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 .
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Poland on September 7, 2023. It is noted, however, that applicant has not filed a certified copy of the PL446040 application as required by 37 CFR 1.55.
Election/Restrictions
Applicant's election with traverse of Group I, claim 1 is acknowledged
Claims 2-14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected product and method, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on September 16, 2025.
The traversal is on the ground(s) that there would be no burden to search both Groups I and II together as they are so closely related. This is not found persuasive because searching both Groups would cause burden as that of Group I does not require any glass pane, the composition or the sputtering characteristics as required by Group II and that of Group II does not include the phytopathogen elimination details as required by Group I. As such, not only will both Groups require a different field of search but prior art found to meet Group I would not necessarily meet Group II. For these reasons, burden does exist and the restriction is proper.
The requirement is still deemed proper and is therefore made FINAL.
Claim Objections
Claim 1 is objected to because of the following informalities: In line 5, “use” should be corrected to “used”. 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.
Claim 1 is 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 1 is rejected for the following reasons;
1) Initially, in line 1, it is unclear what copper-based means and more specifically, how much copper needs to be present in the coating for it to be considered copper “based”. Note that “based” is a relative term, the term is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Additionally, in reviewing the specification, Applicants appear to discuss coatings having 10-90% copper, 0.5-15% titanium, 3-28% zinc and 1-20% tin and following with these ranges, as zinc and tin can arguably be at a greater content than copper, it is again, unclear what “based” means. Does the coating only have to include copper, does it have to include it at 10-90%, does the copper have to be the greatest content within the coating? Further, even if Applicants are disclosing the above-mentioned ranges in their specification, note that nowhere in the specification are units disclosed. As such, even if Applicants intended for “based” to mean 10-90% copper, it is unclear whether the prior art needs to teach wt%, mol%, atomic%, etc. The scope is simply not clear.
For examination, and following the ranges disclosed in the specification, as long as the prior art teaches a coating comprising 10-90% copper, regardless of units, the limitation will be considered to be met.
In line 1 bridged to line 2, while the claim recites a coating for crops
under glass covers, note that the claim is directed to the coating itself and not a coating on glass (note “for crops under glass covers” is intended use language). However, it is unclear whether this is a self-sustaining coating or does it always have to be on glass. Note that since the specification always indicates the presence of a glass pane, it is unclear whether the claimed coating is an intermediate product or self-sustaining.
For examination, as long as the prior art teaches a coating meeting the claimed requirements, it will be considered to meet the claim.
In line 3-4, it is unclear what is meant by titanium, zinc or tin and which are
completed by oxygen from the obtained oxides, as antiphytopathogen coatings.
Initially, note that “the obtained oxides” lacks antecedent basis as no oxides are previously claimed. As such, it is unclear what obtained oxides this is referring to. As the claim never actually positively recites the presence of “oxides” per se, it is unclear whether the “obtained oxides” are meant to already be present in the coating or in view of the language “the obtained oxides, as antiphytopathogenic coatings”, is the coating just of the metals and the obtained oxides are being produced during use as antiphytopathogenic coatings (i.e. oxidizing over time due to environmental oxidation, etc during use) and the claim is essentially claiming an intermediate product. The scope is simply not clear.
Additionally, the language “titanium, zinc, or tin, and which are completed by oxygen” also renders the scope unclear because it is unclear what is meant by “completed”. Does this mean that the titanium, zinc or tin in the final/completed coating only need to be oxidized, does this mean that the titanium, zinc or tin need to be fully oxidized, etc.? The scope is simply not clear.
For examination, if the prior art teaches titanium, zinc or tin being oxidized in the final coating, regardless of how much or how the oxygen is obtained, the limitation will be considered to be met.
In line 5, “such as” renders the scope unclear and indefinite because it is
unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). Specifically, it is unclear whether the listing of phytopathogens following “such as” are part of the invention or are they simply examples and not required.
For examination, the language/listings following the “such as” are considered to not be required.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a1 and a2) as being anticipated by Pillot et al. (EP4238418, rejection using corresponding English document USPub20250194591).
Regarding claim 1: Pillot teaches a fungicidal composition (see abstract) applied to soil (0256) or applied as foliar spray during crop development (0257) (fungicidal coating).
As the fungicidal composition (coating) is 20-60wt% or even 50wt% of a copper compound (see 0139-0140), it is considered to meet the limitation of being copper “based” in as much as the term has been defined.
The composition (coating) can comprise titanium oxide or titanium dioxide (0190, 0197).
The composition (coating) is an antiphytopathogenic composition (coating) (see entire document).
The limitation that the coating is used to eliminate phytopathogens is intended use and it has been held by the courts that as long as the prior art product would be capable of such use, the limitation will be met. In the instant case, as Pillot’s composition (coating) meets that claimed, it would be considered to have the same capabilities of use (MPEP 2112). However, the Examiner does note for the record that Pillot does teach their composition (coating) being used to control fungus by decreasing, killing, inhibiting, etc. phytopathogens (see entire document and note 0044-0046, 0053, 0306-0337).
The limitation in the preamble that the coating is “for crops under glass covers” is intended use and as mentioned above, it has been held by the courts that as long as the prior art product would be capable of such use, the limitation will be met. In the instant case, as Pillot’s composition (coating) meets that claimed, it would be considered to have the same capabilities of use (MPEP 2112).
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a1 and a2) as being anticipated by Caballero et al. (WO2022175654 rejection using corresponding English document USPub20240049720).
Regarding claim 1: Cabellero teaches a composition (see abstract) applied to soil, plants, etc. by coating (0153) (coating). As the composition (coating) is 1-40wt%, 5-30 wt% or even 10-20 wt% of a copper compound (see 0096-0098), it is considered to meet the limitation of being copper “based” in as much as the term has been defined.
The composition (coating) can comprise titanium (IV) oxide, tin oxide, zinc oxide, etc. (0113) (i.e. completed by oxygen).
The composition (coating) is an antiphytopathogenic composition (coating) (see entire document).
The limitation that the coating is used to eliminate phytopathogens is intended use and it has been held by the courts that as long as the prior art product would be capable of such use, the limitation will be met. In the instant case, as Cabellero’s composition (coating) meets that claimed, it would be considered to have the same capabilities of use (MPEP 2112). However, the Examiner does note for the record that Cabellero does teach their composition (coating) being used to control or inhibit phytopathogens (entire document).
The limitation in the preamble that the coating is “for crops under glass covers” is intended use and as mentioned above, it has been held by the courts that as long as the prior art product would be capable of such use, the limitation will be met. In the instant case, as Cabellero’s composition (coating) meets that claimed, it would be considered to have the same capabilities of use (MPEP 2112).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LAUREN ROBINSON COLGAN whose telephone number is (571)270-3474. The examiner can normally be reached Monday thru Friday 9AM to 5PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Humera Sheikh can be reached at 571-272-0604. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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LAUREN ROBINSON COLGAN
Primary Examiner
Art Unit 1784
/LAUREN R COLGAN/Primary Examiner, Art Unit 1784