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 Acknowledged
Applicants’ election 3/6/2026 traverse the invention of Group I encompassing claims 1-8 is acknowledged. The restriction is made final without traverse.
Allowable Subject Matter
Claim 2 would be considered allowable upon overcoming the outstanding issues outlined below. In particular, claim 2 is reflective of the process which yields a product exhibiting superior results as demonstrated by substrates 1 and 2 from Table 2 whereby seedlings grown in the presence of these substrates exhibited about a 25% increase in height and about a 15% increase in ground diameter relative to similar poplar ferment compositions and conventional seedling substrates (e.g. peat and perlite mixtures) (November 24, 2022 data).
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.
Claims 1 and 6-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Feng et al. (CN 115349422; translation provided) in view of Don (CN 113582774; translation provided).
Feng describes a method of making a seedling culture comprising 1) cutting and crushing tree (e.g. poplar, Populus sp.; see page 3) materials (e.g. leaves, branches) and producing granules therefrom to yield a particle size of 0.25-0.5 cm (2.5-5 mm; see instant claim 2) (see page 2), combining the granulated plant matter with a culture medium comprising perlite (see abstract and page 2) (see instant claim 1) and manure (e.g. chicken manure, see page 3; see instant claim 1), initiating fermentation by inoculation with a fermentation disc which would include microorganisms such as fungi and bacteria (see pages 3 and 12) wherein fermentation occurs for 40-50 days (see page 3). The resulting seedling culture contains not more than 30% water (see page 3) (see instant claim 7).
Although the microorganisms provided by Feng are presented as a ‘disc’ rather than a ‘powder’ as claimed, such is difference is considered insignificant as such a difference is solely in form and immaterial to the outcome of the method, absent evidence otherwise. See MPEP 2144.04(IV)(B). It is also noted that Feng includes perlite prior to initiation of fermentation whereas the instant method adds perlite during the fermentation process. This difference is considered obvious as this is nothing more than a change in the sequence of adding ingredients. Such changes are considered obvious unless such a change results in an unexpected outcome. See MPEP 2144.04(IV)(C).
Feng teaches that their seedling culture can be combined with fertilizer in a 1:2 ratio (100 g:200g; see page 8). Although Feng does not teach applying 1 m3 of the seedling substrate for every 1-3 kg of fertilizer as set forth by instant claim 8, Feng provides both together and would motivate one to identify other ratios that work together to yield excellent plant growth outcomes. If such a manipulation of Feng’s teaching yielded a ratio such as that claimed, then this would have been then product of ordinary skill and common sense rather than one of innovation. See MPEP 2144.05(II)(A) regarding optimization of general conditions via routine experimentation.
Fong fails to teach the including garden soil in the fermentation mixture.
Dong is directed to bio-organic fertilizers made from fermented mixtures manure and planting soil (assumed equivalent to garden soil). It is taught that soil is included in the process so as to promote decomposition and transmission of nutrient substances from the manure and soil (see page 4). Thus, it would have been obvious to supplement Fong’s method to include garden soil so as to improve the nutrient transfer from the manure to the soil to be used for growing the seedlings. Dong’s fermentation process is to occur at a temperature of 55-65oC wherein the fermentation mixture is turned 2-4 times during the fermentation process (see page 3; see instant claim 6). It would have been obvious to provide such temperatures in Fong’s method with a reasonable expectation for success as such temperatures were known as suitable for producing bio-organic fertilizers useful for supporting plant growth. See MPEP 2143(I)(A).
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Feng et al. (CN 115349422; translation provided) in view of Don (CN 113582774; translation provided) as applied to claims 1 and 6-8 above, and further in view of Yuan et al. (CN 114507096; translation provided).
Feng and Dong fail to teach the bacteria powder as being present in an amount of 0.05-0.1% by mass of the mixture.
Yuan is directed to an organic bacterial fertilizer made from a fermented mixture. The fermentation process utilizes microbial powder in an amount of 0.5-2.0% by weight of the fermentation mixture (see page 1). Although slightly above the claimed range, it would have been obvious to utilize similar concentrations of microbes in Feng and Dongs process with a reasonable expectation for success. It is noted that concentrations which are close but not overlapping are generally considered obvious if they are sufficiently close (such as here). See MPEP 2144.05(I). Fermentation may be performed in a strip stack at a temperature of 60oC being turned (transferred?) once every 3 days until the mixture is fully decomposed (see page 3) (see instant claim 4). Alternatively, turning of the fermenting stack may also be performed at 5-6 days (in the winter, spring and summer) and 3-4 days in the autumn (see pages 4-5) (see instant claim 5). It would have been obvious to a) use the strip stack fermentation technique for the obvious method of Feng and Dong and b) manipulate the time by which the stack is turned so as to identify a time which yields a desirable outcome.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
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.
Claims 1, 2, 3 and 5 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 recites, “adding effective microorganisms (EM) bacterial powder”. The side-by-side recitation of “microorganisms bacterial” is unclear because microorganisms encompass more than just bacteria, e.g. fungi, virus, etc whereas bacteria is bacteria. Does the claim intend to encompass microorganisms, bacteria or both for the fermentation process? Clarification is requested.
Claim 2, dependent from claim 1, recites, “…wherein the Populus fallen leaf scraps, the Populus dead branch scraps, the chicken manures, the garden soil and the perlite are mixed in volume percentages of 40%-60%, 10%-30%, 5%-15%, 5%-15%, and 5%-10% in a total of 100%”. Claim 1, however, requires the presence of effective microorganisms (EM) bacterial powder which is not present in claim 2. Claim 2 essentially does away with a required component of claim 1 as the additive volume for the components of claim 2 are set equal to 100%. Clarification is requested.
Claim 2 recites, “…wherein the Populus fallen leaf scraps, the Populus dead branch scraps, the chicken manures, the garden soil and the perlite are mixed in volume percentages of 40%-60%, 10%-30%, 5%-15%, 5%-15%, and 5%-10% in a total of 100%”. The Examiner presumes that the percentages are matching with the species as enumerated by t heir respective order, e.g. Populus fallen leaf scraps are present in a volume percentage of 40-60%, the Populus dead branch scraps are present in a volume percentage of 10-30%, etc. However, the claim does not provide the proper guidance if this is indeed the case. Clarification is requested.
Claim 3 recites, “…wherein a mass of the EM bacterial powder is 0.05-0.1% of a mass of the mixture.” The recitation of “a mass of the EM bacterial powder” and “of a mass of the mixture” is confusing as it sounds optional and thus unclear if it is limiting the claimed invention or not. Amendment to ‘the’ for ‘a’ would overcome this clarity issue.
Claim 5, dependent from claim 4, recites, “…wherein heap-turning and stack-transferring are performed every 5-7 days during the fermentation.” While claim 4 contemplates “large-heap fermentation” and “strip-stack fermentation”, none of the claims from which claim 5 depends contemplate the method steps of “heap-turning” or “stack-transferring”. It is not immediately obvious to the Examiner whether the “transferring” and “turning” steps of claim 5 are built into the earlier recited fermentation processes or if they are additional steps. Clarification is requested.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 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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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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