been fully considered but they are not persuasive.
(4) Applicant argues that claim 1 has been amended to require the further combination with at least one herbicide, fungicide, insecticide, or combination thereof, which is not required by the claims of USPN 009.
With regards to Applicant’s argument (5), the traversal argument is not found persuasive. The rejection set forth above is over the cited claims of USPN 009 in view of Kanatas, Robbins, Cabrera Pino, and Thompson. Kanatas and Robbins, for example, were relied upon for the inclusion of the claimed pesticidal component.
(5) Applicant argues that the unexpected results demonstrated in Examples 14-16 of the specification establish nonobviousness of the presently claimed combinations over the parent claims for the reasons discussed above.
With regards to Applicant’s argument (5), the traversal argument is not found persuasive. The rebuttal regarding the data of Examples 14-16 are set forth above in the rebuttal to Applicant’s argument (3) and incorporated herein.
Conclusion
Claims 1-13 and 20 are rejected. No claims are allowed.
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 MONICA A. SHIN whose telephone number is (571)272-7138. The examiner can normally be reached Monday-Friday (9:00AM-5:00PM EST).
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, Sue X Liu can be reached at 571-272-5539. 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.
/MONICA A SHIN/Primary Examiner, Art Unit 1616
Prosecution Insights