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 .
Election/Restriction
REQUIREMENT FOR UNITY OF INVENTION
As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.
The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e).
When Claims Are Directed to Multiple Categories of Inventions:
As provided in 37 CFR 1.475 (b), a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to one of the following combinations of categories:
(1) A product and a process specially adapted for the manufacture of said product; or
(2) A product and a process of use of said product; or
(3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or
(4) A process and an apparatus or means specifically designed for carrying out the said process; or
(5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process.
Otherwise, unity of invention might not be present. See 37 CFR 1.475 (c).
Restriction is required under 35 U.S.C. 121 and 372.
This application contains the following inventions or groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1.
In accordance with 37 CFR 1.499, applicant is required, in reply to this action, to elect a single invention to which the claims must be restricted.
Group I, claim(s) 1-16 and 19-20, drawn to a composition comprising i) potassium monoformate or diformate in an amount of 1 to 20%; and ii) at least one metal compound in the form of metal oxides/ions or metal salts/complex in an amount of 0.1 to 50% of the total composition; wherein the ratio of i:ii varies from 1:0.05 or 1:0.5 or 1:1.
Group II, claim(s) 17, drawn to a method of making the composition of claim 1 by a) blending active ingredients and adding surfactant and adjuvants to obtain a powder form; b) mixing an aqua filler with the active ingredients to obtain a liquid form; c) granulating the active ingredients with a filler material to obtain a granule form; and d) dissolving the powder, liquid or granule form obtained in above step a), b) or c) in water and applying on crops.
Group III, claim(s) 18, drawn to a method of improving the catalytic activity of metalloenzymes by spraying the composition of claim 1 on leaves or by mixing in soil.
The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons:
The three groups lack unity of invention because even though the inventions of these groups require the technical feature of a composition comprising i) potassium monoformate or diformate in an amount of 1 to 20%; and ii) at least one metal compound in the form of metal oxides/ions or metal salts/complex in an amount of 0.1 to 50% of the total composition; wherein the ratio of i:ii varies from 1:0.05 or 1:0.5 or 1:1, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Wang (CN 108101669; published: 6/1/18). Wang teaches a fertilizer composition comprising by weight, 2 parts of urea, 5 parts of diammonium phosphate, 2 parts of potassium formate (i.e., potassium monoformate), 0.1 part of potassium silicate, 0.1 part of zinc sulfate, 0.1 part of boric acid, 0.1 part of manganese sulfate, and 0.1 part of ferrous sulfate are weighed in parts by weight first, 15 parts of nitrohumic acid, 1 part of sorbitol, 0.5 parts of ethylene glycol acetal, 0.5 part of S-inducing hormone, 0.5 part of potassium polyaspartate, 1 part of potassium alginate, 0.5 part of chitosan and 41 parts of water [Detailed Description].
During a telephone conversation with Jay Lessler on 2/16/26 a provisional election was made without traverse to prosecute the invention of Group I, claims 1-16 and 19-20. Affirmation of this election must be made by applicant in replying to this Office action. Claims 17-18 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
Thus, instant claims 1-16 and 18-19 are under current examination.
Claim Objections
Claims 3, 9 and 13-15 are objected to because of the following informalities:
Claim 3 recites “…wherein said or metal salts/complexes”. The Examiner suggests deleting the “or” in order to obviate the objection.
Claim 9 recites “…wherein said composition further comprises iodine, hormones, additional nutritional products, growth stimulation agents, nitrogenous compounds with minerals, and minerals and trace metals”. The Examiner suggests deleting the first “and” in order to obviate the objection as it is proper to include the “and” between only the last two species in a list.
Claim 13 recites “…wherein said composition optionally furthers comprises…”. The examiner suggests deleting the “s” at the end of “further” in order to obviate the objection.
Claim 13 recites “…surfactant and filler and aqua filler material”. The Examiner suggests deleting the first “and” in order to obviate the objection as it is proper to include the “and” between only the last two species in a list.
Claim 14 recites “…suspension, agents, wetting agents are present…”. There is not “and” or “or” between the last two species in the list.
Claim 15 does not include an “and” between the last two species in the list. The Examiner suggests adding “add between “carboxy methyl cellulose (CMC),” and “lignosulfonates” in order to obviate the objection.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 1-3, 6-7, 10-11, 14-15 and 20 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 (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1, 6-7, 10-11, 14-15 and 20 are unclear for lack of unit of measurement. Claim 1 recites “potassium monoformate or potassium diformate in an amount of 1 to 20%; and at least one metal compound in the form of metal oxides/ions or metal salts/complex in an amount of 0.1 to 50% of the total composition” and “wherein the ratio of potassium monoformate or potassium diformate and metal ion compounds varies from 1:0.05 or 1:0.5 or 1:1”. Similarly, claims 6-7, 10-11, 14-15 and 20 recite “% of the total composition” or “concentration ranging from #0.1 to 5%” (see claim 11) without stating the unit of measurement (e.g., vol, weight). The claim does not recite the unit of measurement for the “% of total composition”, the “ratio” or the “concentration”. Thus, the metes and bounds of the claims cannot be determined and the claims are indefinite.
Claim 1 is unclear. Claim 1 recites “wherein the ratio of potassium monoformate or potassium diformate and metal ion compounds varies from 1:0.05 or 1:0.5 or 1:1”. Component b) of claim 1 is “at least one metal compound in the form of metal oxides/ions or metal salts/complex”. Therefore, it is unclear if the ratio limitation is only required when the “at least one metal compound” is a metal ion compound or if such limitation is narrowing component b) to only ions. If the intent was for the ratio to describe the relationship between component a) and b), the Examiner suggests amending claim 1 to recite “wherein the ratio of the potassium monoformate or potassium diformate and the metal
Claim 1-3 are unclear. Claims 1-2 recites “metal oxides/ions”; however, not all metal oxides are ion and not all metal ions are oxides and therefore it is unclear how to interpret this phrase. Is it metal oxides or metal ions? Or is it narrowed to only metal oxides that are also metal ions? The same indefiniteness is present in the phrase “metal salts/complex” recited in claims 1 and 3. Thus, the metes and bounds of the claims cannot be determined and the claims are indefinite.
Regarding claims 2-3, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 2 is unclear. The claims recite “metal oxide/ion” species followed a species of the species in parentheses. For example, the claim recites “Copper (Cu2+)” among others. There are other types of copper metal oxides or copper ions than Cu2+ such as Cu+, copper(I) oxide, copper(II) oxide and copper peroxide. The species recited in the parentheses (e.g., Cu2+) renders the claim indefinite because it is unclear whether the limitation(s) within the parentheses are part of the claimed invention. See MPEP § 2173.05(d).
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 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, 12-14, 16 and 19-20 are rejected 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).
The English language machine translations of CN 108101669 and CN 104945132 are attached herein. The passages cited below which indicate the teachings of the ‘669 and ‘132 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, 12-14 and 19, 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 or salts of claims 1-3), 0.2 parts of zinc sulfate (reads on metal 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 compound of instant claims 1-3), and 0.2 parts of ferrous sulfate (reads on metal 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, 10 and 14 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, 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. 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 claims 1 and 19, 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 claims 6 and 20, 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.
Although Wang teaches
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, promote 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).
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) 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).
The English language machine translations of CN 108101669 and CN 104945132 are attached herein. The passages cited below which indicate the teachings of the ‘669 and ‘132 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) 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).
The English language machine translations of CN 108101669 and CN 104945132 are attached herein. The passages cited below which indicate the teachings of the ‘669 and ‘132 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) 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).
The English language machine translations of CN 108101669, CN 104945132 and CN 112062631 are attached herein. The passages cited below which indicate the teachings of the ‘669, ‘132 and ‘631 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 1-16 and 19-20 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 1-16 and 19-20 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.
Conclusion
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/GENEVIEVE S ALLEY/ Primary Examiner, Art Unit 1617