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 .
Summary
Claims 16-28, 41-42 and 45-49 are pending in this office action. Claims 1-15, 29-40, 43-44, and 50-53 are cancelled. All pending claims are under examination in this application.
Priority
The current application was filed on March 4, 2024 is a 371 of PCT/US2022/042498 filed September 2, 2022. The current application claims domestic priority to provisional patent application 63/240,337 filed September 2, 2021.
Claim Objections
Claims 22, 25-26, and 46-48 are objected to because of the following informalities:
Claim 22 should have no space after the colon describing the dilution (50:1 and 300:1). Also, the text should read, “…diluting the composition between 50:1 and 300:1…”.
Claims 26 and 48 should have not have a space within the acronym “IBA.”
Within claims 25-26 and 47-48 please define all acronyms. Once they are defined, thereafter, the acronym can stand alone.
Claim 46 needs italicizing where appropriate.
Appropriate correction is required.
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.
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 non-obviousness.
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 16-28, 41-42 and 45-49 are rejected under 35 U.S.C. 103 as being unpatentable over Mendez (US2016/0037772A1) in view of Stoller et al. (WO2016/115300A1), Kim et al. (US2019/0040347A1), and Alexandrov et al. (US2012/0159672A1).
[The Examiner is going to introduce each new reference and then combine them where appropriate to reject the instant claims.]
1. Mendez
Mendez is the closest prior art to the present invention as it teaches increasing abiotic stress tolerance in plants (see title). Furthermore, Mendez discloses methods for treating a plant comprise contacting a plant or a part of a plant with one or more of 9-oxononanoic acid, arachidonic acid, or a salt or ester thereof; wherein the amount is effective to increase tolerance to abiotic stress in the plant or to reduce a consequence of abiotic stress in the plant. Additional ingredients can be included such as dicarboxylic acids, pipecolic acid, or salicylic acid, or salts/esters thereof; sunblocks such as kaolin or calcium carbonate; carriers such as inert powders or liquids; and co-treatment materials such as fertilizers, plant nutrients, biostimulants, micronutrients, amino acids, plant hormones, pesticides, fungicides, insecticides, nematicide, stearic acid, vegetable oil, or phospholipid (see abstract).
2. Stoller et al.
Stoller et al. teach non-aqueous solution of plant growth regulator(s) and polar and/or semi-polar organic solvent(s) (see title). Additionally, Stoller et al. disclose that the present invention generally relates to non-aqueous solutions of plant growth regulator(s) and polar and/or semi-polar organic solvent(s), methods for making said non-aqueous solution, and methods for improving the growth and crop productivity of plants using said non-aqueous solution. The present invention is directed to a non-aqueous solution of 1) at least one plant growth regulator and 2) at least one polar organic solvent and/or at least one semi-polar organic solvent. The present invention further includes methods for making said non-aqueous solution, and methods for improving the growth and crop productivity of plants using said non-aqueous solution. (see abstract).
3. Kim et al.
Kim et al. teach culture medium sterilized for microalgae high density culture, and the air compression, air cooling, carbon dioxide automatically supplied, sealed vertical photobioreactor, harvesting, drying apparatus and characterized in that to provide a carbon dioxide biomass conversion fixed, air and water purification method using the same (see title). In addition, Kim et al. disclose a microalgae culture broth producing system includes a device for culture broth sterilization using a micro bubble generator, an air compression and pressure equalization device for the injection of carbon dioxide and oxygen in the atmosphere into the culture broth. The system also includes an air chilling device to maintain suitable culture broth temperature when water temperature is too high, an automatic carbon dioxide supply device to promote photosynthesis, and a sealed vertical photobioreactor to block out pollutants and increase dissolved carbon dioxide and oxygen concentration. The system further includes a high-efficiency harvesting device using hollow fiber membranes, and a hot air drying device using the waste heat generated by air compression (see abstract).
4. Alexandrov et al.
Alexandrov et al. teach sequence-determined DNA fragments and corresponding polypeptides encoded thereby (see title). Furthermore, Alexandrov et al. disclose that the present invention provides DNA molecules that constitute fragments of the genome of a plant, and polypeptides encoded thereby. The DNA molecules are useful for specifying a gene product in cells, either as a promoter or as a protein coding sequence or as an UTR or as a 3' termination sequence, and are also useful in controlling the behavior of a gene in the chromosome, in controlling the expression of a gene or as tools for genetic mapping, recognizing or isolating identical or related DNA fragments, or identification of a particular individual organism, or for clustering of a group of organisms with a common trait. One of ordinary skill in the art, having this data, can obtain cloned DNA fragments, synthetic DNA fragments or polypeptides constituting desired sequences by recombinant methodology known in the art or described herein (see abstract).
Combination of Mendez and Stoller et al.
Regarding instant claim 16, Mendez and Stoller et al. teach a method of enhancing cation-uptake or iron-uptake in plants growing in low-cation soil, low-iron soil, or Iron Deficient Chlorosis (IDC)-prone soil. The necessary citations of Mendez and Stoller et al. that pertain to instant claim 16 are presented in Table I.
Table I
Instant Claim 16
Mendez and Stoller et al. Citations
A method of enhancing cation- uptake or iron-uptake in plants growing in low-cation soil, low-iron soil, or Iron Deficient Chlorosis (IDC)-prone soil,
Mendez discloses a method of enhancing cation-uptake or iron-uptake in plants growing in low cation soil, low-iron soil, or Iron Deficient Chlorosis (IDC)-prone soil (see paragraph [0005] within Mendez, “Embodiments of the present invention provide compositions and methods to increase a biotic stress tolerance and/or reduce the consequences of abiotic stress”; see also paragraph [0003] within Mendez “Abiotic stress includes excessive or insufficient light intensity, cold temperatures and freezing, drought, salinity, presence of toxic metals, nutrient-poor soils”, and paragraph [0059] within Mendez, “…fertilizers can include ammonium, ammonium phosphate, ammonium nitrate…”). Thus, Mendez teaches the enhancement of beneficial cations for plants.
comprising applying an effective amount of a composition comprising one or more gibberellins, one or more auxins, salicylic acid, and/or one or more jasmonates to one or more seeds, the soil, growing media, and/or a cultivated area.
Mendez discloses comprising applying an effective amount of a composition (see paragraph [0038] within Mendez, “…methods to treat plants or parts of plants with an effective amount of a composition…”,) comprising one or more gibberellins, one or more auxins, and salicylic acid (see claim 6 within Mendez; …wherein the third agent comprises a plant hormone comprising an auxin, gibberellin or salicylic acid.) to one or more seeds, the soil, growing media, and/or a cultivated area (see paragraph [0009] within Mendez, “method of contacting the plant is not particularly limited, and includes spraying, dusting, sprinkling, scattering, fogging, dipping, injecting in the soil, soil incorporation, pouring, coating, seed treatment, soil treatment, and any combination thereof.”).
Mendez fails to disclose the use of one or more jasmonates. However, Stoller et al. uses jasmonates.
Stoller et al. disclose wherein said plant growth regulator is at least one selected from the group consisting of ethylene, auxins, cytokinins, gibberellins, abscisic acid, brassinosteroids, jasmonates, salicylic acids, polyamines, peptides, nitric oxide, strigolactones precursors and derivatives and mixtures thereof (see claim 10 within Stoller et al.).
Therefore, a skilled artisan (POSITA) would consult the disclosures of Mendez and Stoller et al. to teach all the elements of instant claim 1.
The remainder of the instant claims which are either directly or indirectly dependent on claim 1 are taught in full by the combination of Mendez and Stoller et al.
Regarding instant claim 17, Mendez and Stoller et al. teach wherein a herbicide or pesticide is applied to the one or more seeds, the soil, growing media, and/or a cultivated area concurrently, on the same day, or within 10 days before the composition is applied (see paragraph [0079] within Mendez, “…plants in the trials received a conventional application of pesticides…”,) concurrently, on the same day, or within 10 days before the composition is applied (see paragraph [0069] within Mendez, “…application of the compositions of the present invention to the plant or portion thereof, can be 1 day, 3 days, 4 days, 7 days, 10 days…”). In addition, Stoller et al. disclose wherein said plant growth regulator is at least one selected from the group consisting of ethylene, auxins, cytokinins, gibberellins, abscisic acid, brassinosteroids, jasmonates, salicylic acids, polyamines, peptides, nitric oxide, strigolactones precursors and derivatives and mixtures thereof (see claim 10 within Stoller et al.). Therefore, indicating the simultaneous administration stated within instant claim 41.
Regarding instant claims 18 and 42, Mendez and Stoller et al. teach wherein the one or more gibberellins are at a concentration of 0.01 to 1 ng/ml; the one or more auxins are at a concentration of 0.001 to 1 ng/ml; the salicylic acid is at a concentration of 0.1 to 1 ng/ml; and/or the one or more jasmonates are at a concentration of 0.001 to 1 ng/ml; and further comprising diluting the composition to 25:1 and 150:1 prior to applying the effective amount. Mendez does not further disclose wherein the one or more gibberellins are at a concentration of 0.01 to 1 ng/ml; the one or more auxins are at a concentration of 0.001 to 1 ng/ml; the salicylic acid is at a concentration of 0.1 to 1 ng/ml; and/or the one or more jasmonates are at a concentration of 0.001 to 1 ng/ml, and further comprising diluting the composition to 25: 1 and 150:1 prior to applying the effective amount. However, Mendez discloses a range of the amount of agents to be applied (see paragraph [0067] within Mendez, “…the composition can comprise from 0.1 to 99.9 percent by weight of any one of the first, second, or third agents.”).
It would have been obvious to a person having ordinary skill in the art to infer that this can also be accomplished wherein the one or more gibberellins are at a concentration of 0.01 to 1 ng/ml; the one or more auxins are at a concentration of 0.001 to 1 ng/ml; the salicylic acid is at a concentration of 0.1 to 1 ng/ml; and/or the one or more jasmonates are at a concentration of 0.001 to 1 ng/ml, and further comprising diluting the composition to 25:1 and 150:1 prior to applying the effective amount; through routine experimentation.
Regarding instant claim 21, Mendez and Stoller et al. teach wherein the effective amount is applied to the soil, growing media, and/or the cultivated area, and wherein the effective amount is 1 to 5 liters per acre. Mendez discloses an effective amount of the first agent is an application of between about 0.00001 and about 1000 g/ha (see paragraph [0066] within Mendez). In this case, 1 to 5 liters per acre assumes a liquid formulation. The Applicant has not specified what is included within the necessary volume/formulation. The Examiner believes that it would be within the scope of the Mendez disclosure of about 0.00001 and about 1000 g/ha to meet the effective amount of 1 to 5 liters per acre upon standard dilution by a skilled artisan (POSITA; person having ordinary skill in the art) within the agrochemical arts.
Regarding instant claim 22, Mendez and Stoller et al. teach further comprising diluting the composition 50:1 and 300:1 and performing one or more additional applications of the effective amount of the composition. Please see the discussion and citation within instant claim 21. Furthermore, Stoller et al. disclose a method for improving the growth and crop productivity of a plant comprising: mixing said non-aqueous solution of any one of claims 1-38 with water to form a water-diluted
composition; and applying said water-diluted composition to the roots, foliage, flowers or fruits of the plant (see claim 39 within Stoller et al.). Water-dilution or dilution with a carrier of choice by a skilled artisan (POSITA) within the agrochemical arts is common. This range between 50:1 and 300:1 is not uncommon where it would be viewed as an outlier as it pertains to dilution. Therefore, this dilution range would be met by a skilled artisan (POSITA).
Regarding instant claim 23, Mendez and Stoller et al. teach further comprising additionally applying the composition every 1 to 60 days after the applying in (b) (see paragraph [0069] within Mendez, “…the number of days between applications, that is, the frequency of contact with the compositions of this invention with a plant or part thereof is from 1-100 days…”).
Regarding instant claim 24, Mendez and Stoller et al. teach the effective amount is applied to the soil, growing media, and/or the cultivated area, and wherein the applying comprises injection, in-furrow, drip irrigation, center-pivot, surface broadcast, broadcast incorporated, band application, fertigation, chemigation, foliar application, sidedress, topdress, seed placement, seed treatment, or combinations thereof. Mendez discloses contacting the plant is not particularly limited, and includes spraying, dusting, sprinkling, scattering, fogging, dipping, injecting in the soil, soil incorporation, pouring, coating, seed treatment, soil treatment, and any combination thereof (see paragraph [0009] within Mendez).
Regarding instant claims 25 and 47, Mendez and Stoller et al. teach wherein the one or more gibberellins comprise GAI, GA3, GA4, GA5, GA6, GA7 or combinations thereof. Stoller et al. disclose the gibberellin is preferably selected from one or more of the following GAI, GA3, GA4, GA5, GA6, GA7…(see paragraph [0023] within Stoller et al.).
Regarding instant claims 26 and 48, Mendez and Stoller et al. teach wherein the one or more auxins comprise Me-IAA, IAA-ALA, IAA-ASP, IBA, or combinations thereof. Stoller et al. disclose wherein said auxin is indole-3-acetic acid (IAA), indole-3-butyric acid (IBA), or mixtures thereof (see claim 13 within Stoller et al.). A skilled artisan (POSITA) would expand the auxins to include known IAA-amino acid (alanine and/or aspartic acid) or methylated IAA based on alternative known auxins within the scientific literature.
Regarding instant claim 28, Mendez and Stoller et al. teach wherein the composition further comprises cultured and enhanced sterilized water, optionally at 80% to 99.5%w/w. Mendez discloses the use of water as a carrier (see paragraphs [0025], [0081], and Table 1; all within Mendez). A skilled artisan (POSITA) would use “enhanced sterilized water” to ensure no contaminates are introduced from the carrier.
Regarding instant claim 41, Mendez and Stoller et al. teach a mixture comprising an herbicide or pesticide and a composition comprising: one or more gibberellins, one or more auxins, salicylic acid, and/or one or more jasmonates. Mendez discloses a method of increasing cation uptake (see paragraph [0005] within Mendez, “Embodiments of the present invention provide compositions and methods to increase abiotic stress tolerance and/or reduce the consequences of abiotic stress…”; also see paragraph [0003] within Mendez, “Abiotic stress includes excessive or insufficient light intensity, cold temperatures and freezing, drought, salinity, presence of toxic metals, nutrientpoor soils, and see paragraph [0059] within Mendez, “…fertilizers can include ammonium, ammonium phosphate, ammonium nitrate…”) in a plant growing in soil (see paragraph [0009] within Mendez, “…method of contacting the plant is not particularly limited, and includes spraying, dusting, sprinkling, scattering, fogging, dipping, injecting in the soil, soil incorporation, pouring, coating, seed treatment, soil treatment, and any combination thereof.”) treated with an herbicide or pesticide (see paragraph [0079] within Mendez, “…plants in the trials received a conventional application of pesticides…”), comprising: (a) applying an effective amount of an herbicide or pesticide to the plant and/or soil; and (b) within 10 days after the applying in (a) (see paragraph [0069] within Mendez, “…application of the compositions of the present invention to the plant or portion thereof, can be 1 day…”), applying to the plant and/or soil an effective amount of a composition comprising one or more gibberellins, one or more auxins, and salicylic acid (see claim 6 within Mendez; wherein the third agent comprises a plant hormone comprising an auxin, gibberellin or salicylic acid). Furthermore, the third agent comprises one or more of a fertilizer, biostimulant, plant nutrient, plant micronutrient, amino acid, plant hormones and hormone-like compound, pesticide, fungicide, insecticide, nematicide, stearic acid, vegetable oil, or phospholipid (see claim 5 within Mendez). Mendez fails to disclose the use of one or more jasmonates. However, Stoller et al. does.
Stoller et al. disclose wherein said plant growth regulator is at least one selected from the group consisting of ethylene, auxins, cytokinins, gibberellins, abscisic acid, brassinosteroids, jasmonates, salicylic acids, polyamines, peptides, nitric oxide, strigolactones precursors and derivatives and mixtures thereof (see claim 10 within Stoller et al.). Therefore, indicating the simultaneous administration stated within instant claim 41.
Combination of Mendez and Kim et al.
Regarding instant claims 19 and 45, Mendez and Kim et al. teach wherein the composition is derived from algae, macroalgae, and/or microalgae. Mendez does not disclose wherein the composition is derived from algae, macroalgae, and/or mlcroalgae. However, Kim et al. disclose a microalgal culture broth system (see abstract within Kim et al.) to produce the harvested culture water (see paragraph [0080] within Kim et al., filtered cultured water without microalgae biomass and the other tank is for cultured water with microalgae biomass), that produces the nutrients. Both Mendez and Kim et al. disclose the use of plant growth hormones for use in plant growth (see paragraph [0065] within Kim et al., “…organic microalgae byproducts are being used to promote plant growth and for pest prevention.”).
It would have been obvious to a person having ordinary skill in the art to use the harvested cultured water disclosed by Kim et al. in the composition disclosed by Mendez; through routine experimentation, as it provides for an efficient means of getting such nutrients.
Regarding instant claims 20 and 46, Mendez and Kim et al. teach wherein the microalgae comprise Chlorella, Spirulina, Nannochloropsis and/or Scenedesmus or any combination thereof. Kim et al. further disclose wherein the microalgae comprise Chlorella, Spirulina, Nannochloropsis and/or Scenedesmus or any combination thereof (see paragraph [0096] within Kim et al., cold water microalgae Nannochlopsis sp). Additionally, a skilled artisan (POSITA) would expand the microalgaes beyond Nannochlopsis sp to include Chlorella, Spirulina, and/or Scenedesmus or any combination thereof. This is based on the common microalgaes within the claim limitation in nature.
Combination of Mendez and Alexandrov et al.
Regarding instant claims 27 and 49, Mendez and Alexandrov et al. teach wherein the one or more jasmonates comprise jasmonic acid. Alexandrov et al. disclose jasmonic acid and its derivatives, collectively referred to as jasmonates, are naturally occurring derivatives of plant lipids. These substances are synthesized from linolenic
acid in a lipoxygenase-dependent biosynthetic pathway. Jasmonates are signalling molecules which are growth regulators as well as regulators of defense and stress responses. As such, jasmonates represent a separate class of plant hormones.
Jasmonate responsive genes can be used to modulate plant growth and development (see paragraph [0436] within Alexandrov et al.). Both Stoller et al. (see above) and Alexandrov et al. disclose the use of jasmonates (jasmonic acid). Therefore, a skilled artisan (POSITA) would employ jasmonic acid based on the Alexandrov et al. disclosure.
Analogous Art
The Mendez, Stoller et al., Kim et al., and Alexandrov et al. references are directed to the same field of endeavor as the instant claims, that is, a method of enhancing cation-uptake or iron-uptake in plants growing in low-cation soil, low-iron soil, or Iron Deficient Chlorosis (IDC)-prone soil disclosed within instant claim 1.
Obviousness
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the method for enhancing cation uptake in plants disclosed by Mendez, using the teachings of Stoller et al. and Kim et al., and further in light of the claim-specific feature described in Alexandrov et al., in order to arrive at the subject matter of the instant claims.
The Mendez, Stoller et al., Kim et al., and Alexandrov et al. references all have considerable overlap for the treatment of plants within the agrochemical arts. In this instance, both Mendez and Stoller et al. supply the method for enhancing cation uptake in plants, Kim et al. teaches the use of microalgae, while Alexandrov supplies a claim-specific example employing jasmonic acid. All references are directed to the treatment of plants within the agrochemical arts and therefore constitute analogous art under MPEP §2141.01(a). A POSITA would have reasonably consulted the four references when seeking to improve or adapt a method for enhancing cation uptake in plants.
Starting with Mendez, the skilled person only had to try the necessary claim limitations disclosed by Stoller et al., Kim et al., and Alexandrov et al. The combination of Mendez, Stoller et al., Kim et al., and Alexandrov et al. would allow one to arrive at the present application without employing inventive skill. This combination of the method for enhancing cation uptake in plants taught by Mendez along with the use of the necessary claim limitations taught by Stoller et al., Kim et al., and Alexandrov et al. would allow a research and development scientist (POSITA) to develop the invention taught in the instant application. It would have only required routine experimentation to modify the method for enhancing cation uptake in plants disclosed by Mendez with the use of the necessary claim limitations taught by Stoller et al., Kim et al., and Alexandrov et al. Incorporating the disclosure of Mendez into the specific plant treatments presented by Stoller et al., Kim et al., and Alexandrov et al. represents a predictable use of prior art elements according to their established functions, consistent with MPEP §2143 and KSR.
Furthermore, the additional claim limitations taught by Stoller et al., Kim et al., and Alexandrov et al. would have been viewed by a POSITA as routine design optimizations or known modifications to treat plants through the method for enhancing cation uptake. Implementing these features in Mendez.’s method for enhancing cation uptake in plants would not require more than ordinary skill or routine experimentation.
Accordingly, the combination of Mendez, supplemented by Stoller et al., Kim et al., and Alexandrov et al. provides all the elements of the claimed invention. The resulting method for enhancing cation uptake in plants constitutes no more than the predictable outcome of combining familiar prior art components, and therefore the claimed subject matter would have been obvious to a POSITA prior to the effective filing date of the invention.
Conclusion
No claims are allowed.
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/JOHN W LIPPERT III/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615