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 information disclosure statement (IDS) filed 7/30/24 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed.
The copy of Armel et al. provided in the file wrapper is not legible, so it was not considered. Applicant is advised to submit a new copy. The rest of the IDS has been considered.
Specification
The use of the terms “B Sure®” and “Enlist E3®,” which are trade names or marks used in commerce, have been noted in this application. The terms should be accompanied by the generic terminology; furthermore the terms should be capitalized wherever they appear or, where appropriate, include proper symbols indicating use in commerce such as ™, SM , or ® following the terms.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claims 7, 15 objected to because of the following informalities:
In claim 7, “6-Benzyl adenine” should read “6-benzyl adenine.”
In claim 7, 6-benzyl adenine is also considered an alternative spelling of benzyladenine. The applicant should pick only one of them.
In claim 7, “a cytokinins” should read “a cytokinin.”
In claim 15, “brazil nut” should read “Brazil nut.”
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.
Claims 4, 15 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.
Regarding claim 4, the following limitation is unclear: “0.001-0.0% glucosamine.” The lower limit of the range is 0.001%, which is greater than the upper limit of the range, 0.0%. This incongruency renders claim 4 and all claims depending thereon indefinite.
Regarding claim 15, the phrase "like" as used in “fruit trees like apple…” and “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(s) unascertainable. See MPEP § 2173.05(d).
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Instant claims 1-2, 4-11, 13-15, 19-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fuller (WO 2014/106776).
NOTE FOR CLARITY: Fuller describes a composition comprising a first component (chitosan, glucosamine, and amino acids), which is analogous to the instantly claimed HYT plant ameliorant, and a second component (pesticides, plant nutritional molecules, non-pesticidal living systems), which is analogous to the instantly claimed pesticide [0028]. Fuller also describes HYTa, HYTb, HYTc, HYTd, HYTe, and HYTf. HYTd is an embodiment of the first component [0007], so both terms are used to reject the instantly claimed HYT plant ameliorant. HYTa, HYTb, and HYTc can be added to the composition of claim 1 [0014]. HYTe and HYTf are not claimed but are in the specification; they both comprise HYTd with some other components, so they are also used to reject the instantly claimed HYT plant ameliorant [00114, 00118].
Regarding instant claim 1, Fuller et al. additionally teaches a first component comprising a mixture or solution of chitosan, glucosamine, and amino acids in combination with a second component comprising a biological control agent and additionally one or more pesticides, one or more non-pesticide organic molecules, one or more nutritional molecules and non-pesticidal living systems [0028]. Claim 16 describes a process comprising contacting soil, seed, seedling or plant foliage with the components of the composition of claim 1. Claims 17-18, [0029] disclose that the application of the first and second components may be performed simultaneously or sequentially. [00122, 00123] and table 4 (shown after [00123]) teach that application of azoxystrobin (a fungicide) with HYTd results in significant increases in yield. Therefore, Fuller meets the limitations of claim 1. Regarding instant claim 2, Fuller teaches the composition includes chitosan, glucosamine, amino acids, trace elements, proteins, and polysaccharides0030, -0032].
Regarding instant claim 4, Fuller’s composition comprises about 2 to 6 wt% glucosamine [0030].
Regarding instant claim 5, Fuller discloses the plant is contacted with HYTf at a rate of about 1000 to 1500 ml per hectare which converts to about 1 L to 1.5 L per hectare (math not shown) [00118]. 1-1.5 L per hectare lies within the claimed range of about 0.25 to about 20 liters/hectare and therefore anticipates that presently claimed (See MPEP 2131.03 regarding anticipation of ranges).
Regarding instant claim 6, Fuller discloses that in their composition, the one or more pesticide is selected from the group consisting of herbicides, insecticides, fungicides, or nematicide [0009, 00420048, 0051-0053].
Regarding instant claim 7, Fuller discloses that their composition comprises at least one second component selected from a group, one of the group members being one or more non-pesticide organic molecules [0027, 0028]. These non-pesticide organic molecules can be selected from another group, one of the group members being plant hormones [0056]. . Exemplified plant hormones include abscisic acid, an auxin, a brassinosteroid, a cytokinins, ethylene, a jasmonate, jasmonic acid, paclobutrazol, polyamines, and salicylic acid, which meet the limitation of claim 7 [0056, 0057].
Regarding instant claims 8 and 9, Fuller discloses in claim 16 that their method of applying the composition comprises contacting soil, seed, seedling, or plant foliage with the components of the composition of claim 1, and Fuller discloses in [0012] that the plant nutritional molecules mentioned in claim 1 are selected from the group consisting of micro-nutrients, major nutrients, and fertilizer. The micro-nutrients, major nutrients, and fertilizer of Fuller would have the properties of being “one or more additional tank mix additives or formulation components” as instant claim 9 defines ‘fertilizers’ and ‘nutrient based additives’ (i.e. micro- and major nutrients) as “one or more additional tank mix additives or formulation components.” Regarding instant claims 10 and 11, Fuller discloses that the application of the first and second components may be performed simultaneously or sequentially (claims 17-18, [0029]).
Regarding instant claim 13, Fuller discloses the application process is repeated in some cases 0102].
Regarding instant claim 14, Fuller discloses that the process comprises contacting foliage, seeds (claim 16, abstract, [0102]), or roots (Example 3).
Regarding instant claim 15, Fuller discloses the composition can be used in connection with any plant including but not limited to alfalfa, corn, cotton, soybean, sugarbeet, sugarcane, rice, barley, potato, banana, raspberry, grape, strawberry, tomato, melon, cucumber, watermelon, squash, edible vegetables, turfgrass, forage grass, and ornamental crops [0106].
Regarding instant claims 19 and 20, Fuller contains [00122, 00123] and table 4 (shown below [0123]), which show an example of measuring yield, significant increases in yield, and pathogen (pest) control. HYTd applied at 4 L/ha below the seed of Maris Piper potatoes results in a yield of 67.64 t/ha, 3% R. solani (pathogen), and 23% S. scabies (pathogen). Fungicide applied with HYTd results in a yield of 68.97 t/ha, 2% R. solani, and 21% S. scabies. The control (standard farm practice) results in a yield of 64.31 t/ha, 12% R. solani, and 42% S. scabies. Both treatments resulted in increased yield and increased pathogen (pest) control compared to the control.
Instant claims 1-2, 4, 6-10, 13-15 are also rejected under 35 U.S.C. 102(a)(2) as being anticipated by Caballero (WO 2022/185037).
Regarding instant claim 1, Caballero discloses a method of reducing phytotoxicity (plant injury) [0010], comprising applying to a plant or to a plant part or to a plant propagation material (soil or soilless medium) a composition comprising kasugamycin or a salt thereof, and a plant resistance elicitor (claims 16-17). The plant resistance elicitor can contain nutrients (claim 2, claim 6, [0013]), selected from one or more of nitrogen, carbon, phosphorus, potassium, and sulphur (claim 3, claim 7, [0015]). In an embodiment, the carbon source is selected from sugars such as glucosamine and chitosan [00111]. Therefore, the plant resistance elicitor anticipates the HYT plant ameliorant. Claim 12 and [00139] also disclose that the composition can further comprise and herbicide, fungicide, insecticide, nematicide, or combinations thereof. Those examples anticipate the pesticide in instant claim 1. Lastly, Caballero also discloses examples of simultaneous applications in the form of pre-mix formulations in Examples 1-4 [00193-00210].
Regarding instant claim 2, Caballero discloses a composition contains a carbon source selected from chitosan [00111], glucosamine [0014]; and anti-freeze proteins (proteins) [00123].
Regarding instant claim 4, Caballero discloses a composition comprises glucosamine in an amount ranging from 0.05% - 5.0% w/v [0019].
Regarding instant claim 6, Caballero discloses that in their method, the composition comprises an herbicide, insecticide, fungicide, nematicide, or combinations thereof [00139].
Regarding instant claim 7, Caballero discloses that in their method that the composition can additionally comprise polyvinyl alcohols, ethylene oxide copolymer, polyethylene glycols, polyethylene oxides (ethylene), and polyamines [00121, 00122]. Further, the composition’s plant resistance elicitor can be a metabolite [0013] selected from a group, one of the group members being salicylic acid [0131].
Regarding instant claims 8 and 9, Caballero discloses that their method further comprises applying the plant, plant part, or plant propagation material (soil or soilless medium) with the composition (claim 16, claim 17). The composition may be in the form of a kit of parts such that individual actives may be mixed before spraying, and the kit of parts may contain an optional third active admixed with an adjuvant or an agrochemical or a fertilizer compound such that the components may be tank mixed before spraying [00143], which meets the limitations of claims 8 and 9.
Regarding instant claim 10, Caballero discloses examples of applications of the plant resistance elicitor (HYT plant ameliorant) and urea (an herbicide according to [00142]) simultaneously in the form of pre-mix formulations in Examples 1-4 [00193-00210].
Regarding instant claim 13, Caballero gives examples 2-4 where the composition was applied in three applications every 7 days when the first symptoms of a disease appeared [00198], two applications every 7 days from the stage of bulb maturation [00203], and four applications every 7 days when the first symptoms of a disease appeared [00210].
Regarding instant claim 14, Caballero discloses that the method may treat a seed [00137].
Regarding instant claim 15, Caballero discloses the crops on which the present compositions may be used include, and are not limited to, corn, sorghum, cotton, soybean, sugarcane, sunflower, rapeseed (rape), peanut, rice, barley, oat, rye, wheat, potato, tobacco, fruits (fruit trees): apple, apricot, banana, blackberry, raspberry, blueberry, cherry fruit (cherry), cranberry, orange, grapefruit, lemon, lime, olive, grape, nectarine, peach, pear, plum, quince, strawberry, tomato, eggplant, pepper, melon, cucumber, watermelon, pumpkin, squash, zucchini, nuts such as almond, cashew, chestnuts, pistachio, walnut, vegetables, turf grasses, etc. [00186].
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.
Instant claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Caballero (WO 2022/185037). As applied to claims 1-2, 4, 6-10, 13-15 above, Caballero further teaches the composition comprises a nitrogen source in an amount ranging from 0.1% - 10% w/v, the potassium source in an amount ranging from 1.0% - 25% w/v, a nutrient source (potassium, carbon, and/or calcium) in an amount ranging from 1% to 15% w/v [0019, 0072]. The “nitrogen source in an amount ranging from 0.1% - 10% w/v” in Caballero encompasses “about 0.5- 2% (w/v) nitrogen” in the claimed range. The “potassium source in an amount ranging from 1.0% - 25% w/v” in Caballero touches on “about 0.5-1% (w/v) potassium” in the claimed range. The “nutrient source (potassium, carbon, and/or calcium) in an amount ranging from 1% to 15% w/v” in Caballero touches on “about 0.5-1% (w/v) potassium” and “about 0.2-1% (w/v) calcium,” and encompasses “about 4-8% (w/v) carbon” in the claimed range [0023, 0072].
Caballero does not teach with sufficient specificity to anticipate but render obvious the instant claimed ranges.
At the time of filing, the person of ordinary skill in the art would know that Caballero’s ranges are obvious over the instant claims.
A reference is analyzed using its broadest teachings. MPEP 2123 [R-5]. “[W]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious”. KSR v. Teleflex, 127 S,Ct. 1727, 1740 (2007)(quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious”, the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742. Here a skilled artisan would be motivated to rearrange the teaching of Caballero to arrive at the instant claimed invention.
Therefore, Caballero obviates that presently claimed. “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists” (See MPEP 2144.05 (I) regarding obviousness of ranges).
Instant claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Fuller (WO 2014/106776), (as applied to claims 1-2, 4-11, 13-15, 19-20 above).
Fuller taught above a process comprising contacting soil, seed, seedling or plant foliage with the components of the composition (claim 16). Although Fuller does not disclose 1 hour to 12 months prior, it would have been routine optimization to arrive at that time range.. While a specific time period is not taught, Fuller teaches that the components can be applied sequentially [0029] which means “one after the other.” 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 (MPEP 2144.05 (II)(A)). Further, a person of ordinary skill in the art would have a reasonable expectation of success with that time range.
Instant claims 16, 17 are rejected under 35 U.S.C. 103 as being unpatentable over Fuller (WO 2014/106776), in view of Oliver 2014 (https://pmc.ncbi.nlm.nih.gov/articles/PMC6173531/).
As disclosed above, Fuller teaches the method of instant claim 1.
Fuller does not teach that the plant is a genetically modified plant or that the plant is not a genetically modified plant but does teach various types of plants and crops generally.
Oliver teaches genetically modified crops and their wild relatives (“Herbicide Tolerance,” “Insect Resistance,” Oliver 492–507).
Therefore, before the effective filing date of the claimed invention, it would be obvious to a person having ordinary skill in the art to apply the method in instant claim 1 as taught by Fuller to both genetically modified and non-genetically modified plants as taught by Oliver. The modification of a known method of Fuller to provide improved compositions and processes that boost crop yield and reduce the amount of conventional fungicides and insecticides used in agricultural and horticultural applications [0006] with the known plant materials of Oliver (i.e. genetically modified or wild type) is within the purview of the skilled artisan and would yield predictable results. The combination of a known method and known product for a similar purpose of plant growth is obvious.
Instant claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Fuller (WO 2014/106776) as applied to claims 1-2, 4-11, 13-15, 19-20 above, in view of Caballero (WO 2022/185037) and Glenn (US 2022/0270250).
Fuller’s method utilizes a variety of the claimed agricultural compounds, including pesticides, herbicides, and fungicides to increase plant yield amongst other improvements (see above).
Fuller fails to teach that those compounds can lead to phytotoxicity (a kind of crop injury) in plants but Fuller does address enhancing crop quality by reducing the amounts of fertilizer/pesticides and increasing plant defense processes [0001, 0039]. Fuller also fails to teach their method as further comprising the step of assessing crop injury by measuring one or more of stunting, thinning, lodging, defoliation, bleaching, chlorosis, necrosis (burn), and root malformation. Caballero is directed to agricultural compositions, which are to be applied to plants. Caballero teaches that such agricultural compositions can cause phytotoxicity, a type of crop injury, to plants [0005]. Glenn teaches measuring stunting, bleaching, chlorosis, necrosis to assess phytotoxicity (crop injury) in plants (Abstract).
While Fuller and Caballero deal with specific compositions, and Caballero discusses phytotoxicity, a person having ordinary skill in the art would be motivated to combine it with Glenn’s assessment system for phytotoxicity before the effective filing date of the claimed invention. The combination of the method of Glenn (i.e. the chemical products applied to agricultural crops and other plants may cause damage known as phytotoxicity [0001]) with Caballero and Fuller’s compositions would be prima facia obvious since Caballero also seeks to avoid phytotoxicity with its compositions and Fuller seeks to avoid damage and increase growth and defense processes. Further, it is obvious to a person of ordinary skill in the art to combine a known method or technique to a known product for a similar purpose.
Double Patenting (Non-Statutory)
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.
Claim 1 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5 of U.S. Patent No. 11591274 (‘274) in view of WO 2014/106776 (Fuller).
Claims 1-3, 5 of ‘274 disclose a method that further comprises contacting the soil, plants, plant parts, or seeds with one or more of chitin, chitosan, glucosamine, and amino acids (claims 1-2), one or more of HYT B, HYT C, and HYT D (claim 3). The chitin, chitosan, glucosamine, and amino acids are analogous to the instantly claimed HYT plant ameliorant. ‘274’s HYT B is the liquid fraction of a fermented mixture of chitin-containing biological material and a microbial composition, which may include components such as protein, amino acids, glucosamine, trace elements. In additional non-limiting examples, the liquid fraction may include about 0.01-0.2% glucosamine, and/or trace amounts of chitosan. ‘274’s HYT C is the solid fraction of a fermented mixture of chitin-containing biological material and a microbial composition, which may contain trace elements, protein or amino acids. ‘274’s HYT D is the liquid fraction resulting from fermentation of HYT B and chitin with a microbial composition. In some non-limiting examples, HYT D contains (w/v) about 0.5-2% total amino acids, about 3-7% protein, and less than 2% glucosamine. Therefore, HYT B, C, and D are analogous to the instantly claimed HYT plant ameliorant. ‘274 also discloses the method further comprising contacting the soil, plants, plant parts, or seeds with one or more pesticides, one or more fungicides, one or more herbicides, one or more insecticides, one or more plant hormones, one or more plant elicitors, or combinations of two or more thereof. ‘274’s plant hormones and plant elicitors are analogous to the instant claimed plant growth regulators.
Claims 2-3, 5 of ‘274 do not disclose that the contacting with the HYT plant ameliorant and the one or more pesticide and/or plant growth regulator is simultaneous or sequential, thereby reducing the plant injury and/or increasing the yield.
Claims 17-18, [0029] of Fuller disclose that the application of the first and second components may be performed simultaneously or sequentially. [00122, 00123] and table 4 (shown after [00123]) teach that application of azoxystrobin (a fungicide) with HYTd results in significant increases in yield.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have applied the compounds of ‘274simultaneously or sequentially, resulting in increased yield, as taught by Fuller. The modification of a known method of Fuller to provide improved compositions and processes that boost crop yield and reduce the amount of conventional fungicides and insecticides used in agricultural and horticultural applications [0006] with the known compounds of ‘274 (i.e. chitosan, glucosamine, and amino acids, etc.) is within the purview of the skilled artisan and would yield predictable results. The combination of a known method and known product for a similar purpose of plant growth is obvious.
The foregoing analysis establishes that the conflicting claims are not patentably distinguishable from the claims of the present application.
Claim 1 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2 and 4 of U.S. Patent No. 11230505 (‘505). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are obvious over ‘505’s claims.
Claims 1-2 of ‘505 teach a method further comprising contacting soil, plants, or plant parts with one or more of chitosan, glucosamine, and amino acids. Claim 4 of ‘505 teaches that the method further comprises contacting the soil, plants, or plant parts with one or more pesticides, one or more fungicides, one or more herbicides, one or more insecticides, one or more plant hormones, one or more plant elicitors, or combinations of two or more thereof. The scopes of the claimed applications are interpreted to be sequential or simultaneous based on the specification [62, 63]. They are also interpreted to increase yield given that treatments with compositions of HYTb and microbial compositions show increased yield compared to the controls for various plants (Figures 4-5, 9-12). ‘505’s HYTb is analogous to the instantly claimed HYT plant ameliorant- HYTb is the liquid fraction of a fermented mixture of chitin-containing biological material and microbes [51], which may include components such as protein, amino acids, glucosamine, trace elements. In additional non-limiting examples, the liquid fraction may includes about 0.01-0.2% glucosamine, and/or trace amounts of chitosan [53].
‘505 does not teach with sufficient specificity to anticipate but render obvious the instant claimed ranges.
At the time of filing, the person of ordinary skill in the art would know that ‘505’s ranges are obvious over the instant claims.
A reference is analyzed using its broadest teachings. MPEP 2123 [R-5]. “[W]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious”. KSR v. Teleflex, 127 S,Ct. 1727, 1740 (2007)(quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious”, the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742. Here a skilled artisan would be motivated to rearrange the teaching of ‘505 to arrive at the instant claimed invention.
The foregoing analysis establishes that the conflicting claims are not patentably distinguishable from the claims of the present application.
Claim 1 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-2 and 4 of U.S. Patent No. 11230506 (’506). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are obvious over ‘506’s claims.
Claims 1-2 of ‘506 teaches a method to increase crop yield comprising contacting soil, plants, or plant parts with one or more of chitosan, glucosamine, and amino acids. Claim 4 of ‘506 teaches that the method further comprises contacting the soil, plants, or plant parts with one or more pesticides, one or more fungicides, one or more herbicides, one or more insecticides, one or more plant hormones, one or more plant elicitors, or combinations of two or more thereof. The scopes of the claimed applications are interpreted to be sequential or simultaneous based on the specification [59, 60]. They are also interpreted to increase yield given that treatments with compositions of HYTb and microbial compositions show increased yield compared to the controls for various plants (Figures 4-5, 9-12). ‘506’s HYTb is analogous to the instantly claimed HYT plant ameliorant- HYTb is the liquid fraction of a fermented mixture of chitin-containing biological material and microbes [49], which may include components such as protein, amino acids, glucosamine, trace elements. In additional non-limiting examples, the liquid fraction may includes about 0.01-0.2% glucosamine, and/or trace amounts of chitosan [51].
‘506 does not teach with sufficient specificity to anticipate but render obvious the instant claimed ranges.
At the time of filing, the person of ordinary skill in the art would know that ‘506’s ranges are obvious over the instant claims.
A reference is analyzed using its broadest teachings. MPEP 2123 [R-5]. “[W]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious”. KSR v. Teleflex, 127 S,Ct. 1727, 1740 (2007)(quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious”, the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742. Here a skilled artisan would be motivated to rearrange the teaching of ‘506 to arrive at the instant claimed invention.
The foregoing analysis establishes that the conflicting claims are not patentably distinguishable from the claims of the present application.
Conclusion
Claims 1-20 are rejected.
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLY S LIU whose telephone number is (571)272-8235. The examiner can normally be reached Monday-Friday 8:00 AM - 5:00 PM.
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, Bethany P Barham can be reached at 571-272-6175. 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.
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/ALLY S LIU/ Examiner, Art Unit 1611