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 .
Application Status
Claims 1-3 were previously pending.
A Final Rejection Office Action was mailed 16 July 2026.
Applicants’ Response After Final Action was received 17 August 2026 and has been entered.
In their Response After Final Action, Applicant amended claim 1 and did not cancel or add claims.
Therefore, claims 1-3 remain pending and currently under examination.
Withdrawn Finality
Upon further consideration of the prosecution record, the Examiner has determined that withdrawal of the finality of the previous Office Action of record is appropriate. Accordingly, the finality of the previous Office Action is hereby withdrawn.
Withdrawn Claim Rejections
In view of Applicant’s claim amendments, the previous rejections of record are hereby withdrawn.
New Claim Rejections
Applicant’s 29 May 2026 Terminal Disclaimer covers 18/389,780 only. It is not clear why Applicant submitted the attachment table to the terminal disclaimer listing additional reference applications without adequately disclaiming those application. Therefore, the following claim rejection is necessitated by Applicant’s inadequate filing.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3 are provisionally are rejected on the ground of nonstatutory double patenting as being unpatentable over claims (“B”) as listed in the table below in copending Application Numbers (“A”) as listed in the table below (reference application) and as evidenced by Juarez (WO 2023/001946 A1; published: 26 January 2023).
Although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims pertain to a method of using a keratin hydrolysis peptide (KHP) solution by preparing a solution from mixing feathers and water in a sealed container, hydrolyzing said mixture according to specific time, pressure, and duration parameters, and using a mass spectrometer to confirm peptide content, and administering the solution to soil and/or to leaf surfaces of specified plants (“C” in Table below).
The instant claims differ from the copending claims in that (1) both claim sets have slightly different but still qualitatively similar numerical amounts with regard to mass of feathers, water content percentage, and hydrolysis temperature, pressure, and duration terms; and (2) the instantly claimed method applies the solution to soil containing corn plants/seedlings by infusion whereas the copending claims are drawn to methods of applying the solution to the soil and/or leaves of the plants, specified particularly in the table below. However, the copending claims and the instant application are still not patentably distinct from one another as evidenced by Juarez, who discloses embodiments of a process to obtain a liquid keratin solution applicable to any plant.
Juarez discloses a process for converting keratin into a liquid mixture comprising peptides and/or amino acids (see Abstract); thereby constituting a keratin hydrolysis peptide (KHP) solution. Juarez discloses the usefulness of bird feathers due to their significant keratin content, containing high amounts of amino acids necessary for nourishment of plants (p. 1, lines 19-21). Juarez further discloses a process to obtain these amino acids through hydrolysis of keratin-containing animal material that is effective in converting keratin into a more bio-available compound (p. 2, lines 6-15).
Juarez’s invention is suitable to be used in several technical fields such as, e.g., agriculture, for example as a bio-stimulant (pg. 1, lines 4-5). Juarez discloses that the liquid mixture may be used to improve and/or stimulate one or more of germination, rooting, growth, flowering, curdling and maturation of plants and fruits (pg. 11, lines 6-10). Furthermore, Juarez discloses that advantageously, the liquid mixture including peptides and/or amino acids obtained through the process of the invention, can be applied in its different variants to any type of plant, at any stage of plant development, on any soil and form of cultivation, and is also potentially usable in organic farming (pg. 3, lines 10-14). Finally, Juarez discloses the liquid mixture can be applied through different methods such as: foliar application or irrigation methods such as drench, drip, irrigation systems, furrows, etc. (p. 3, lines 14-18). Thereby evidencing a method of using a KHP solution on any plant in any manner to increase yields).
Copending Application Number (“A”)
Copending Claim Numbers
(“B”)
Plant
(“C”)
18408245
1-5
soybean
18408257
1-4
wheat
18409790
1-3
cotton
18409792
1-4
cotton
18412611
1-4
corn
18412615
1-4
wheat
18418259
1-3
corn
18403246
1-5
cucumber
18428193
1-8
tomato
18531687
1-5
coffee
18533181
1-6
tea
18534628
1-8
grape
18536211
1-8
wheat
18537395
1-5
cotton
18639751
1-9
soybean
18639950
1-3
soybean
18642445
1-4
asparagus bean
18642487
1-8
cotton
18643738
1-6
wheat
18643756
1-7
corn
18645293
1-6
lettuce
18645307
1-6
lettuce
18645354
1-3
soybean
18656153
1-8
tomato
18658824
1-6
corn
18658834
1-8
soybean
18668598
1-6
cotton
18671837
1-4
wheat
18671848
1-6
soybean
18748493
1-10
corn
18758140
1-10
tea
18758198
1-8
cotton
18774885
1-6
melon
18778049
1-6
cabbage
It would have been prima facie obvious to one of ordinary skill in the art at the time the invention was filed to adjust the hydrolysis conditions as part of routine optimization procedure as is customary in the art, with a reasonable expectation of success. One would have been motivated to do so to achieve the desired degree of hydrolysis reaction efficacy in a method of preparing a peptide solution from feathers in aqueous solution based on the copending claims’ suggestions of hydrolysis reactions for preparing keratin hydrolysis peptide solutions for enhancing crop yields and quality. Further, it would have been prima facie obvious to one of ordinary skill in the art at the time the invention was filed to substitute one for the other, the corn crop instantly claimed for and/or in place of the crops of the copending claims as detailed in the Table above, with a reasonable expectation of success. One would have been motivated to apply the prepared solution to soil and/or leaves of alternate food or cash crops to achieve similar end results of enhanced production yield and quality of said food or cash crops.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Claims 1-3 are rejected. No claim is allowed.
Following is near-art which may be applicable upon resolution of issues detailed above:
Young (KR20060053360A) teaches mass spectrometry characterization of peptide products from hydrolyzed feathers;
Szoeke (US8,617,282 B2) teaches another method of preparing fertilizer by feather processing;
Cheng (Bioresource Technology, Volume 99, Issue 9, June 2008, Pages 3337-3341) teaches hydrolysis of biomass waste (such as feathers) to produce amino acids with overlapping ranges of hydrolysis parameters and additionally showing that amino acid yield can be controlled fluctuating reaction atmosphere, pressure, temperature and time of hydrolysis; and
Takashi (JP2006124341) teaches hydrolysis of horse keratin from overlapping ranges of hydrolysis parameters including 3-12 bar pressure; 4-25 minutes process duration; and 160 to 205 degrees Celsius temperature range to produce a peptide of 500 Daltons.
Communication
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Julia A Rossi whose telephone number is (571)272-0138. The examiner can normally be reached M-Th 7:30-5:30 (MST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A. Wax can be reached at (571)272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JULIA A ROSSI/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
Prosecution Insights