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 in the reply filed on 4/6/2026 is acknowledged. The traversal is on the grounds that such search would not present an undue search burden. This is not found persuasive because applicant's argument is merely speculative and not supported by probative evidence. There is no certainty that uncovering limitations in the product would necessarily lead to methods of making the product as claimed. Applicant further remarks that the Office’s demand for election is burdensome on the Applicant and the public. The burden on the applicant or public is not a criterion for determining when restriction is proper. See MPEP 803. The requirement is still deemed proper and is therefore made FINAL.
Claims 11-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 4/6/2026.
Specification
The use of the terms such as Mettler Toledo and Eurofins, which are trade names or marks used in commerce, has been noted in this application. The terms should be accompanied by the generic terminology; furthermore the terms should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
The specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claims 1, 4, and 16 are objected to because of the following informalities: These claims recite “the body” and/or “the rewettable body”. Examiner suggests amending to “the substrate body” and “the rewettable substrate body” for consistency of claim language.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-5 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Forster (EP 3763202 A1, published 1/13/2021, cited on the 7/11/2024 IDS) in view of Timmis et al. (US 5119588, patented 6/8/1992, cited on the 5/10/2024 IDS), as evidenced by Rutala et al. (2012).
Regarding claims 1 and 3-4, Forster teaches a growing substrate plug [claim 10] for plants comprising psyllium husk, peat, and coconut fibers [claims 1 and 4]. Forster further teaches that the growing substrate may contain binders [claim 5], as well the inclusion of psyllium in the substrate serves the function of improving binding properties (reads on bound organic fibers) [0013]. The growing substrate of Forster also exhibits an exceptionally good water retention capacity (reads on hydrophilic) and rewetting ability after drying [0013]. Forster does not explicitly teach a propagation plug wherein the substrate body is irradiated, sterile, and has a moisture content of less than about 20% by weight. However, the growing substrate of Forster may be dried out and rewet, indicating that the moisture levels will fluctuate (reads on instant claim 4). Furthermore, differences in concentration (i.e. the concentration of water in the substrate) generally will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. "[W]here 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, 456, 105 USPQ 233, 235 (CCPA 1955).
Timmis teaches a method of growing plant embryos using substrate plugs. Timmis teaches that the plugs should be sterilized to eliminate biological/microbial contamination that can harm plant embryos [col. 9 lines 60-65]. Sterilization of the plugs can be achieved through any suitable sterilization method, including radiation [col. 8 lines 15-17]. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the invention of Forster with the teachings of Timmis to irradiate the substrate plugs to eliminate microbes that can harm plants. Furthermore, sterilization, by definition, destroys all microorganisms (including bacterial spores) present [Rutala, Table 1], thus the sterile plug made obvious by Forster in view of Timmis would have a bacterial count of 0, which overlaps with the instantly claimed range of < 10 cfu/g.
Regarding the limitations referring to testing methods for moisture and bacterial count, the U.S. Patent Office is not equipped with analytical instruments to test prior art compositions for the infinite number of ways that a subsequent applicant may present previously unmeasured characteristics. When as here, the prior art appears to contain the exact same ingredients and applicant's own disclosure supports the suitability of the prior art composition as the inventive composition component, the burden is properly shifted to applicant to show otherwise.
Regarding claim 2, the sterile plug of claim 1 has been made obvious above, and as discussed, U.S. Patent Office is not equipped with analytical instruments to test prior art compositions for the infinite number of ways that a subsequent applicant may present previously unmeasured characteristics. Where the substrate has already been sterilized, it should remain sterile until use.
Regarding claim 5, Forster teaches that the substrate plug may have a cylindrical shape [0039].
Regarding claim 9, Forster teaches that the growing substrate may be formed as pressed pots which are mechanically stable [0013] and do not require a growing container such as a pot [0007] (reads on self-supporting).
Claims 6-8 and 16-21 are rejected under 35 U.S.C. 103 as being unpatentable over Forster (EP 3763202 A1, published 1/13/2021, cited on the 7/11/2024 IDS) and Timmis et al. (US 5119588, patented 6/8/1992, cited on the 5/10/2024 IDS), applied to claim 1 above, and further in view of McKenzie (US 3973355, patented 8/10/1976, cited on the 7/11/2024 IDS).
Regarding claims 6 and 7, Forster and Timmis do not explicitly address the density and porosity of the growing substrate. McKenzie teaches a hydrophilic, rewettable plant growth matrix [Abstract] comprising a gelled mixture of growing media such as peat and wood fiber [col. 4, lines 30-32]. The growth matrix of McKenzie may be in the form of an insert in or coated on a suitable carrier, wherein the carrier should be open celled (i.e. porous) and preferably 40% or greater open cells as to not impede root growth [col. 11, lines 16-23]. Control of cell size and percentage of open cells are important as these factors affect the capillarity and moisture control characteristics of the carrier [col 12, lines 47-51]. The porosity taught in McKenzie overlaps with the instant claimed range of porosity of about 90-95%. Porosity and density are directly (inversely) related properties. McKenzie further teaches that the density of a plant growth substrate may be controlled by the composition of the mixture, and should be adjusted as it affects root penetration and water adsorption capacity [col. 15, lines 6-10]. Thus, it would be obvious to one of ordinary skill in the art to modify the density and porosity of the growing substrate in the course of routine optimization as taught by McKenzie. Regarding the limitation wherein porosity is measured by Eurofins test method FYS1: Cf PTOG nr 31, the U.S. Patent Office is not equipped with analytical instruments to test prior art compositions for the infinite number of ways that a subsequent applicant may present previously unmeasured characteristics as discussed.
Regarding claim 8, as previously discussed, Forster teaches that the substrate body may be a cylinder (reads on the substrate body having a top and bottom surface, and a body surface extending between and connecting the top and bottom surface). Forster further teaches that an indentation (reads on hole) may be created in the substrate body [0039]. McKenzie also teaches a cylindrical substrate body with a depression in the upper surface for placement of a seed [col. 10, lines 65-68]. Neither reference explicitly teaches a substrate having a hole with a diameter of about 1-5 mm and a depth of about 3-15 mm. McKenzie teaches that the size of the depression may vary with the seed type, e.g. some seeds germinate better in darkness and thus a deeper depression will be more desirable [col. 10 line 68 – col. 11 line 3]. Thus, a skilled artisan, in the course of routine optimization, would utilize the teachings of McKenzie to vary the size and depth of the hole in the substrate body to fit the needs of the seed/plant in the course of routine optimization.
Regarding claim 16, Timmis teaches a tray comprising multiple cells wherein each cell supports a single plug [col. 4, lines 13-15]. Timmis further teaches that housing substrate plugs in a tray comprising individual cells allows for biological isolation such that if one cell becomes contaminated with microorganisms, it does not contaminate the other cells [col. 3 lines 57-64]. Thus, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to utilize a tray comprising individual cells to house the substrate plugs previously made obvious, in order to isolate the substrate plugs in order to prevent the spread of contamination. Additionally, Figure 5 of Timmis illustrates such a tray with a plurality of cells wherein the cells are shown to be the same size. Since the plugs are to be housed in the cells, it would be obvious to formulate the substrate plugs to have the same dimensions (and consequently the same weight, reading on claim 20) wherein they are able to fit in the identical cells. Timmis does not explicitly address how the tray is made (i.e. if it is molded), however, determination of patentability is based on the product itself, not its method of production. If the product in the claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." MPEP 2113 I.
Claim 16 recites the limitation wherein the molded container comprising the propagation plugs is “an initial tissue culture medium”. This is a recitation of intended use that merely states the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations This recitation does not add a structural distinction to the claim, thus this limitation is of no significance to claim construction. MPEP 2111.02. Claim 16 also recites additional limitations that have been previously made obvious. The analysis for these limitations will not be repeated herein. See above rejections for claims 1, 4 and 6.
Regarding claim 17-19, these claims recite limitations that have been previously addressed and made obvious. The analysis for these limitations will not be repeated herein. See above rejection for claims 1 and 4.
Regarding claim 20, a container including a plurality of propagation plugs having substantially the same dimensions has been made obvious in the rejection of claim 16 above. Claim 20 recites the limitation wherein each of the propagation plugs has substantially the same weight. Since the plugs have the same dimensions and comprise the same components, it would be inherent that the individual plugs are the same weight.
Regarding claim 21, Forster teaches planting Chinese cabbage (a flowering plant with ground roots) in the growth medium press pots [0059].
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Forster (EP 3763202 A1, published 1/13/2021, cited on the 7/11/2024 IDS) in view of Timmis et al. (US 5119588, patented 6/8/1992, cited on the 5/10/2024 IDS), applied to claim 1 above, and further in view of Ogawa et al. (US 2012/0240462 A1, published 9/27/2012).
Regarding claim 10, Ogawa teaches a method for producing a clone seedling wherein the shoot of the plant is cultivated using a medium containing glutathione (reads on antioxidant) [Abstract, 0017]. Ogawa further teaches that the presence of glutathione improves the rooting rate and productivity of the clone seedling [Abstract]. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to add glutathione to the growing medium previously made obvious in order to improve plant productivity.
Conclusion
No claims are allowed.
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/AMANDA LYNN CHI/Examiner, Art Unit 1613
/JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613
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