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
A new claim set was filed on 7/20/26 with the following:
Amended claims
1-13 and 15-16
Newly canceled claims
14 and 19-20
Newly added claims
21-22
Previously canceled claims
Previously withdrawn claims
17-18
Claims under instant examination
1-13, 15-16 and 19-22
Withdrawn Claim Objections/Rejections
All rejections pertaining to claims 14 and 19-20 are moot because the claims were cancelled in view of the amendments filed on 7/20/26.
The objections to claims 3, 9 and 13-15 for minor informalities are hereby withdrawn in view of the claim amendments filed on 7/20/26.
The rejections of claims 1-3, 6-7, 10-11, 14-15 and 20 under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention are hereby withdrawn in view of the claim amendments filed on 7/20/26.
The rejections of:
claims 1-7, 9-10, 12-14, 16 and 19-20 under 35 U.S.C. 103 as being unpatentable over Wang (CN 108101669; published: 06/01/18), in view of Guo et al. (CN 104945132; published: 9/30/15);
claim 8 under 35 U.S.C. 103 as being unpatentable over Wang (CN 108101669; published: 06/01/18) and Guo et al. (CN 104945132; published: 9/30/15) as applied to claims 1-7, 9-10, 12-14, 16 and 19-20 above, and further in view of Kinpara et al. (US 2020/0199096; published: 6/25/20);
claim 11 under 35 U.S.C. 103 as being unpatentable over Wang (CN 108101669; published: 06/01/18) and Guo et al. (CN 104945132; published: 9/30/15) as applied to claims 1-7, 9-10, 12-14, 16 and 19-20 above, and further in view of El-Ghamry et al. (Aus. J. Basic Applied Sciences, 3(2), 731-739, 2009); and
claim 15 under 35 U.S.C. 103 as being unpatentable over Wang (CN 108101669; published: 06/01/18) and Guo et al. (CN 104945132; published: 9/30/15) as applied to claims 1-7, 9-10, 12-14, 16 and 19-20 above, and further in view of Bi et al. (CN 112062631; published: 12/11/20)
are hereby withdrawn in view of the claim amendments filed on 7/20/26; specifically, the amendment to require an iodine-containing compound.
New Claim Rejections - 35 USC § 112(b)
Applicant' s claim amendments have necessitated the following new grounds of rejection.
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.
Claims 1-13, 15-16 and 21-22 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1-13, 15-16 and 21-22 are unclear in that claim 1 recites the limitation "the metal ion compound in line 12". There is insufficient antecedent basis for this limitation in the claim. In line 10, claim 1 recites “at least one metal ion compound” which encompasses multiple metal ion compounds (emphasis added). Thus, it is unclear whether just one, more than one, or all of the metal ion compounds are being referenced and must be part of the weight ratio limitation. Amending claim 1 to recite “wherein the weight ratio of the potassium monoformate or potassium diformate to the at least one metal ion compound …”, would overcome this rejection.
New Claim Rejections - 35 USC § 103
Applicant's claim amendments have necessitated the following new grounds of rejection.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-7, 9-10, 12-13, 16 and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Wang (CN 108101669; published: 06/01/18; of record), in view of Guo et al. (CN 104945132; published: 9/30/15; of record) and Tong (CN 101423440; published: 05/06/09).
The English language machine translations of CN 108101669 and CN 104945132 were attached previously. The English language machine translations of CN 101423440 are attached herein. The passages cited below which indicate the teachings of the ‘669, ‘132 and ‘440 publications are based on its English translation.
Determination of the Scope and Content of the Prior Art
(MPEP §2141.01)
Wang is directed to fertilizers characterized by high content of active ingredients and balanced nutrition and furthermore, meets the demands of plant growth and is easily absorbed by plants [Title].
With regards to instant claims 1-3, 7, 12-13 and 21, Wang teaches a particular fertilizer that comprises the following by weight: 5 parts of urea, 10 parts of diammonium phosphate, 5 parts of potassium formate (aka, potassium monoformate; reads on component a) of instant claim 1), 0.2 parts of potassium silicate (i.e., K+ ions in water; reads on metal ion compound of claims 1-3), 0.2 parts of zinc sulfate (reads on metal ion compound of instant claims 1 and 3), 0.2 parts of boric acid, 0.2 parts of manganese sulfate (water soluble salt and therefore in ionic form when in water, as in this case; Mn2+, SO42-; reads on metal ion compound of instant claims 1-3 and 21), and 0.2 parts of ferrous sulfate (reads on metal ion compound of instant claims 1 and 3) according to the parts by weight, 20 parts of nitrohumic acid, 2 parts of sorbitol (taught by Wang to act as a wetting agent which reads on instant claim 14), 1 part of ethylene glycol acetal, 1 part of S-abscisic acid (reads on instant claims 7 and 10), 1 part of potassium polyaspartate, 2 parts of potassium alginate, 1 part of chitosan, 49 parts of water (i.e., aqua filler material of instant claim 13) (underlined ingredients read on instant claims) [Embodiment 3].
With regards to the concentration/amount of ingredients in instant claims 1, 7 and 10, the abovementioned composition comprises 98 parts by weight. Therefore, 5 parts potassium formate equates to 5.1% by weight, based on the total weight of the composition, which reads on the range recited in instant claim 1. Of the metal compounds recited in instant claims 2-3 and 22, the abovementioned composition comprises 0.2 parts potassium silicate, 0.2 parts manganese sulfate, 0.2 parts ferrous sulfate, 1 part potassium polyaspartate and 2 parts potassium alginate (sum = 3.6 parts by weight). Therefore, 3.6 parts by weight in a composition with a total of 98 parts, means that the amount of the sum of the claimed metal compounds in the composition equals 3.6% by weight, which reads on the range recited in instant claim 1. It is noted that if the 2 parts potassium alginate is used to determine the weight ratio of potassium formate and metal ion compound, the weight ratio would be 5.1 wt% to 2 wt% which equates to 1:0.39 weight ratio, which reads on the claim 1 ratio limitation. The abovementioned composition comprises 1 part S-abscisic acid and 2 parts sorbitol (i.e., wetting agent) out of 98 parts by weight (i.e., 1.0% and 2.0% by weight of S-abscisic acid and sorbitol, respectively, based on the weight of the total composition).
With regards to the “synergistic” and “catalytic activity” limitations of instant claim 1, 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. In the instant case, Wang teaches the structural limitations of the claimed composition.
With regards to instant claims 4-5, since the additional ingredients listed in instant claim 4 are “optional”, no teaching of those ingredients are needed to read on the claim. However, as taught above, Wang teaches wherein diammonium phosphate is used as a nitrogen and phosphorus source (i.e., the primary nutrients), potassium formate and potassium silicate are used as the potassium source (i.e., the primary nutrients) and potassium silicate is used as the silica source (i.e., the secondary nutrients).
With regards to instant claim 6, Wang teaches a composition comprising 10 parts diammonium phosphate, 5 parts potassium formate and 0.2 parts potassium silicate, which as abovementioned read on the claimed primary nutrients. Therefore, the total amount of primary nutrients in the composition of Wang is 15.2 parts by weight (i.e., 15.5 wt% based on the total weight of the composition).
With regards to instant claim 9, Wang teaches wherein the abovementioned composition comprises chitosan and diammonium phosphate, which was taught to be an absorption nutrition ingredient and a nutritional ingredient, respectively.
With regards to instant claim 12, the fertilizer of Wang comprises the following ingredient (parts by weight) that comprise minerals and/or trace metals: diammonium phosphate (10), potassium formate (5), potassium silicate (0.2), zinc sulfate (0.2), boric acid (0.2), manganese sulfate (0.2), ferrous sulfate (0.2), potassium polyaspartate (1) and potassium alginate (2), as phosphorus, potassium, zinc and boron are minerals and manganese and iron are trace metals. The total minerals and/or trace metals in the composition is 9 parts per weight (i.e., 9.2 wt%, based on the total weight of the composition). Wang teaches that its fertilizer is applied at 3-5 kg/acre (i.e., 3000-5000 g/acre) and therefore, the amount of applied total minerals and/or trace metals is approximately 275-459 g/acre. As indicated in MPEP §2144.05(I): “In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists.”
With regards to instant claim 16, with 49 parts water in the above composition, the form is a liquid.
Ascertainment of the Difference Between the Scope of the Prior Art and Claims
(MPEP §2141.012)
With regards to the ratio recited in instant claim 1, the weight ratio of potassium monoformate and the sum of metal compounds in the composition of Wang is 5.1:3.6 (or approximately 17:12). Approximately 17:2 does not read on the ratio of 1:0.05 or 1:0.5 or 1:1, as required by instant claim 1.
Wang does not teach wherein the abovementioned composition further comprises an iodine-containing compound, as required by instant claim 1; and specifically, wherein the iodine-containing compound is potassium iodide, as required by instant claim 22. However, such deficiencies are cured by Tong.
Tong is directed to fertilizer compositions. Tong teaches that potassium iodide can treat crop surface disease, virus disease and vascular bundle disease [paragraph before examples].
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
The ratio of potassium mono- or di-formate to metal compounds is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal ratio in order to best achieve the desired results as such would provide advantageous biological effect. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. 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. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Guo teaches that potassium formate provides plant nutrition. With regards to the metal compounds, Wang teaches that zinc sulfate is a kind of common fertilizer for supplementing crop zinc microelement, manganese sulfate as a fertilizer, ferrous sulfate adjusts soil acidity, promotes chlorophyll formation and can prevent flowers/trees from yellowing. The Examiner considers it prima facie obvious to optimize the amounts of any biologically active agent to achieve their known biological effect, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amounts of each potassium formate and the different metal compounds would impact the biological effects in the plants and therefore be an optimizable variable.
It is also noted that the 17:12 ratio taught by Wang is close to the 1:1 claimed ratio. As indicated in MPEP §2144.05(I): a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Wang and Tong are both directed to fertilizers/plant growth compositions for crops. Based on these teachings, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the composition of Wang by further incorporating potassium iodide to achieve the predictable result of obtaining a composition suitable for plant growth. One of ordinary skill in the art would have been motivated to do so because Tong teaches that potassium iodide (and other iodine-containing compounds) incorporated into fertilizers advantageously treats crop surface disease, virus disease and vascular bundle disease.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the invention was effectively filed, as evidenced by the references, especially in the absence of evidence to the contrary.
Thus, the claimed invention was prima facie obvious before the effective filing date of the claimed invention.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Wang (CN 108101669; published: 06/01/18), Guo et al. (CN 104945132; published: 9/30/15) and Tong (CN 101423440; published: 05/06/09) as applied to claims 1-7, 9-10, 12-13, 16 and 21-22 above, and further in view of Kinpara et al. (US 2020/0199096; published: 6/25/20).
The English language machine translations of CN 108101669 and CN 104945132 were attached previously. The English language machine translations of CN 101423440 are attached herein. The passages cited below which indicate the teachings of the ‘669, ‘132 and ‘440 publications are based on its English translation.
Determination of the Scope and Content of the Prior Art
(MPEP §2141.01)
Wang teaches the limitations of instant claims 1-7, 9-10, 12-14, 16 and 19-20 (see rejection above for details).
With regards to instant claim 8, Wang teaches a fertilizer composition that comprises 0.2 parts of boric acid, amongst other ingredients (see rejection above for details) [Embodiment 3]. The entire composition has 98 parts by weight; therefore, boric acid is present in an amount of 2.2% by weight, based on the total weight of the composition.
Ascertainment of the Difference Between the Scope of the Prior Art and Claims
(MPEP §2141.012)
Although Wang teaches including 2.2 wt% boric acid, Wang does not teach further incorporating calcium formate, as required by instant claim 8. However, such deficiency is cured by Kinpara.
Kinpara is directed to compositions used in agriculture. Kinpara teach that abscisic acid (i.e., an ingredient in the composition of Wang) and calcium formate are both plant growth regulators [0260].
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
The idea for combining compounds each of which is known to be useful for the same purpose, in order to form a composition which is to be used for the same purpose, flows logically from their having been used individually in the prior art. See In re Kerkhoven 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). As shown by the recited teachings, the instant claims define nothing more than the concomitant use of conventional plant growth regulators (e.g., abscisic acid and calcium formate) used in fertilizers. It would follow that the recited claims define prima facie obvious subject matter. (See MPEP 2144.06).
The amount of calcium formate and boric acid is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal amount in order to best achieve the desired results as such would provide advantageous biological effect. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. 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. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Kinpara teach that calcium formate behaves as a plant growth regulator and Wang teaches inclusion of boric acid in its fertilizer composition that provides plant growth, easy absorption into plants, reduced waste and pollution to the environment. The Examiner considers it prima facie obvious to optimize the amounts of any biologically active agent to achieve their known biological effect, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amounts of calcium formate and boric acid would impact the efficacy of the fertilizer and therefore be an optimizable variable.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the invention was effectively filed, as evidenced by the references, especially in the absence of evidence to the contrary.
Thus, the claimed invention was prima facie obvious before the effective filing date of the claimed invention.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Wang (CN 108101669; published: 06/01/18), Guo et al. (CN 104945132; published: 9/30/15) and Tong (CN 101423440; published: 05/06/09) as applied to claims 1-7, 9-10, 12-13, 16 and 21-22 above, and further in view of El-Ghamry et al. (Aus. J. Basic Applied Sciences, 3(2), 731-739, 2009).
The English language machine translations of CN 108101669 and CN 104945132 were attached previously. The English language machine translations of CN 101423440 are attached herein. The passages cited below which indicate the teachings of the ‘669, ‘132 and ‘440 publications are based on its English translation.
Determination of the Scope and Content of the Prior Art
(MPEP §2141.01)
Wang teaches the limitations of instant claims 1-7, 9-10, 12-14, 16 and 19-20 (see rejection above for details).
Ascertainment of the Difference Between the Scope of the Prior Art and Claims
(MPEP §2141.012)
Although Wang teaches including nutritional products and/or growth stimulation agents, Wang does not specifically teach wherein the nutritional products and/or growth stimulation agents are selected from amino acid powders and essential oils in a concentration ranging from 0.1 to 5%, as required by instant claim 11. However, such deficiency is cured by El-Ghamry.
El-Ghamry is directed to plant growth, yield and disease resistance [Title]. El-Ghamry teaches that humic acid (an ingredient in the fertilizer composition of Wang) and amino acids and humic acids as a foliar application improves growth and mineral content [Abstract].
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
The idea for combining compounds each of which is known to be useful for the same purpose, in order to form a composition which is to be used for the same purpose, flows logically from their having been used individually in the prior art. See In re Kerkhoven 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). As shown by the recited teachings, the instant claims define nothing more than the concomitant use of conventional plant growth regulators (e.g., humic acid and amino acids) used in fertilizers. It would follow that the recited claims define prima facie obvious subject matter. (See MPEP 2144.06).
The amount of amino acid powders is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal amount in order to best achieve the desired results as such would provide advantageous biological effect. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. 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. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, El-Ghamry teaches that amino acids enhance plant growth and mineral content [Abstract]. The Examiner considers it prima facie obvious to optimize the amounts of any biologically active agent to achieve their known biological effect, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amounts of amino acids would impact the efficacy of the fertilizer and therefore be an optimizable variable.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the invention was effectively filed, as evidenced by the references, especially in the absence of evidence to the contrary.
Thus, the claimed invention was prima facie obvious before the effective filing date of the claimed invention.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Wang (CN 108101669; published: 06/01/18), Guo et al. (CN 104945132; published: 9/30/15) and Tong (CN 101423440; published: 05/06/09)as applied to claims 1-7, 9-10, 12-13, 16 and 21-22 above, and further in view of Bi et al. (CN 112062631; published: 12/11/20).
The English language machine translations of CN 108101669 and CN 104945132 were attached previously. The English language machine translations of CN 101423440 are attached herein. The passages cited below which indicate the teachings of the ‘669, ‘132 and ‘440 publications are based on its English translation.
Determination of the Scope and Content of the Prior Art
(MPEP §2141.01)
Wang teaches the limitations of instant claims 1-7, 9-10, 12-14, 16 and 19-20 (see rejection above for details).
Ascertainment of the Difference Between the Scope of the Prior Art and Claims
(MPEP §2141.012)
Wang does not teach wherein the composition further comprises a surfactant selected from anionic, non-ionic, and cationic surfactants and is present in an amount of 0.1 to 10% of total composition, as required by instant claim 15. However, such deficiency is cured by Bi.
Bi is directed to microelement water soluble fertilizer [Title]. Bi teaches fertilizer comprising two or more surfactants such as lignin, K12, NNO and PEG 400-20000 [Disclosure of Invention]. Bi teaches that the surfactant improves the spreadability, diffusivity and permeability of the fertilizer of the surface of the crops; and furthermore, has the effects of chelating, promoting the growth of the crops and can improve the utilization efficiency of the fertilizer [Disclosure of Invention].
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
Wang and Bi are both directed to fertilizer compositions. Based on these teachings, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the fertilizer of Wang by further incorporating a surfactant (anionic, non-ionic or cationic) to achieve the predictable result of obtaining a composition suitable for providing an improved fertilizer. One of ordinary skill in the art would have been motivated to do so because Bi teach that it is advantageous for spreadability, diffusivity and permeability of the fertilizer of the surface of the crops; and furthermore, has the effects of chelating, promoting the growth of the crops and can improve the utilization efficiency of the fertilizer [Disclosure of Invention].
The amount of surfactant is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal amount in order to best achieve the desired results as such would provide advantageous biological effect. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. 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. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). In the instant case, Bi teaches that the surfactant improves the spreadability, diffusivity and permeability of the fertilizer of the surface of the crops; and furthermore, has the effects of chelating, promoting the growth of the crops and can improve the utilization efficiency of the fertilizer [Disclosure of Invention]. The Examiner considers it prima facie obvious to optimize the amounts of any biologically active agent to achieve their known biological effect, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amounts of surfactant would impact the spreadability, diffusivity and permeability of the fertilizer and therefore be an optimizable variable.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the invention was effectively filed, as evidenced by the references, especially in the absence of evidence to the contrary.
Thus, the claimed invention was prima facie obvious before the effective filing date of the claimed invention.
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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1-13, 15-16 and 19-22 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-11 of copending Application No. 18/551,827 in view of Wang (CN 108101669). Although the conflicting claims are not identical, they are not patentably distinct from each other because both claim sets are drawn to the same composition comprising potassium mono- or di-formate, growth hormones (0.05-10%), adjuvants, primary nutrients (e.g., gibberellic acid, melatonin, abscisic acid), secondary nutrients (e.g., Zn, B, Ca, Mn, Fe, Cu, Co, Mg) and amino acids, in the form of, for example, a liquid. The difference is that the copending application recites an additional component to the composition: organic acids (e.g., acetic acid), used to stimulate plant growth via application to plants. However, the instant claims use the “comprising” language and therefore the additional steps/components in the copending claims are not excluded. Another difference is that the instant independent claim requires an additional ingredient: metal oxides/ions or metal salts/complexes (e.g., zinc sulfate). However, using metal oxides, ions, salts, or complexes were known and routinely used in the prior art as shown in Wang (see Embodiment 3). Therefore, it would have been obvious to one of ordinary skill in the art to further incorporate metal oxides, ions, salts, or complexes into fertilizer compositions to provide plant nutrition. Thus, the instant claims and the application claims are obvious variants.
This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented.
Claims 1-13, 15-16 and 19-22 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-7 and 9-14 of copending Application No. 18/551,823 in view of Wang (CN 108101669). Although the conflicting claims are not identical, they are not patentably distinct from each other because both claim sets are drawn to the same composition comprising one or more potassium salt of organic acids (e.g., potassium formate), growth hormones (0.05-5%), primary nutrients (e.g., gibberellic acid, melatonin, abscisic acid), secondary nutrients (e.g., Zn, B, Ca, Mn, Fe, Cu, Co, Mg) and amino acids, in the form of, for example, a liquid, used to stimulate plant growth via application to plants. The difference is that the copending application recites an additional component to the composition: aliphatic or aromatic carboxylic acids (e.g., formic acid or benzoic acid), antioxidant (e.g., sodium nitroprusside) and phenolic precursors. However, the instant claims use the “comprising” language and therefore the additional steps/components in the copending claims are not excluded. Another difference is that the instant independent claim requires an additional ingredient: metal oxides/ions or metal salts/complexes (e.g., zinc sulfate). However, using metal oxides, ions, salts, or complexes were known and routinely used in the prior art as shown in Wang (see Embodiment 3). Therefore, it would have been obvious to one of ordinary skill in the art to further incorporate metal oxides, ions, salts, or complexes into fertilizer compositions to provide plant nutrition. Thus, the instant claims and the application claims are obvious variants.
This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented.
Response to Arguments
Applicants’ arguments with regard to the previously cited prior art are moot in view of the withdrawn claim rejections. To the extent that Applicants’ arguments are pertinent to the newly applied rejections, they are addressed as follows:
Applicants argue that Wang mentions potassium formate merely as one of many possible components and not a central or defining compositional parameter [Remarks: p. 8].
This is not found persuasive. In response, and as indicated in the instant rejection, the Examiner relies on a particular embodiment taught by Wang to read on the potassium formate limitations [see rejection for details as well as Wang, Embodiment 3].
Applicants argue that Wang lists metal salts but provides no teaching or suggestion of their proportions relative to the potassium formate [Remarks: p. 8]. Applicants indicate that Wang only provides independent ranges for certain trace metal components without any teaching or suggestion that their relative proportions to potassium formate should be controlled or coordinated [Remarks: p. 8].
This is not found persuasive. In response, and as indicated in the instant rejection, the Examiner shows how the data in Embodiment 3 can read on the ratio limitations of instant claim 1. It is further noted, that Applicants have not provided any data showing that such ratio is critical. "The law is replete with cases in which the difference between the claimed invention and the prior art is some range or other variable within the claims. These cases have consistently held that in such a situation, the applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range." In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990). See MPEP §2144.05 III. Applicants have not provided any evidence showing that the claimed ranges are critical.
Applicants’ request to hold a rejection in abeyance [Remarks: p. 11] is not a proper response to a rejection. Rather, a request to hold a matter in abeyance may only be made in response to an objection or requirements as to form (see MPEP 37 CFR 1.111(b) and 714.02). Accordingly, the rejection will be maintained until a terminal disclaimer is filed or claims are amended to obviate the rejection.
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.
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/GENEVIEVE S ALLEY/ Primary Examiner, Art Unit 1617
