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 .
Status of claims
Claims 1-8 are pending and under examination in this office action.
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 1-8 recite that “solution contains at least 253 peptides… “ However the specification does not show more than 253 peptides. The term at least should have a more than 253 peptides. Clarification is required.
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.
Claim(s) 1-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Juarez et al (WO 2023/001946) in view of Szoeke et l. (US 8,617282) and Wei et al. (WO 2016/054310)
Juarez et al teach a process for converting keratin into a liquid mixture
comprising peptides and/or amino acids (see Abstract); thereby constituting a keratin hydrolysis peptide (KHP) solution. Juarez's invention is suitable to be used in several
technical fields such as, e.g., agriculture, for example as a bio-stimulant (see pg. 1, lines
4-5). Juarez teaches that the liquid mixture may be used to improve and/or stimulate
one or more of germination, rooting, growth, flowering, curdling and maturation of
plants and fruits (see pg. 11, lines 6-10). Furthermore, Juarez teaches that
advantageously, the liquid mixture including peptides and/or amino acids obtained
through the process of the invention, can be applied in its different variants to any type
of plant, at any stage of plant development, on any soil and form of cultivation, and is
also potentially usable in organic farming (see pg. 3, lines 10-14). The solution can be
used as a fertilizer. Thereby constituting a method of using a KHP solution on a cotton
plant to improve and/or stimulate germination, rooting, growth, flowering, curdling and
maturation of plants. Juarez et al also teach that the decomposed keratin containing material is milled into small pieces (microns) that are then diluted into water in a proportion of 15%-40% w/v (reading on diluted in ratios of 1:50-500 and applied to soil).
However, Juarez fails to teach starting the KHP with feathers.
Although Juarez fails to teach the included peptides nonetheless the composition can be used for stimulation, germination growth etc. Additionally teaches in Example 1 deriving keratin from Pigs hair. It should be noted that the keratin is keratin, and the funcrtion is considered not where it is gotten from.The reference also teaches applying temperature to degrade or rupture the keratin fiber (see pg 6, lines 22-27), and that the molecular weight is greater than 10000 Da having 15-30% peptides (see pg 3, lines 30+)
Szoeke teach a method of preparing fertilizer using feather (see col. 2, lines 3-6) wherein the it contains from 5-50% of keratin from feathers (see column 2, lines 6+).
Cheng teaches hydrolysis of feathers to produce amino acids with a temperature from 180-320ºC (see reference).
Wei teaches that peptides composition can treat plants or seeds such as cotton.
Therefore it would have been obvious to one of ordinary skill in the art to have expanded the teaching of Juarez and use feather because Juarez does teach the advantages of using birds feathers based on the high content of keratin and because Wei does teach the importance of peptides in the plant growth etc. Therefore one of ordinary skill in the art would have been motivated to combine the cited art to result in a reasonable expectation of success. Thus the claims would have been prima facie obvious at the time the claimed invention was made.
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- 8 are provisionally rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1-5 of U.S. Patent No. 125272690. Although the conflicting claims are not identical, they are not patentably distinct from each other. The reasons are as follows:
· Both sets of claims refer to method of using a keratin hydrolysis peptide (KHP) solution to a cotton plant for the enhancement of the plant’s drought tolerance, comprising the steps of:
a. Preparing the KHP solution by mixing 50 kg of feathers whose content is 50% water and 40 kg of water in a sealed container;
b. hydrolyzing the mixture in the container with a temperature and pressure setting of 185℃ and 12 kg/cm2 for a duration of 80 minutes;
c. using a mass spectrometer to confirm the combination of peptides in the solution to contain at least 253 peptides as listed in the specification where their molecular masses are between 500 and 4,000 Daltons, and the concentration is in the range of 3.0 x105 ~ 4.5 x105 ppm;
d. applying the solution to the soil around cotton plants.
The claims differ in that the instant claims are drawn to cotton and the patented claims are drawn to a soybean using the same composition. .
The current application claims are obvious variation of the instant application claims
· It would have been obvious to one of ordinary skill in the art to have used the instant claims in practicing the copending invention with a reasonable expectation of success.
In view of the foregoing, the copending application claims and the current application claims are obvious variations of each other.
Claims 1 - 8 are provisionally rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1-3 of U.S. Patent Application No. 18409790. Although the conflicting claims are not identical, they are not patentably distinct from each other. The reasons are as follows:
· Both sets of claims refer to method of using a keratin hydrolysis peptide (KHP) solution to a cotton plant for the enhancement of the plant’s drought tolerance, comprising the steps of:
a. Preparing the KHP solution by mixing 50 kg of feathers whose content is 50% water and 40 kg of water in a sealed container;
b. hydrolyzing the mixture in the container with a temperature and pressure setting of 185℃ and 12 kg/cm2 for a duration of 80 minutes;
c. using a mass spectrometer to confirm the combination of peptides in the solution to contain at least 253 peptides as listed in the specification where their molecular masses are between 500 and 4,000 Daltons, and the concentration is in the range of 3.0 x105 ~ 4.5 x105 ppm;
d. applying the solution to the soil around cotton plants.
The current application claims are obvious variation of the instant application claims
· It would have been obvious to one of ordinary skill in the art to have used the instant claims in practicing the copending invention with a reasonable expectation of success.
In view of the foregoing, the copending application claims and the current application claims are obvious variations of each other.
Claims 1 - 8 are provisionally rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1 – 4 of U.S. Patent Application No. 18409792. Although the conflicting claims are not identical, they are not patentably distinct from each other. The reasons are as follows:
· Both sets of claims refer to method of using a keratin hydrolysis peptide (KHP) solution to a cotton plant for the enhancement of the plant’s drought tolerance, comprising the steps of:
a. Preparing the KHP solution by mixing 50 kg of feathers whose content is 50% water and 40 kg of water in a sealed container;
b. hydrolyzing the mixture in the container with a temperature and pressure setting of 185℃ and 12 kg/cm2 for a duration of 80 minutes;
c. using a mass spectrometer to confirm the combination of peptides in the solution to contain at least 253 peptides as listed in the specification where their molecular masses are between 500 and 4,000 Daltons, and the concentration is in the range of 3.0 x105 ~ 4.5 x105 ppm;
d. applying the solution to the soil around cotton plants.
The current application claims are obvious variation of the instant application claims
· It would have been obvious to one of ordinary skill in the art to have used the instant claims in practicing the copending invention with a reasonable expectation of success. The claims of the instant and the copending overlaps in both the concentration and masses.
In view of the foregoing, the copending application claims and the current application claims are obvious variations of each other.
Claims 1 - 8 are provisionally rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1 - 8 of U.S. Patent Application No. 18758198. Although the conflicting claims are not identical, they are not patentably distinct from each other. The reasons are as follows:
· Both sets of claims refer to method of using a keratin hydrolysis peptide (KHP) solution to a cotton plant for the enhancement of the plant’s drought tolerance, comprising the steps of:
a. Preparing the KHP solution by mixing 50 kg of feathers whose content is 50% water and 40 kg of water in a sealed container;
b. hydrolyzing the mixture in the container with a temperature and pressure setting of 185℃ and 12 kg/cm2 for a duration of 80 minutes;
c. using a mass spectrometer to confirm the combination of peptides in the solution to contain at least 253 peptides as listed in the specification where their molecular masses are between 500 and 4,000 Daltons, and the concentration is in the range of 3.0 x105 ~ 4.5 x105 ppm;
d. applying the solution to the soil around cotton plants.
The current application claims are obvious variation of the instant application claims
· It would have been obvious to one of ordinary skill in the art to have used the instant claims in practicing the copending invention with a reasonable expectation of success.
In view of the foregoing, the copending application claims and the current application claims are obvious variations of each other.
Claims 1-8 are provisionally rejected under the judicially createddoctrine of double patenting over claims 1-6 of US. Patent application 18536211, claims 1-6 of 18536214, 1-9 of 18639751 1-3 of 18639950, 18642007 (1-3); 18642487(1-8); 18642445 (1-4); 18642487 (1-8); 18643738, 18645293, 18645307 (1-6); 18645354; 18645293; 18658824; 18658834; 1866598; 18671837, 18671848; 18748493, 18758140; 18774885, 18/778049; 18827519; 18898195 and 18668598 and the Examiner might have missed some. Applicant should consider all and file a terminal disclaimer over all. Although the conflicting claims are not identical, they are not patentably distinct from each other. They differ only in the type of plant species with overlapping method of using a keratin hydrolysis product. Because the same procedure is used it would have been obvious to one of ordinary skill in the art to have used the instant claims to practice the copending claims.
In looking in continuity data, it is noted that applicant has numerous issued patent and pending applications encompassing the same or similar subject matter of the instant application. Applicant should review all subject matter considered the same or similar, and submit the appropriate Terminal Disclaimer(s).
In view of the foregoing, the copending application claims and the current application claims are obvious variations of each other.
No claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHIRLEY V GEMBEH whose telephone number is (571)272-8504. The examiner can normally be reached M-F 9am-6pm.
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/SHIRLEY V GEMBEH/Primary Examiner, Art Unit 1615 8/10/26
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