DETAILED ACTION
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
This application claims priority to US Provisional Application 63/427,636 filed on 23 November 2022.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 16 November 2023 and 6 February 2024 are acknowledged and considered.
Claim Objections
Claims 5, 13, and 20 are objected to because of the following informalities:
Claim 5 is missing a period at the end of the sentence (MPEP §608.01(m)).
Claim 13 recites: “The method of claim 1, where. . .” The claim should recite “wherein”.
Claim 20 recites: “The method of claim 14, where. . .” The claim should recite “wherein”.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
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 inventions 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.
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.
Claims 1-8, 11-17, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Rijneveldshoek (US PG Publication No. 2020/0113178A1) in view of Bika et al. (“Botrytis cinerea management in ornamental production: a continuous battle” Canadian Journal of Plant Pathology 43:3, 345-365. Published 21 August 2020)
Rijneveldshoek teaches that pesticides tend to be toxic chemicals and that their application to prevent destruction by microbes on live plants, may have deleterious side effects on the health and well-being of consumers (¶ [0008]). Contacting live plants with a composition comprising a carboxylic acid or a salt thereof (Abstract) may be used as an alternative to applications of conventional pesticides as carboxylic acids prevent said deleterious side effects, inhibit microbial growth, are environmentally safe, and are less toxic than conventional pesticides (Introduction). The specific embodiments discussed are compositions comprising calcium propionate (CaP) with a water carrier (¶ [0041]) to be contacted with flowers such as turfgrass, tulip bulbs, or banana plants (¶ [0060]). Additionally, the concentrations of the CaP can range from 0.1% to 12% (w/v) with water as the carrier (¶ [0041]).
However, Rijneveldshoek does not teach contacting “cut flowers,” like “roses” or “petunia,” with CaP solution.
Bika et al. teaches that ornamentals, specifically cut flowers, are plagued by the notorious pathogen Botrytis cinera (page 345, Abstract). Furthermore, infection can occur post-harvest and result in major losses of healthy flowers, greatly reducing the vase life of cut flowers. The pathogen causes diseases during the shipping process and in cold storage of the post-harvest flowers because of its ability to effectively grow at temperatures <5°C (page 346, middle of second column paragraph). Bika et al. also teaches that the use of calcium to control post-harvest Botrytis blight is a viable option to elicit disease reduction but largely depends on the calcium source (page 351, second column). For instance, organic calcium salts, calcium salts, and calcium + amino acid chelate were found to reduce Botrytis blight severity (entire document, e.g. p.351).
Bika et al. does not teach a method of applying CaP compositions to flowers.
Rijneveldshoek and Bika et al. are considered to be analogous art to the claimed invention because they are in the same field of applying environmentally and consumer safe chemicals to ornamentals, like cut flowers, that are at high risk of infection by fungal pathogens like Botrytis cinerea. Therefore, it would have been prima facie obvious to a PHOSITA before the effective filing date of the invention, to apply the methods of using a calcium salt, like CaP, as taught by Rijneveldshoek, to target cut flowers in order to inhibit microbe growth as taught by Bika et al. A PHOSITA would have had a reasonable expectation of success using CaP compositions on cut flowers to inhibit microbial growth and ultimately preserve the vase life of said cut flowers in view of the teachings of Rijneveldshoek and Bika et al.
With respect to claims 1-4, Rijneveldshoek teaches methods of using CaP, which is a salt compound of formula I wherein R is C2 alkyl.
With respect to claim 5, Rijneveldshoek teaches applying CaP compositions to inhibit microbial growth on live plants and Bika et al. teaches calcium salts can be used to inhibit microbial growth on cut flowers like a rose (page 351, second column, first indented paragraph).
With respect to claim 6, Rijneveldshoek teaches CaP solutions with water as a carrier (see above citations).
With respect to claims 7-8, 14-15, Rijneveldshoek teaches that CaP is used in concentration ranges from 0.1% to 12% (w/v), overlapping with the ranges instantly claimed. It would have been prima facie obvious to choose concentrations of CaP based on those teachings (MPEP §2144.05(I)).
With respect to claims 11-12 and 16-17, Rijneveldshoek teaches various formulations of contacting live plants with CaP, such as watering, atomizing, scattering, spraying, etc. (¶ [0044]). Bika et al. teaches calcium salts can be used to strengthen the cell walls of cut flowers as calcium ions play a significant role in all stages of plant growth in maintaining metabolic processes (page 351, first column, first indented paragraph). It would have been prima facie obvious to a PHOSITA following the teachings of Rijneveldshoek and Bika et al. to submerge or spray the cut flowers with CaP in order to strengthen the cell wall and inhibit microbial growth.
With respect to claims 13 and 20, the inhibition of Botrytis cinera as a result of CaP treatment, is reasonably expected to occur based on the teachings of Bika.
Accordingly, claims 1-8, 11-17, and 20 would have been prima facie obvious to a PHOSITA in view of the teachings of Rijneveldshoek and Bika et al.
Claims 9-10 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over the teachings of Rijneveldshoek (US PG Publication No. 2020/0113178A1) in view of Bika et al. (“Botrytis cinerea management in ornamental production: a continuous battle” Canadian Journal of Plant Pathology 43:3, 345-365. Published 21 August 2020) in view of Horst (U.S. PG Publication No. 2004/0167220A1).
As mentioned previously, Rijneveldshoek teaches methods of applying specific concentrations of CaP in aqueous solutions to inhibit microbial growth on flowers, such as turfgrass and tulip bulbs and Bika et al. teaches that Botrytis cinera is a notorious pathogen discriminately affecting cut flowers.
However, the combined teachings of Rijneveldshoek and Bika et al. do not teach methods of contacting flowers using acidic CaP compositions.
Horst teaches environmentally safe fungicide and bactericide formulations comprising one or more preservatives in mildly acidic aqueous solutions, wherein the preservatives include organic acids and the salts and esters thereof (Abstract). Non-limiting example includes the use of propionic acid and its respective calcium salt (¶ [0019]). The teachings suggest that these compounds can be “. . . made to be much more highly efficacious in controlling pathogens on live plants if they are used in mildly acidic pH range of between 2.5 and 6.5” (¶ [0018]). Moreover, the pH of the treatment solution should be carefully considered as a pH below a certain range can be phytotoxic, whereas a pH above a certain range can abate the efficacy of the fungicide (¶ [0021]).
Horst does not teach applying CaP solutions to cut flowers.
Rijneveldshoek, Bika et al., and Horst are all considered to be analogous art to the claimed invention because they are all in the same field of applying environmentally and consumer safe chemicals, like CaP, to ornamentals, like cut flowers, that are at high risk of infection by fungal pathogens like Botrytis cinerea. Therefore, it would have been prima facie obvious to a PHOSITA before the effective filing date of the invention, to follow the collective teachings of Rijneveldshoek and Bika et al., to apply methods of using CaP compositions to inhibit Botrytis cinerea growth plaguing cut flowers, and further modify the CaP formulation through the teachings of Horst to formulate an acidic aqueous CaP solution to contact cut flowers and preserve their vase life in an environmentally friendly way.
Regarding claims 9-10 and 18-19, it would have been obvious to a PHOSITA before the effective filing date of the claimed invention to formulate a CaP solution and apply it to cut flowers possessing a microbial infection based on the collective teachings of Rijneveldshoek and Bika et al., and further modify the formulation to be an acidic solution based on the teachings of Horst, to generate a CaP composition to be more highly efficacious in a pH range between 2.5 and 6.5, preferably 4.0 to 4.6, an acidic pH range. Deciding on a pH within the range of instant claims 10 and 19 would be prima facie obvious to a PHOSITA because of the overlapping ranges taught by Horst (MPEP §2144.05(I)).
Accordingly, claims 9-10 and 18-19 would have been obvious to a PHOSITA from the collective teachings of Rijnevelshoek and Bika et al. in view of Horst.
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 1-6, 11, 13, and 16 are rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 10,939,679 (‘679 patent) in view of Bika et al (citation provided above).
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 1-6, 11, and 13 are obvious over claims 1-12 of ‘679 patent in view of Bika et al.
Claims 1 and 3 of ‘679 patent recite a method of treating live flowers, specifically tulip bulbs or turfgrass, comprising contacting them with an effective amount of a composition consisting of CaP in a concentration range of 5% to 12% (w/v) in water.
However, ‘679 patent does not disclose contacting “cut flowers,” like “roses” or “petunia,” with CaP solution.
Bika et al. teaches that ornamentals, specifically cut flowers, are plagued by the notorious pathogen Botrytis cinera (page 345, Abstract). Furthermore, infection can occur post-harvest and result in major losses of healthy flowers, greatly reducing the vase life of cut flowers. The pathogen causes diseases during the shipping process and in cold storage of the post-harvest flowers because of its ability to effectively grow at temperatures <5°C (page 346, middle of second column paragraph). Bika et al. also teaches that the use of calcium to control post-harvest Botrytis blight is a viable option to elicit disease reduction but largely depends on the calcium source (page 351, second column). For instance, organic calcium salts, calcium salts of amino acids, were found to reduce Botrytis blight severity.
Bika et al. does not teach a method of applying CaP solutions to flowers.
Regarding claims 1-6, 11, and 13, Bika et al. teaches that calcium salts of organic acids can be used to inhibit microbial growth on cut flowers, like a rose, and preserve their vase life. It would have been prima facie obvious to a PHOSITA to use aqueous CaP compositions taught by ‘679 patent to contact cut flowers in view of Bika et al. to inhibit microbial growth on said cut flowers. The transition phrase “comprising” as it pertains to instant claim 1 encompasses the concentrations taught in ‘679 patent. Regarding claim 13, the inhibition of Botrytis cinera as a result of CaP treatment, would be reasonably expected to occur upon application, based on the teachings of Bika.
Claims 7-8, 12, 14-17, and 20 are rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 10,939,679 (‘679 patent) in view of Rijneveldshoek (US PG Publication No. 2020/0113178A1), further in view of Bika et al. (citation provided above).
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 7-8, 12, 14-15, 17, and 20 are obvious over claims 1-12 of ‘679 patent in view of Rijneveldshoek, further in view of Bika et al.
As mentioned previously, claims 1 and 3 of the ‘679 patent recite a method of treating live flowers, specifically tulip bulbs or turfgrass, comprising contacting them with an effective amount of a composition consisting of CaP in a concentration range of 5% to 12% (w/v) in water. Bika et al. teaches application to cut flowers such as a rose or petunia.
The combination of the ‘679 patent and Bika et al. do not teach the specific concentrations of claims 7-8, 14-17, and 20 or contacting cut flowers via spraying.
Rijneveldshoek teaches that pesticides tend to be toxic chemicals and that their application to prevent destruction by microbes on live plants, may have deleterious side effects on the health and well-being of consumers (¶ [0008]). Therefore, contacting live plants with a composition comprising a carboxylic acid or a salt thereof (Abstract) may be used as an alternative to prevent said deleterious side effects as they can inhibit microbial growth, are environmentally safe, and are less toxic than conventional pesticides. The specific embodiments discussed are compositions comprising calcium propionate (CaP) with a water carrier (¶ [0041]) to be contacted with flowers such as turfgrass, tulip bulbs, or banana plants (¶ [0060]). Additionally, the concentrations of the CaP can range from 0.1% to 12% (w/v) with water as the carrier (¶ [0041]). Various formulations of contacting live plants with CaP, such as watering, atomizing, scattering, spraying, etc. (¶ [0044]), are also taught.
Rijneveldshoek does not teach applying CaP solutions to cut flowers.
With respect to claims 7-8, 12, 14-15, 17 and 20, Rijneveldshoek teaches that CaP is used in concentration ranges from 0.1% to 12% (w/v), overlapping with the ranges instantly claimed. It also teaches that flowers can be contacted via spraying. It would have been prima facie obvious to choose the instantly claimed concentrations of CaP and spray cut flowers as the method of contact based on those teachings. (MPEP §2144.05(I).
Regarding claim 20, the inhibition of Botrytis cinera as a result of CaP treatment, is inherent upon application (MPEP §2112(I and V)).
Claims 9-10 and 18-19 are rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 10,939,679 (‘679 patent) in view of the collective teachings of Rijneveldshoek (US PG Publication No. 2020/0113178A1) and Bika et al.(citation provided above), further in view of Horst (U.S. PG Publication No. 2004/0167220A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 9-10 and 18-19 are obvious over claims 1-12 of ‘679 patent in view of the collective teachings of Rijneveldshoek and Bika et al., further in view of Horst.
As mentioned previously, claims 1 and 3 of the ‘679 patent recites a method of treating live flowers, specifically tulip bulbs or turfgrass. Rijneveldshoek teaches methods of applying specific concentrations of CaP in aqueous solutions to inhibit microbial growth on flowers, such as turfgrass and tulip bulbs. Additionally, the concentrations of the CaP can range from 0.1% to 12% (w/v) with water as the carrier (¶ [0041]). Bika et al. teaches that Botrytis cinera is a notorious pathogen discriminately affecting cut flowers.
The combination of the ‘679 patent, Rijneveldshoek, and Bika et al. do not teach the acidic/pH limitations of instant claims 9-10 and 18-19.
Horst teaches environmentally safe fungicide and bactericide formulations comprising one or more preservatives in mildly acidic aqueous solutions, wherein the preservatives include organic acids and the salts and esters thereof (Abstract). Non-limiting example includes the use of propionic acid and its respective calcium salt (¶ [0019]). The teachings suggest that these compounds can be “. . . made to be much more highly efficacious in controlling pathogens on live plants if they are used in mildly acidic pH range of between 2.5 and 6.5” (¶ [0018]). Moreover, the pH of the treatment solution should be carefully considered as a pH below a certain range can be phytotoxic, whereas a pH above a certain range can abate the efficacy of the fungicide (¶ [0021]). Horst teaches that calcium salts of propionic acid can be formulated in acidic solutions in the range of pH 3.0 to 5.5 (¶ [0018]).
Horst does not teach applying CaP solutions to cut flowers.
Regarding claims 9-10 and 18-19, claims 1 and 3 of the ‘679 patent recite contacting live tulip bulbs and turfgrass with a 5% to 12% (w/v) CaP solution. It would have been prima facie obvious to a PHOSITA following the teachings of the‘679 patent to apply CaP solutions to flowers and Rijneveldshoek based on the teachings of and further limit the scope of flowers to cut flowers in view of Bika et al. This range overlaps with the instant claims therefore it would have been prima facie obvious to arrive at the pH instantly claimed (MPEP §2144.05(I)).
Claims 1-6, 11, and 13 are rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 11,751,564 (‘564 patent) in view of Bika et al. (citation provided above).
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 1-6 are obvious over claims 1-10 of the ‘564 patent in view of Bika et al.
Claim 1 of ‘564 patent recites a method of treating live flowers, comprising contacting them with an effective amount of a composition consisting of CaP in a concentration range of 5% to 12% (w/v) in water.
However, the ‘564 patent does not disclose contacting “cut flowers,” like “roses” or “petunia,” with CaP solution.
Bika et al. teaches that ornamentals, specifically cut flowers, are plagued by the notorious pathogen Botrytis cinera (page 345, Abstract). Bika et al. also teaches that the use of calcium to control post-harvest Botrytis blight is a viable option to elicit disease reduction but largely depends on the calcium source (page 351, second column). For instance, organic calcium salts, calcium salts of amino acids, were found to reduce Botrytis blight severity.
Bika et al. does not teach a method of applying CaP solutions to flowers.
Regarding claims 1-6, 11, and 13, claim 1 of the ‘564 patent recites a method of treating live flowers, comprising contacting them with an effective amount of a composition consisting of CaP in a concentration range of 5% to 12% (w/v) in water. Bika et al. teaches that calcium salts of organic acids can be used to inhibit microbial growth on cut flowers, like a rose, and preserve their vase life. It would have been prima facie obvious to a PHOSITA to use aqueous CaP compositions taught by ‘564 patent to contact cut flowers in view of Bika et al. to inhibit microbial growth on said cut flowers. The transition phrase “comprising” as it pertains to instant claim 1 encompasses the concentrations taught in the ‘564 patent. Regarding claim 13, the inhibition of Botrytis cinera as a result of CaP treatment, is inherent upon application (MPEP §2112(I and V)).
Claims 7-8, 12, 14-17, and 20 are rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 11,751,564 (‘564 patent) in view of Rijneveldshoek (US PG Publication No. 2020/0113178A1), further in view of Bika et al. (citation provided above).
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 7-8, 12, 14-17, and 20 are obvious over claims 1-10 of ‘564 patent in view of Rijneveldshoek, further in view of Bika et al.
As mentioned previously, claim 1 of the ‘564 patent recites a method of treating live flowers, comprising contacting them with an effective amount of a composition consisting of CaP in a concentration range of 5% to 12% (w/v) in water. Bika et al. teaches application to cut flowers such as a rose or petunia.
The combination of the ‘564 patent and Bika et al. do not teach the specific concentrations of claims 7-8, 12, 14-17, and 20 or contacting cut flowers via spraying.
Rijneveldshoek teaches methods of applying specific concentrations of CaP in aqueous solutions to inhibit microbial growth on flowers, such as turfgrass and tulip bulbs. Additionally, the concentrations of the CaP can range from 0.1% to 12% (w/v) with water as the carrier (¶ [0041]). Various formulations of contacting live plants with CaP, such as watering, atomizing, scattering, spraying, etc. (¶ [0044]), are also taught. Bika et al. teaches that Botrytis cinera is a notorious pathogen discriminately affecting cut flowers.
Rijneveldshoek does not teach contacting cut flowers with CaP solutions.
Regarding claims 7-8, 12, 14-17, Rijneveldshoek teaches that CaP is used in concentration ranges from 0.1% to 12% (w/v), overlapping with the ranges instantly claimed. It also teaches that flowers can be contacted via spraying. It would have been prima facie obvious to choose the instantly claimed concentrations of CaP and spray cut flowers as the method of contact based on those teachings. (MPEP §2144.05(I).
Regarding claim 20, the inhibition of Botrytis cinera as a result of CaP treatment, is inherent upon application (MPEP §2112(I and V)).
Claims 9-10 and 18-19 are rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 11,751,564 (‘564 patent) in view of the collective teachings of Rijneveldshoek (US PG Publication No. 2020/0113178A1) and Bika et al. (citation provided above), further in view of Horst (U.S. PG Publication No. 2004/0167220A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 9-10 and 18-19 are obvious over claims 1-10 of ‘564 patent in view of the collective teachings of Rijneveldshoek and Bika et al., further in view of Horst.
As mentioned previously, claim 1 of the ‘564 patent recites a method of treating live flowers, comprising contacting them with an effective amount of a composition consisting of CaP in a concentration range of 5% to 12% (w/v) in water. Rijneveldshoek teaches methods of applying specific concentrations of CaP in aqueous solutions to inhibit microbial growth on flowers, such as turfgrass and tulip bulbs. Additionally, the concentrations of the CaP can range from 0.1% to 12% (w/v) with water as the carrier (¶ [0041]). Bika et al. teaches that Botrytis cinera is a notorious pathogen discriminately affecting cut flowers.
The combination of the ‘564 patent, Rijneveldshoek, and Bika et al. do not teach the acidic/pH limitations of instant claims 9-10 and 18-19.
Horst teaches environmentally safe fungicide and bactericide formulations comprising one or more preservatives in mildly acidic aqueous solutions, wherein the preservatives include organic acids and the salts and esters thereof (Abstract). Non-limiting example includes the use of propionic acid and its respective calcium salt (¶ [0019]). The teachings suggest that these compounds can be “. . . made to be much more highly efficacious in controlling pathogens on live plants if they are used in mildly acidic pH range of between 2.5 and 6.5” (¶ [0018]).
Horst does not teach contacting cut flowers with CaP solutions.
Regarding claims 9-10 and 18-19, claim 1 of ‘564 patent recites contacting live tulip flowers with a 5% to 12% (w/v) CaP solution. It would have been prima facie obvious to apply CaP solutions to flowers through the teachings of ‘564 patent and Rijneveldshoek and further limit the scope of flowers to cut flowers in view of Bika et al. A skilled artisan would have found it prima facie obvious to formulate to composition as an acidic solution having a pH of about 5.5 (MPEP §2144.05(I)).
Claims 1-6, 11 and 13 are rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,408,664 (’664 patent) in view of Bika et al. (citation provided above).
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 1-6, 11, and 13 are obvious over claims 1-20 of the ‘664 patent in view of Bika et al.
Claim 1 of ‘664 patent recites a method of treating live banana plants, comprising contacting them with an effective amount of a composition consisting of CaP in a concentration range of 5% to 12% (w/v) in water.
However, ‘664 patent does not disclose contacting “cut flowers,” like “roses” or “petunia,” with CaP solution.
Bika et al. teaches that ornamentals, specifically cut flowers, are plagued by the notorious pathogen Botrytis cinera (page 345, Abstract). Bika et al. also teaches that the use of calcium to control post-harvest Botrytis blight is a viable option to elicit disease reduction but largely depends on the calcium source (page 351, second column). For instance, organic calcium salts, calcium salts of amino acids, were found to reduce Botrytis blight severity.
Bika et al. does not teach a method of applying CaP solutions to flowers.
Regarding claims 1-6, 11, and 13, claim 1 of ‘664 patent recites a method of treating live banana plants, comprising contacting them with an effective amount of a composition consisting of CaP in a concentration range of 5% to 12% (w/v) in water. Bika et al. teaches that calcium salts of organic acids can be used to inhibit microbial growth on cut flowers, like a rose, and preserve their vase life. It would have been prima facie obvious to a PHOSITA to use aqueous CaP compositions taught by ‘664 patent to contact cut flowers in view of Bika et al. to inhibit microbial growth on said cut flowers. The transition phrase “comprising” as it pertains to instant claim 1 encompasses the concentrations taught in claim 1 of ‘664 patent. Regarding claim 13, the inhibition of Botrytis cinera as a result of CaP treatment, is inherent upon application (MPEP §2112(I and V)).
Claims 7-8, 12, 14-17, and 20 are rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,408,664 (‘664 patent) in view of Rijneveldshoek (US PG Publication No. 2020/0113178A1), further in view of Bika et al (citation provided above).
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 7-8, 12, 14-17, and 20 are obvious over claims 1-20 of the ‘664 patent in view of Rijneveldshoek, further in view of Bika et al.
As mentioned previously, claim 1 of the ‘664 patent recites a method of treating live plants, specifically banana plants, comprising contacting them with an effective amount of a composition consisting of CaP in a concentration range of 5% to 12% (w/v) in water. Bika et al. teaches application to cut flowers such as a rose or petunia.
The combination of ‘664 patent and Bika et al. do not teach the specific concentrations of claims 7-8, 12, 14-17, and 20 or contacting cut flowers via spraying.
Rijneveldshoek teaches methods of applying specific concentrations of CaP in aqueous solutions to inhibit microbial growth on flowers, such as turfgrass and tulip bulbs. Additionally, the concentrations of the CaP can range from 0.1% to 12% (w/v) with water as the carrier (¶ [0041]). Various formulations of contacting live plants with CaP, such as watering, atomizing, scattering, spraying, etc. (¶ [0044]), are also taught. Bika et al. teaches that Botrytis cinera is a notorious pathogen discriminately affecting cut flowers.
Rijneveldshoek does not teach contacting cut flowers with CaP solutions.
Regarding claims 7-8, 12, 14-17, Rijneveldshoek teaches that CaP is used in concentration ranges from 0.1% to 12% (w/v), overlapping with the ranges instantly claimed. It also teaches that flowers can be contacted via spraying. It would have been prima facie obvious to choose the instantly claimed concentrations of CaP through the teachings of Rijnveledshoek and spray cut flowers in view of the collective teachings of Bika et al. as the method of contact based on those teachings. (MPEP §2144.05(I).
Regarding claim 20, the inhibition of Botrytis cinera as a result of CaP treatment, is inherent upon application (MPEP §2112(I and V)).
Claims 9-10 and 18-19 are rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,408,664 (“‘664 patent”) in view of the collective teachings of Rijneveldshoek (US PG Publication No. 2020/0113178A1) and Bika et al.(citation provided above), further in view of Horst (U.S. PG Publication No. 2004/0167220A1).
Although the claims at issue are not identical, they are not patentably distinct from each other because instant claims 9-10 and 18-19 are obvious over claims 1-20 of the ‘664 patent in view of the collective teachings of Rijneveldshoek and Bika et al., further in view of Horst.
As mentioned previously, claim 1 of the ‘664 patent recites a method of treating live plants, specifically banana plants, comprising contacting them with an effective amount of a composition consisting of CaP in a concentration range of 5% to 12% (w/v) in water. Rijneveldshoek teaches methods of applying specific concentrations of CaP in aqueous solutions to inhibit microbial growth on flowers, such as turfgrass and tulip bulbs. Additionally, the concentrations of the CaP can range from 0.1% to 12% (w/v) with water as the carrier (¶ [0041]). Bika et al. teaches that Botrytis cinera is a notorious pathogen discriminately affecting cut flowers.
The combination of ‘664 patent, Rijneveldshoek, and Bika et al. do not teach the acidic/pH limitations of instant claims 9-10 and 18-19.
Horst teaches environmentally safe fungicide and bactericide formulations comprising one or more preservatives in mildly acidic aqueous solutions, wherein the preservatives include organic acids and the salts and esters thereof (Abstract). Non-limiting example includes the use of propionic acid and its respective calcium salt (¶ [0019]). The teachings suggest that these compounds can be “. . . made to be much more highly efficacious in controlling pathogens on live plants if they are used in mildly acidic pH range of between 2.5 and 6.5” (¶ [0018]).
Horst does not teach a method of applying CaP solutions to cut flowers.
Regarding claims 9-10 and 18-19, claim 1 of the ‘664 patent recites contacting live banana plants with a 5% to 12% (w/v) CaP solution. It would have been prima facie obvious to apply CaP solutions to flowers through the teachings of ‘664 patent and Rijneveldshoek and further limit the scope of flowers to cut flowers in view of Bika et al. A skilled artisan would have found it prima facie obvious to formulate to composition as an acidic solution having a pH of about 5.5 (MPEP §2144.05(I)).
Conclusion
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/SAHIL CHANDER AGGARWAL/Examiner, Art Unit 1623
/ADAM C MILLIGAN/Supervisory Patent Examiner, Art Unit 1623