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
Restriction:
Applicants’ election without traverse of Group I (claims 1-18) in the reply filed on 9/22/26 is acknowledged.
Claims 19-25 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II invention , there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 9/22/26. Applicant reserved their right of rejoinder.
Election of Species
In the 9/22/26 response, applicant elected, without traverse, the following Species 1-5 and claims asserted to be readable thereon:
Species 1, a "biochelant": aldonic acid (claims 1-25 as readable thereon);
Species 2, a "counter cation," : sodium (claims 1-25 as readable thereon);
Species 3, a "micronutrient salt” : iron (claims 1-10 and 11-25 as readable thereon)
Species 4, a "ring-opener" : borate and derivatives (claims 1-11, 15-21, and 25 as readable thereon)
Species 5, a "facilitating agent" : sodium citrate (claims 1-25 as readable thereon).
Modified Election of Species
--Upon search and reconsideration of the above election of species, the following is noted:
Species 1: the election of aldonic acid (generic term) has been extended to include species within the scope of this terminology e.g. gluconic.
Species 3: the election of iron, has been expanded to include prior art directed to additional species for purposes of compact prosecution.
Species 2 and 5: as art was found applicable to additional species besides the elected species, the additional species were rejected for purposes of compact prosecution.
Species 4: “ring opener” : borate and derivatives. Upon the finding of prior art directed to “ring opener” species in claims 12 and 13, for the sake of compact prosecution, these claims were considered and rejected. The election of species is still maintained regarding other non-rejected species.
However, the elected “ring opener” species does not read on claim 14, thus this claim is withdrawn from consideration.
Thus, pursuant to the elected species above: 1-13 and 15-18 are under consideration to the extent of the elected species requirement.
Claim 14 is withdrawn from consideration .
Status of the Claims
Claims 1-25 are pending.
Claims 14 and 19-25 are withdrawn from consideration as being drawn to non-elected invention
Claims 1-13 and 15-18 are under consideration to the extent of the elected species as discussed above.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged.
Applicant has claimed the following chain of priority:
This application, 18/690,658: filed is a 35 U.S.C. § 371 national stage application of
PCT/US2022/044159 filed September 20, 2022, which claims priority to
U.S. Provisional Application Serial No. 63/261,392 filed September 20, 2021 and
U.S. Provisional Application Serial No. 63/274,852 filed November 2, 2021.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 3/8/24; 9/13/24 and 6/25/25 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Oath/Declaration
The eight Inventor Oaths filed on 3/8/24 are acknowledged. It is noted, however, that
the penultimate oath of Inventor Frederyk Ngantung appears to be unsigned, or the signature is not legible. Applicant may consider filing a replacement oath for this inventor.
Specification Objection(s)
The disclosure is objected to because of the following informalities:
The abstract of the disclosure is objected to because the abstract of the disclosure does not commence on a separate sheet in accordance with 37 CFR 1.52(b)(4) and 1.72(b). A new abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text.
The use of the trademarks “Biochelate TM” “Nutrivalent TM” , has been noted in this application on page 6. The term should be accompanied by the generic terminology; furthermore the term 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.
Appropriate correction is required.
Claim Objections
Claims 4, 5 and 9 are objected to because of the following informalities:
A In claim 4, drawn to counterion markush, the phrase “ a Group I alkali metal, a Group II alkaline metal … a Group 12 metal …” is unclear. Reciting elemental groups, particularly Group 8, 11 and 12 metals, rather than identifying ionic species confuses the ion state intended. Should consider using specific cations or oxidation states, such as ferrous, ferric ion, zinc ion, copper (I) ion, copper (ii) ion as supported in the specification.
B In claim 5, reciting “aluminum, calcium, magnesium and sodium without indication of ionic form in the same Markush listing with “ferric iron” “ferrous ion”, which indicates ionic status, results in a lack of clarity and consistency. Suggest using consistent nomenclature e.g. aluminum (III), calcium (II), sodium (I), and potassium (I) cations.
C Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term “ micronutrient” in claim 9 is used by the claim to mean “nutrients that include micronutrients” sin while the accepted meaning is “a defined list that including.” The term is indefinite because the specification does not clearly redefine the term.
Appropriate correction is required.
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 2, 5, 10, 12 and 17 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.
The terms “predominantly” and “minor component species” in claim 2 are relative terms which renders the claim indefinite since these terms are not defined by the claim, nor does the specification provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
In claim 5, the recitation of Markush members, “silicates” and “borates “, which are anionic, as being “counter cations” leads to an ambiguous scope.
In claim 10, listing “oxides of iron” which are NOT normally salts as a “micronutrient salt” renders the scope of salts of the “oxides of iron” unclear.
In claim 12, the term “oxoacid salt” as a species of “ring opener” is indefinite insofar that the “oxoacid salt” does not identify the corresponding cation, oxoacid, or chemical class intended, which is made even more indefinite by the functional scope of the term “ring opener”.
Claim 17 recites the limitation "the optional agent" that lacks antecedent basis in claim 1. May wish to consider amending to be dependent on claim 16.
Claim Rejections - 35 USC § 112d
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.
Claim 16 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.
To the extent that claim 16 further comprises an “optional” facilitating agent, this claim fails to limit a previous claim to which it is dependent. 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 Interpretation
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art.
Claim Interpretation of claim 1:
Claim 1. A micronutrient formulation comprising
a biochelant, a micronutrient salt, a ring opener and a solvent.
Specification (3/18/24: clean version) Definitions and guidance:
a. “biochelant” [0027] –[0036]: page 6:
b. “micronutrient salt”: [0037]- metal cation and anion (e.g. sulfate, sulfite, oxide, chloride,nitrate …)
[0038] includes “humic acids”; “fulvic acids” (and salts thereof)
c. “ring opener”[0040]-: functions to stabilize the acid form of the biochelant … a compound that functions to shift the equilibrium of the acid-lactone forms of the chelant to favor retention of the linear acid (e.g. glucaric acid). Preferred embodiments are described in [0041]-[0042].
d. “optional facilitating agent” : [0043]: “… refers to a material that increases the solubility of the metal (e.g. iron) in solution”.
e. “solvent”: [0044]: “… include without limitation water, a citrate solution, or combinations thereof.”
f. “biodegradable”: [0045]: “… referes to a material which can be chemically decomposed … by natural biological processes (e.g. soil bacteria, weather, plants, animals).
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-13 and 15-18 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by An et al. WO 2022/026752 (effectively filed July 29, 2020).
An et al. teach a micronutrient formulation that includes (i) a biochelant; (ii) a micronutrient salt; (iii) a ring opener; and (iv) a solvent. The micronutrient formulation has a sodium ion concentration of from about 1,000 ppm to about 99,000 ppm. See Abstract.
An et al. claims corresponding to the instant claims as follows:
Instant claim 1: clearly anticipated by WO claim 1.
Instant claim 2: anticipated by WO claims 2-5 (e.g. aldonic/gluconic/ and Na/K acid salts.
Instant claims 3-5: biochelant counter cations: see reference Table 1 for metal “counter” cations that are w/n the correspond periodic table e.g. alkali/alkaline earth. See also reference claims e.g. claim 7.
Instant claims 6-7: “buffered” glucose acids (and derivates are taught at WO [0018] e.g. “buffered gluconic acid”. Mixtures of gluconic/glucaric acids further comprise “n-keto-acid, or C2-C6 diacids. See WO[0019]; claim 5.
Instant claim 8: (broad) biochelant amount ( 0.1 wt/%-99 wt/%) taught at e.g. WO claim 6 (0.1-40 wt/%): [0018]-[0020] “less than about 50wt%.
Instant claim 9: micronutrient salt: “boron, iron, cobalt etc. : WO [0020]: Table 1: claim 7
Instant claim 10: metal oxides taught at WO [0020]; [0044].
Instant claim 11: humic/fulvic acids and salt taught e.g. WO [0021]: claim 10
Instant claim 12: oxo-acid/amide ring opener: e.g. WO [0023]
Instant claims 13 and 15: silicate/boron/borate/borax and deriv. “ring-openers” taught e.g. WO [0023] : claim 12.
Instant claims 16-17: “optional facilitating agent” (keeps metal soluble) broadly reads on metal chelators and/or complexing anionic species (e.g. Na/K citrate; Na/K gluconate); taught at e.g. gluconic acid derivatives(e.g. buffered) anticipates these claims e.g. WO [0016]-[0018]; claim 4 (“salts thereof” of gluconate include Na/K salts).
Instant claim 18: WO teaches solvents including water e.g. WO [0025]; claim 14.
The applied reference above has a common assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Claims 1-10, 12-13 and 15-18 are rejected under 35 U.S.C. 102 (a)(1)/(a)(2) as being by anticipated by over Smith et al. US 9347024 (Pub: May 20,2016).
Smith et al. teaches compositions which are capable of sequestering calcium ions that are partially derived from renewable carbohydrate feedstocks. The calcium sequestering compositions are mixtures containing one or more hydroxycarboxylic acid salts, one or more oxoacid anion salts, and one or more citric acid salts.
Smith et al. (e.g. claims 1-11 and Examples and Tables) teach:
-A composition containing a “micronutrient” (e.g. calcium : Group 2: alkaline earth metal) and “salt” (e.g. calcium chloride: see example 1);
- “biochelate” (e.g. “ at least one gluconate salt, about 5% to about 15% by weight of at least one gluconate salt, about 3% to about 9% by weight of at least one 5-keto-gluconate salt” ‘924 patent claim 1 which are “aldonic acids” and glucose oxidation products)
- “ring opener”: e.g. “active oxygen compounds including perborates, sodium carbonate, sodium perborates … (see col. 11, lines 10-32); di/tri carboxylic acids: e.g. oxalic, tartaric glutaric ; formic , hydrolfuorosilici acid, silicates etc. and see col. 12, lines 46-62)
Borate and derivatives are a preferred embodiment. See e.g. patent claims 9-10. and
- “solvent” : e.g. water and/or citrate. See e.g. Tables 1-13 “citrate”
See also Tables 1-13, e.g. table 13: borate, citrate, borate/citrate sequestering agents and col. 20, lines 5-67 (synergistic combinations of glucarate with aluminate and citrate and glucarate/borax and citrate combinations.
Accordingly, instant claims 1-5 and 18 are anticipated.
--Regarding instant claim 6 (buffered glucose oxidation product), Smith et al. teach. The incorporation of “pH buffering agents” (see col. 5, lines 16-20) and incorporate buffering agents into its claimed compositions. See e.g. patent claim 8. Example 1 comprises a biochelant (e.g. sequestering agent) comprises a buffer (e.g. “the pH was adjusted …using either dilute HCL or 1M sodium hydroxide solution.”). Accordingly, claim 6 is anticipated.
--Regarding instant claim 7, Example 1 further includes “sodium oxalate” (e.g. a di-keto acid). Also see patent claims which includes “at least one oxoacid anion salt.
--Regarding instant claim 8, Patent Tables 1-13 exemplify a number of different sequestering agents (“biochelant”) that meet the (broad) concentration range of “about .1-about 99wt%”.
--Regarding claims 9-10, the patent teaches “micronutrient salts” comprising boron and metals (e.g. iron) and their oxides. See e.g. patent claims 4-5; 9-10. Tables 1-13, particularly Tables 9 and 13 teaching borate.
--Regarding claims 12, 13 and 15, the patent teaches “active oxygen compounds including perborates, sodium carbonate, sodium perborates … (see col. 11, lines 10-32); di/tri carboxylic acids: e.g. oxalic, tartaric glutaric ; formic , hydrolfuorosilici acid, silicates etc. (see col. 12, lines 46-62
--Regarding claims 16 and 17 (“facilitating agents”: e.g. Na/K citrate/gluconate), the patent teaches many compound that fit the functional definition and the following species: citrate salts (e.g. see col. 4, lines 40-45; ) and gluconate salts (e.g. col. 3, lines 25-45). See also claim 1 (e.g. gluconate salts) and claim 6 (e.g. citrate salts).
--Regarding claim 18, the patent discloses aqueous and citrate solvent solutions. See e.g. Example 1 : aqueous ; claim 1 (citric acid salts “about 1-50%).
Claims 1-5, 8-11, 13, 16 and 18 are rejected under 35 U.S.C. 102 (a)(1)/(a)(2) as being by anticipated by CN 109369293.
This reference teaches a composition that comprises a "biochelant" (see e.g. abstract, "7-12 parts of sodium gluconate"; see present spec. para. 0028); a "micronutrient salt" (e.g. abstract "2-5 parts magnesia": present spec. para. 0037); a "ring opener" (e.g. abstract "15-19 parts urea" and present spec 0041); and a "solvent" (e.g. abstract "33-43 parts of water"). Additionally, zinc, manganese, copper, iran and cobalt can be “micronutrients . See reference claim 4. Thus, instant claims 1-5, 13 and 18 are anticipated.
The reference composition comprising 7-12 parts of sodium gluconate falls within the instant claim 8 range of about .1%- about 99wt%.
Regarding instant claims 9-11, the reference teaches micronutrients and their salts including magnesium, zinc, fulvic/humic acids and combinations thereof. See reference claims and Abstract.
Regarding instant claim 16 (“optional facilitating agent”), the reference teaches “Specific embodiment 2” which includes “nitro humic acid” that “solubilizes” the metal and is within the scope of the specification definition of a “facilitating agent”.
Claims 1-10, 12 and 16-18 are rejected under 35 U.S.C. 102 (a)(1)/(a)(2) as being by anticipated by Tanaka et al. US 2012/015731 (Pub: June 21, 2012) (Herein: Tanaka).
Tanaka teaches a composition in concentrated form (“the concentrate”) for dilution with water (“solvent”) (as in instant claims 1 and 18) in the preparation of an agricultural composition for application to crops, soil or animals, comprising a carbohydrate-based pH modifying agent and a pH indicator. The proportions of the pH indicator and the pH modifying agent in the concentrate are selected so that when the concentrate is diluted with an appropriate amount of water, the pH indicator indicates visually by colouration of the composition, whether or not the pH of the water is suitable for acceptable agricultural activity of the chemical. The invention also provides a process for preparing the agricultural composition by mixing the concentrate with water, and adding the agricultural chemical to the composition, if it is not already present in the concentrate.
A possible alternative to agricultural compositions containing high levels of phosphoric acid and phosphates could be provided by the use of one or more carbohydrate acid(s) as the pH modifying agent or as a component of the pH modifying agent of the concentrate in the place of an inorganic acid. The inclusion one or more carbohydrate acid(s) provide advantages over agricultural compositions comprising phosphates and/or phosphoric acid. … In addition, a carbohydrate-based pH modifying agent within the concentrate and the agricultural composition prepared provides an additional nutrient source to treated plants and soil microbes. Carbohydrates are a compatible and effective source of organic nutrients for treated plants and soil microbes, particularly if micronutrients are present in the composition. [0010].
The reference composition (“the concentrate) is intended to be added to micronutrients which include common micronutrient additives such as copper, magnesium and zinc (anticipating instant claims 3-5; 9-10). Accordingly, in addition to the “pH modifying agent” property the reference indicates the “chelating” by assisting in plant uptake of the(micro) nutrients. In any event the glucose acids are within the scope of “biochelants” as defined in the specification. Regarding amounts, the reference indicates that these amounts of pH modifying agents would be determined by one of ordinary skill (see e.g. [0050 lines 10-20; and are exemplified to be in Examples and Tables to be 20%, 25%, 40% which would clearly anticipate “about 0.1wt% to about 99wt%” of instant claim 8.
Additionally, in a preferred embodiment, the concentrate comprises one or more carbohydrate acids selected from the group consisting of aldonic acids (elected species: instant claim 2) , uronic acids and aldaric acids. The carbohydrate acid may be selected from the group consisting of glucoheptonic acid, gluconic acid, glucuronic acid, glucaric acid, mannonic acid, mannuronic acid, mannaric acid, galactonic acid, galactaric acid, galacturonic acid, guluronic acid, iduronic acid, ribonic acid, arabonic acid, xylonic acid, erythronic acid, threonic acid, tartaric acid and any combination thereof.[0019] (with emphasis).
In yet another embodiment of the invention, the composition further comprises an acid selected from the group consisting of acetic acid, orthophosphoric acid, citric acid (elected species) , glutaric acid, glycolic acid, lactic acid, malonic acid, oxalic acid, phthalic acid, succinic acid, phosphorus acid, amino-tris(methylenephosphonic) acid, and etidronic acid. [0020] (with emphasis).
In another embodiment of the invention, the composition further comprises a buffer system. The buffer system comprises a salt of a conjugate base of any acid present within the composition. Thus, in the case where the composition comprises a carbohydrate acid, the buffer system may comprise a salt of a conjugate base of the one or more carbohydrate acids present within the composition (anticipating instant claim 6) . In the case where the composition comprises an acid selected from the group consisting of acetic acid, orthophosphoric acid and citric acid (elected species: instant claims 16-17) , the buffer system may comprise a salt of a conjugate base of the acid that is selected (anticipating instant claim 7). For example, the buffer system may comprise compounds selected the group consisting of phosphate salts such as monoammonium phosphate and monopotassium phosphate, acetate salts such as sodium acetate (elected species counterion: sodium) , citrate salts such as sodium citrate (elected species counterion: sodium) , and potassium hydrogen phthalate. [0021, with emphasis). Similarly, see claims 1 and 5-9 drawn to pH modifying “acids” including citrate and ph modifying “carbohydrate” (e.g. gluconic) and their “conjugate base” which would include sodium/potassium salts (compare to instant claims 16-17 “facilitating agents” e.g. Na/K citrate and K-gluconate. Accordingly, buffered “biochelants” (aldonic acid derivatives taught by the reference) anticipate instant claims 1-7.
In a further preferred embodiment the reference “concentrate” can comprise “one or more agricultural chemicals”, which include “amides” (flusulfamide and trichlamide: [0024]; and benzimidazoles dicarboxamide [0073]. Additionally, as already mentioned pH modifying acids include “oxoacid” salts e.g. conjugate base of phosphoric or citriic acids. See also Table 2; claims 1, 8 and 9.
Thus, instant claim 12 is anticipated.
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.
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.
Claim(s) 11 and 15 (in addition to claims 1-10, 12 and 16-18) is/are rejected under 35 U.S.C. 103 as being unpatentable over Tanaka et al. US 2012/015731 as applied to claims 1-10, 12 and 16-18 above, and further in view of : CN104945027A and Henderson et al. WO2010/027275 (Pub: 3/11/10).
The Tanaka reference teaching applied supra is incorporated by reference in its entirety.
It is noted that the Tanaka reference suggests the addition of “fertilizer” additives (“one or
more agricultural chemicas”) for obtaining an improved fertilizer composition.
The Tanaka reference teaching differs by failing to teach:
a. borates (claim15: as “ring openers”); and
b. humic/fulvic acids (claim 11: as a “micronutrient salt”)
However, the CN104945027A reference teaches a method for preparing a “chelated” Fe-Zn-B fertilizer which is a high-concentration nutrient, which , when added with a surfactant, can easily penetrate through leaf tissues to enter the inside of the leaf surface, and carries nutrient to be transported at the phloem part, so that absorption and utilization by crops can be effectively improved. The microelement content is high, formation of insoluble matters is prevented, the utilization rate is improved all at low cost. See Abstract.
The CN104945027A reference exemplified and claimed embodiments are directed to compositions comprising Fe/Zn sulfate salts and borate salt derivative (e.g. sodium octaborate tetrahydrate: as in instant claim 15) with an added surfactant. See Examples 1-5; Table 1 data; claims 1-5.
Additionally, Henderson teaches a “fertilizer additive” for improving the performance of phosphate-based fertilizers. Among the preferred plant nutrients are a source of boron, especially borate salts, including Ca/Na borate, hydrated sodium calcium borate hydroxide which increases plant uptake of calcium ions (as in instant claim 15). See page 3, lines 25-31; page 11, lines 25-28.
Henderson “fertilizer additives” include “humate” and preferably “fulvic acid” (as in instant claim 11) which increase plant absorption of calcium, iron and aluminum ions. See page 11, lines 7-12.
See also examples and claims 1-19.
Accordingly, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date to incorporate fertilizer additives into the Tanaka reference teaching that include:
“borate salts” (instant claim 15) for improved micronutrient Fe/Zn/Ca uptake as taught by both the CN104945027A and Henderson references; as well as adding
humic/fulvic acids (instant claim 11) to improve micronutrient plant absorption (e.g. Ca/Fe/Al) as taught by Henderson, with a reasonable expectation of success.
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 1-13 and 15-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 and 16 of U.S. Patent No. US 12570585B2.
Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims teach a composition comprising a “biochelant” (an aldonic acid: glucose derived e.g. gluconic) and a micronutrient salt (e.g. boron/iron/, Zinc) and its counterions (e.g. Na/K etc), a “ring opener” (e.g. oxoacid salt, amide etc) and a solvent (e.g. water).
Claims 1-13, 15 and 18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3-19 of co-pending Application No.18/566,061 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the reference ‘061 application teach compositions (detergent additive intended use) that comprise a “biochelant” (e.g. aldonic acids derived from glucose e.g. gluconic) and counter cations (e.g. Grp 1/3/8/11/12 metals and salts (e.g. Mg/Ca and salts; a “ring-opener” (e.g. silicate/urea); and a solvent (e.g. water). Reference application claims 12-13 can further comprise the addition of “conventional chelators” which is within the scope of the instant “comprising” language. Additionally, the reference application claims 14-19 further include “performing enhancing compounds” and “surfactants” which are within the scope of the instant “comprising” language.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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/BENNETT M CELSA/Primary Examiner, Art Unit 1600
