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 .
Status of the Claims
Claims 1-14 are pending.
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.
Claims 1-5 and 8-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cavanaugh et al. (US 9,137,991).
Regarding instant claims 1-2 and 8-9, Cavanaugh et al. disclose a composition made of an active agent solubilized in a surfactant, wherein the active agent includes choline. More specially, the present invention relates to the controlled delivery of a choline containing composition to plants, containing but not limited to: turf grass, ornamental flowers and shrubs and bushes. In the preferred embodiment, the choline containing composition is used to mitigate the damage caused by animal urine (col. 1, ln. 66 to col. 2, ln. 6). Cavanaugh et al. disclose a liquid formulation for reducing or rectifying plant damage from a canine urine deposition consisting essentially of choline bitartrate ranging from between 1% to 5% by weight of said formulation, an emulsifier ranging from 1% to 10% of said liquid formulation, humic and/or fulvic acid, water, and an element selected from the group consisting of nitrogen, phosphorus, potassium, calcium, magnesium, silicon, sulfur, iron and zinc (Claim 1).
Cavanaugh et al. disclose compositions containing choline bitartrate, a nonionic surfactant and an anionic wetting agent (col. 5, ln. 36-62).
Regarding instant claims 3-4 and 10-11, Cavanaugh et al. disclose that the choline is added to the canine urine treatment composition at a rate of between 1% to 5% by weight (col. 3, ln. 13-15).
Response to Arguments
Applicant's arguments filed 2 March 2026 have been fully considered but they are not persuasive. In response to applicant's argument that Cavanaugh et al. do not teach facilitating movement of excess water through the soil while preventing browning of one or more plants contained in the soil, 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.
Applicant argues that Cavanaugh focuses on surfactants that reduce the surface tension between a liquid and a gas (i.e., to form a foam) in a two-phase system. Similarly, although Cavanaugh recognizes that surfactants can act as wetting agents, Cavanaugh focuses almost entirely on surfactants as foaming agents. Applicant asserts that a person of ordinary skill in the art would understand that a foam would not penetrate the soil. Applicant states that although Cavanaugh briefly discloses choline in connection with “a penetrating wetting agent,” which is anionic, Cavanaugh explains that the foaming surfactant is still used and “[t]he quantity of penetrating wetting agent … should be no more than 1.0% by weight.”
Applicant also argues that Cavanaugh discloses a foaming foliar treatment, i.e., a foam for treating plants. Although the compositions in Cavanaugh are contained as liquids, they are not delivered as liquids. In short, Cavanaugh does not disclose “liquid soil treatments” or applying such treatments to soil, as claimed. Regarding the wetting agents, Applicant argues that Cavanaugh does not state whether the surfactants disclosed therein having soil wetting agent properties.
The examiner respectfully argues that Cavanaugh et al. disclose that their invention pertains to the use of choline containing composition and method to mitigate damage caused by animal urine to plants. The infusion of choline into the plant through… root uptake can offset the negative effects of excess trimethylamine, nitrogen and salt that has entered the turf through pet urination (col. 2, ln. 58-63). The application of this product was carried out in three primary forms, including a dilute spray misted onto the test plots followed by heavy watering, and poured in a more concentrate solution on to the affected areas and then watered-in (col. 3, ln. 52-58). Cavanaugh et al. further disclose a composition comprising choline and a wetting agent for increasing water [movement] through the soil (emphasis added). The “penetrating” wetting agent is anionic in nature. The negative charge on the wetting agent molecule repels the negative charge on the soil colloids and temporarily increases the size of the capillary space within the soil matrix (col. 5, ln. 50-60). Therefore, Cavanaugh et al. disclose compositions that are taken up by the roots, sprayed onto the test plots, and poured or applied to the affected areas and watered-in (i.e., applied to the soil), and also includes a wetting agent that facilitates movement of water through the soil.
Applicant further argues that claims 1 and 8 further recite liquid soil treatments “consisting essentially of” choline and a wetting agent. The specification and claims provide a clear indication that a soil wetting agent and choline constitute the basic characteristics of the novel liquid soil treatment.
The examiner respectfully argues that for the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, “consisting essentially of” will be construed as equivalent to “comprising.” It is not clear that the components disclosed by Cavanaugh et al. will affect the basic and novel characteristics of the invention. The instant invention is applied to soil containing turfgrass. Cavanaugh et al. disclose compositions that can be applied to the soil and plants, such as turfgrass, to mitigate damage cause by animal urine. Cavanaugh et al. further disclose that the compositions comprise choline and a wetting agent that increases water movement through the soil. Therefore, absent evidence to the contrary, the compositions according to Cavanaugh et al. do not materially affect the basic and novel characteristics of the invention and are within the scope of the instant claims.
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.
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 6-7 and 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Cavanaugh et al. (US 9,137,991).
The teachings of Cavanaugh et al. are discussed above.
Regarding claims 6 and 13, Cavanaugh et al. teach that the composition comprises surfactants, such as nonionic surfactants including polyethylene glycol (col. 4, ln. 26-34).
Therefore, it would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare compositions according to Cavanaugh et al. wherein the nonionic surfactant is polyethylene glycol. Such would have been obvious because Cavanaugh et al. teach that surfactants are compounds that lower the surface tension of a liquid, the interfacial tension between two liquids, or that between a liquid and a solid. Surfactants may act as detergents, wetting agents, emulsifiers, foaming agents, and dispersants. In the instance of the foam cans, the non-ionic surfactant is used primarily as the foaming agent. Nonionic surfactant is not dependent on a surface-active anion for effect. They include many long chain alcohols such as polyethylene glycol (col. 4, ln. 26-34).
Regarding instant claims 7 and 14, Cavanaugh et al. teach their invention provides a composition made of an active agent solubilized in a surfactant, wherein the active agent includes choline (col. 1, ln. 66 to col. 2, ln. 1). Cavanaugh et al. teach that the compositions contain choline bitartrate, nonionic surfactants and water, wherein the choline is present from 1% to 5% (col. 5, ln. 36-62). Cavanaugh et al. also teach that the application was carried out 1) as a dilute spray (1-3% by volume) misted onto the test plots, 2) sprayed onto the foliage using a foam carrier, and 3) poured in a more concentrate solution (5-10% by volume) on to the affected areas (col. 3, ln. 52-59).
Cavanaugh et al. teach that the compositions can include other agents that have the physical property of reducing or rectifying plant damage from a canine urine deposition or that do not interfere with the activity of the active agent, but have other activity useful to plants (col. 3, ln. 15-19).
Therefore, the additional components according to Cavanaugh et al. are optional and not required for their inventive compositions.
It would have been prima facie obvious for a person of ordinary skill in the art to prepare compositions according to Cavanaugh et al. wherein the compositions consist of 1-5% by weight choline bitartrate and the remainder being wetting agents. Such would have been obvious because Cavanaugh et al. teach that choline is added to the composition at a rate of between 1% to 5% by weight; and that a dilute spray comprises 1-3% by volume and a concentrate comprises 5-10% by volume (col. 3, ln. 13-15 and 52-57). A person of ordinary skill in the art would have been motivated to prepare compositions consisting of choline and a surfactant/soil wetting agents in effective concentrations for ready-for-use application or for dilution prior to application.
Response to Arguments
Applicant's arguments filed 2 March 2026 have been fully considered but they are not persuasive. Applicant argues that the inventions described and claimed in the instant application solve problems arising from the regular and intended use of soil wetting agents, a problem not recognized by the prior art of record. The inventors found that treating soil with a combination of a soil wetting agent with a certain amount of choline had beneficial effects on plants contained in the soil while maintaining the water movement action of the soil wetting agent. The solution to Cavanaugh’s problem does not relate to soil wetting agents. Indeed, Cavanaugh specifically treats wetting agents as “non-active ingredients”, and there is no indication in Cavanaugh that preparing a choline composition in which the remainder were soil wetting agents would serve a purpose. Accordingly, a person of ordinary skill in the art, reading Cavanaugh, would not be motivated to prepare a choline composition in which the remainder would be almost entirely soil wetting agent.
The examiner respectfully argues that Cavanaugh et al. teach that their invention provides a composition made of an active agent solubilized in a surfactant, wherein the active agent includes choline, and the surfactant includes wetting agents and nonionic surfactants, such as polyethylene glycol (col. 1, ln. 66 to col. 2, ln. 1; col. 4, ln. 26-34). Cavanaugh et al. further teach that penetrating wetting agents increase water movement through the soil; and the penetrating wetting agent is anionic in nature (col. 5, ln. 50-60). The instant claims state that the soil wetting agent includes polyoxyalkylene polymers, polyoxyethylene surfactants, anionic surfactants, and nonionic surfactants. Therefore, the surfactants and penetrating wetting agents according to Cavanaugh et al. are within the scope of the instantly claimed soil wetting agents. Cavanaugh et al. further teach that additional components are optional and not required for their inventive compositions. Thus, a person of ordinary skill in the art would have been motivated to prepare a composition consisting of a choline and a surfactant and/or wetting agent, as reasonably taught by Cavanaugh et al.
Applicant also argues that Cavanaugh does not teach that polyethylene glycol has any effect on soil because the reference is not concerned with soil.
The examiner respectfully argues that Cavanaugh et al. teach that the compositions are watered-in after application, which will necessarily apply the compositions to the soil. Also, Cavanaugh et al. teach that the infusion of choline into the plant can occur through root uptake, and the application is carried out by a dilute spray mist followed by heavy watering, or poured in a more concentrate solution then watered-in. Furthermore, Cavanaugh et al. teach a penetrating wetting agent for increasing water movement through the soil, wherein the negative charge on the wetting agent molecule repels the negative charge on the soil colloids and temporarily increases the size of the capillary space within the soil matrix.
Conclusion
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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nathan W Schlientz whose telephone number is (571)272-9924. The examiner can normally be reached 10:00 AM to 6:00 PM, Monday through Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue 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.
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/N.W.S/Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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