Notice of Pre-AIA or AIA Status
DETAILED ACTION
Summary
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Applicants’ response and claim amendments filed on 04/26/26 are acknowledged. The examiner appreciates the applicants’ amendments which appear to overcome many of the previous rejections of record and substantially advance prosecution. Claims 1-3 and 5-21 are pending and rejected. Claim 21 is newly added.
IDS not considered
The IDS filed on 04/29/26 is acknowledged but the reference attached not considered as it is mostly illegible and greyscale which cannot be determined what the words or pictures are. As such the reference is lined thru since only a few pages are legible out of 14 total.
***It is noted that applicant fixed the 1st instance of ‘like’ in claim 15 but did not address the 2nd instance as previously pointed out and as such this rejection is maintained, all others are withdrawn being overcome by the current claim amendments.
MAINTAINED REJECTIONS
Claim Rejections - 35 USC § 112
Claim 15 remains 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 15 still contains the phrase ‘nuts like almond...’ renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by ‘like’), thereby rendering the scope of the claim indefinite. See MPEP 2173.05(d).
NEW REJECTIONS
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 of this title, 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 1-3, 5-15 and 18-20 rejected under 35 U.S.C. 103 as being unpatentable over US20180235235 (‘235) in view of US5726123 (‘123) and US 20130260993 (‘993).
‘235 teaches methods of agricultural application to soil, plants and/or plant parts of compositions comprising trace chitosan, glucosamine 0.01-0.2%, 1-5% amino acids and fertilizers, etc. wherein the liquid fraction is referred to as HYTb and is applied in order to produce higher plant productivity and yield and resist stress and shock (abstract, claims 1, 8, 15-20, [0027, 0058]) according to the limitations of claims 1 and 6-9. According to ‘235 compositions can additionally include protein 3-7%, sulfur 0.1-4%, nitrogen 0.1-2%, phosphorus 0.2%, calcium 0.2-1%, Mg 0.2%, sodium, etc in overlapping amounts [0037], [0047] and [0058] according to the limitations of claims 2-3.
According to ‘235 the above liquid composition is diluted and applied to crops in amounts of 1-3 L/acre with an added pesticide, herbicide, etc. such as which reads on instant claims 5-12 [0072-77]. Crops include alfalfa. almond, broccoli, canola, corn, etc. and the nutrient compositions or combinations thereof of HYTb, HYTc, HYTd etc can be added to the plant sequentially, simultaneously, etc. and once or multiple times [0066-0067, 0071-0072 and 0076] according to the limitations of claims 9-17.
‘235 shows that the compositions improve plant yield and root growth and higher plant productivity, vigor, type, root development, stress tolerance, lodging, etc. [0012-0025 and 0071-0079] according to the limitations of claims 18-20.
‘235 teaches ‘trace’ chitosan but does not teach a specific amount however if that alone is not obvious then it is combined with ‘123 and ‘993.
‘235 does not teach specific growth regulators but does disclose such generally.
‘123 teaches application of 0.01-50% chitosan for increasing yield of plants (abstract, col. 1, lines 41-54 and col. 3, line 65- col. 4, line 10). According to ‘123 the most preferred amount is a concentration of 0.01-1.5% (col. 5, lines 39-50).
‘993 which also teaches homeopathic elements for plant control and to increase yield containing chitosan and micronutrients such as those instant claimed for plant growth, vigor, etc. See abstract and claims. ‘993 teaches combinations of chitin and chitosan is amounts of 0.25% undiluted and 0.03% in a liquid dilution and dose amounts of 9, 0.9, 0.09 mg/seed for specific examples provided (Fig. 1, Table 2 [0056-0065, 0076]. ‘993 also teaches nitric oxide, cytokinins, ethylene, methyl jasmonate as additional actives [0018, 0060]. ‘993 teaches that this enhances the root system, overcomes environmental stresses and also increases yield [0050-0055].
As such it would have been obvious at the time of filing to combine the method of ‘235 to improve plant yield and decrease stress/injury with a composition of glucosamine and trace chitosan with the combination of ‘123 and ‘993 which teach the inclusion of overlapping amounts of ‘trace’ chitosan and that it is similarly known to improve yield and improve natural defense and decrease stresses in small amounts. The combination of a known method and product with another for the same purpose which provides a range of % of that same compound is within the purview of the skilled artisan and would yield the predictable result of increased plant yield and decreased disease and stress. As the MPEP 2144.05 states “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.”
Claims 1-3 and 5-21 rejected under 35 U.S.C. 103 as being unpatentable over US20180235235 (‘235) in view of US5726123 (‘123) and US 20130260993 (‘993) and further in view of US 20100093537 (‘537).
‘235, ‘123, ‘993 is taught above and teaches various crops including corn and other grains and fruit and do not teach whether these are native or genetically modified and further do not teach the specific herbicides or fungicides of newly added claim 21 but do teach the inclusion of herbicides or fungicides generally (‘235 [0067, 0071-0076]; ‘123 col 6, lines 60-67, etc.).
‘537 teaches enhancing plant growth and crop yield with chitosan and other actives including herbicides and fungicides such as lactofen, chlorimuron, fomesafe, etc. (abstract, claim 1, 8, 16, 27; [0019). ‘537 teaches an example with genetically modified corn ([0080-0081] #15).
As such it would have been obvious at the time of filing to combine the method of ‘235, ‘123, and ‘993 to improve plant yield and decrease stress/injury with a composition of glucosamine and trace chitosan and other actives such as herbicides/pesticides/fungicides with the product of ‘537 which teaches specific claimed herbicides and fungicides for the same purpose. The simple substitution of a known herbicides or fungicides for another is within the purview of the skilled artisan and would yield predictable results. Further simple substitution of ‘corn’ which could be native or genetically modified for a specifically genetically modified type is within the purview of the skilled artisan and would yield predictable results. Crops can either be native or genetically modified and as such substitution of one for another is obvious.
Response to Arguments
Applicant's arguments with respect to claims 1-3 and 5-21 have been considered and are persuasive for all by claim 15 which remains rejected under 112 as previously raised (see above discussion), but all other arguments are moot in view of the new grounds of rejection necessitated by applicants’ amendments.
Conclusions
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BETHANY BARHAM whose telephone number is (571)272-6175. The examiner can normally be reached on M-F 9:30AM-6pm.
The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
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