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/Restrictions
Applicant's election with traverse of Group I (claims 1-13) in the reply filed on February 26, 2024 is acknowledged. The traversal is on the ground(s) that searching all inventions may be found in same relevant art without imposing serious burden on the examiner. This is not found persuasive because, as ndicated in the restriction requirement, non-prior art issues must be also considered during examination.
The requirement is still deemed proper and is therefore made FINAL.
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 3, 11 and 12 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, 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.
Claim 3 requires “one or more of nitrogen (N), phosphorus (P), potassium (K), … and additional trace minerals”. It is not clear whether these “additional trace minerals” is a required limitation. The claim is also vague and indefinite as it is unclear what these additional trace minerals applicant means to include in the scope of the invention.
The term “optionally” in Claims 11 and 12 renders the claims indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 4 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 4 depends on claim 1 and requires “one or more vitamins, minerals, enzymes, and amino acids.” Since claim 1 requires an “enzyme blend” which already contains one or more enzymes by definition, the recitation of enzymes as an alternative limitation encompasses an embodiment which does not further limit the base claim. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 4, 12 and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhang et al. (CN 109090145 A, published December 28, 2018) as evidenced by Bennett et al. (US 20180163203 A1, published on June 14, 2018) (“Bennett” hereunder).
The present claim 1 is directed to a composition for promoting plant health and growth, the composition comprising: montmorillonite clay (MMT); and an enzyme blend;
wherein the enzyme blend comprises plant growth-promoting fungi (PGPF) or the enzyme blend comprises PGPF and plant growth-promoting rhizobacteria (PGPR); and
optionally, wherein the MMT and enzyme blend are present in a weight ratio of MMT:
enzyme blend from 95:5 to 5:95.
Zhang discloses a chafer natural killing preparation comprising montmorillonite powder and Trichoderma Harzianum, calcium sulphate, silicate bacteria, selenate, manganese, etc. As the fungi naturally releases enzymes such as cellulase and hemicellulase, the composition inherently contains an enzyme and meets the enzyme blend comprising a plant growth promoting fungi. See Bennett [0032, 0033]. Example 1 teaches that the composition is in the form of granules. See the present claim 13.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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, 2, 4 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over AgroSEB (“Biological compound to increase crop quality and yield”, Hung Thinh Vietnam Trade Promotion and Investment Services Co., 2020) in view of Riba et al. (FR 2648677 A, published on December 28, 1990) (“Riba” hereunder).
AgroSEB discloses an environmentally friendly blend of enzymes comprising many strains of beneficial bacteria, which promotes root growth and increases the absorption of nutrients, thereby resulting in increased crop quality and yield. The reference teaches that the product is used to soak seeds or mixed with water and sprayed on the soil.
AgroSEB fails to teach montmorillonite clay.
Riba discloses pesticide compositions based on microorganisms, the composition comprising entomopathogenic fungus and montmorillonite clay as the support for the fungus. See translation, abstract. The reference teaches that the composition is prepared by a fermentation process in solid medium and can be used by spreading directly as it leaves the fermenter without further treatment.
Regarding claim 1, it would have been obvious to one of ordinary skill in the art before the effective filing date to modify the teachings of AgroSEB and use montmorillonite clay as a carrier in a dry formulation as motivated by Riba. The skilled artisan would have been motivated to do so, as both references disclose soil conditioner comprising enzymes and microbes to improve plant growth, and Riba teaches using the clay as a solid carrier which enables spreading of the final product without further treatment. As both compositions contain enzymes and microbes useful for agricultural purposes, the skilled artisan would have had a reasonable expectation of successfully combining the references and producing a stable montmorillonite clay comprising the AgroSEB composition which can be conveniently used without further treatment. See also claim 4, which requires enzymes.
Regarding claim 2, Riba teaches that the support particles have a size between 100-1000 microns. See translation, P. 5, second full paragraph.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over AgroSEB and Riba as applied to claims 1, 2, 4 and 13 and as evidenced by Tang (US 20100075826 A1, published on March 25, 2010).
Regarding claim 3, it is well known that montmorillonite clay commonly contains calcium. See Tang, [0090].
Claims 5-12 are rejected under 35 U.S.C. 103 as being unpatentable over AgroSEB and Riba as applied to claims 1, 2, 4 and 13, and further in view of applicant’s own disclosure.
Although AgroSEB does not disclose the specific enzymes and microbes in the formulation, applicant discloses that the product was commercially available and preformulated with A. orzae or B. subtilis, with minerals, vitamins and amino acids. It is viewed that the recited components of the present claims 5-12 were pre-existing contents of the purchased product available before the effective filing date of the present application, unless shown otherwise.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Singh et al. (“Influence of Ethophon and AgroSEB on sprouting and cane field of sugarcane ratoon”, Indian Sugar, 2009, vol 58, no. 11, 19-22, ref 10) teaches that application of Agroseb, which contains microorganisms and enzymes, on a cane field improved in sprouting and cane yield compared to the control.
Trevino et al. (US 8409822 B2, published April 2, 2013) disclose compositions for delivery of enzymes in a dry state, the composition comprising porous silica loaded with enzymes within the pores of the silica granules.
Moussaoui (US 20200214286 A1, published on July 9, 2020) teaches biostimulants for enhancing crop productivity and for root development of plants. The reference discloses Fertiroots® composition comprising amino acids including alanine, cysteine, glutamine, serine, etc., as well as enzymes. See [0043]. The reference also discloses Fertiessential composition which further comprises minerals such as Epsom salt containing magnesium and vitamins in addition to the amino acids. See [0-81].
Robbins et al. (US 20220272987 A1, published on September 1, 2022) teach an agricultural composition comprising a biostimulant and a nutrient. The reference teaches phosphorous source, potassium source, calcium magnesium, sulfur, cobalt, copper, iron, manganese, zinc, selenium, sodium are useful as nutrients. See [0029].
Robbins further teaches that the biostimulant may be an amino acid, including glutamine, alanine, theonine, valine, serine, proline, isoleucine, leucine, histidine, phenylalanine, glutamic acid, aspartic acid, cysteine, tyrosine and tryptophan.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GINA JUSTICE whose telephone number is (571)272-8605. The examiner can normally be reached M-F 9:00 AM - 5 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, BETHANY BARHAM can be reached at 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GINA C JUSTICE/Primary Examiner, Art Unit 1617
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