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 .
Status of claims
Claims 1-2, 12-13, 19 and 21 are cancelled by the applicant. Claim 11 is original, yet withdrawn due to a restriction election. Claims 3-6 and 14 are currently amended. Claims 7-10, 15-18, and 20 are previously presented. Claim 22 is new. Claims 3-10, 14-18, 20, and 22 are pending and under examination.
Priority
This application is a 371 of PCT/NL2022/050576, filed on 10/07/2022. Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. PCTNL2021050610, filed on 10/08/2021. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 04/05/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Election/Restrictions
Applicant’s election of Group I and the species of di-n-propyl thiosulfonate (PTSO), diphenyl thiosulfonate, and di-n- propyl thiosulfinate (PTS) for present claims 3 and 11 in the response and amendments filed on 03/24/2026 is acknowledged. Group II (claim 11) in addition to all other species of claim 3 and 11 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention or species, here being no allowable generic or linking claim. The election is treated as without traverse as applicant as requested by the applicant.
Claim Objections
Claims 16-18 are objected to because of the following informalities:
Claims 16-18 recite that “wherein said composition comprises…”, which is improper phrasing, as it should be recited that “wherein said composition further comprises…” due to the addition of new elements introduced in these claims.
Claim 17 recites “Yuka extract”. This is incorrect terminology, as the proper spelling is “yucca extract”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112 (b)
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.
Claim 17 and 22 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.
Claim 17 contains the trademark/trade name “Tween”. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a surfactant and emulsifier (e.g., polysorbate 20 and polysorbate 80), and accordingly, the identification/description is indefinite.
Claim 22 recites that the method “improves…quality characteristics” of the plant. However, “quality characteristics” is vague and undefined, as the claim does not specify which quality characteristics are encompassed or how such characteristics are to be measured or evaluated to determine whether an improvement has occurred. As such, one of ordinary skill in the art cannot reasonably discern the metes and bounds of the claimed invention, rendering it indefinite.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 3-8, 10, 14-18 and 20 are rejected under 35 U.S.C. 101 because these claims are directed to natural phenomenon/product of nature and amount to nothing significantly more than that. Independent claim 3 recites a method comprising providing to a plant a compound selected optionally from di-n-propyl thiosulfonate (PTSO) and di-n- propyl thiosulfinate (PTS) (see pages 10 and 11 of applicant’s specification regarding PTS), or a composition reciting such compound. Cascajosa-Lira et al (Environmental Research, 2023, volume 236, pages 1-12) provides that PTSO is an organosulfur compound naturally found in Allium cepa and that is formed from disproportionation reaction of PTS (this involves simultaneous oxidation and reduction and is a natural process in detoxification) (abstract and page 1, introduction). Claim 3 does not dictate a purpose for the method nor specialized steps of providing in claim 3. These recited compounds are naturally occurring onion-derived organosulfur compounds produced upon damage or tissue disruption (i.e., as part of a natural process in a plant (onion of Allium family)) which can thus also naturally be released and provided to surrounding soil, the onion plant itself, and/or neighboring plants during natural onion injury or decomposition. Thus, the natural compound or a natural composition thereof (soil with the natural compounds or damaged onion material) provided to the onion plant due to the damage or plants present nearby would be a natural phenomenon. Therefore, claim 3 recites a natural phenomenon involving a product of nature. The claim does not require the formulation to have additional components markedly different from natural compounds, nor does it require a particular technological treatment step that meaningfully confines the claim beyond the generalized act of providing the natural compound or natural composition containing it to a plant. It can be provided In this case, merely placing a natural product into a generic use environment or reciting instructions to apply it is not enough to render the subject matter eligible. Claim 4 only provides days in a cycle or how many times it is provided where such natural events may have varying occurrence. Claims 5-6 only include amounts of the natural compounds which vary depending on the number of onions, size of onions, etc. The claim does not provide a purpose for the method or that these amounts have to be effective for any purpose and one that wouldn’t occur naturally. Claim 7 simply limits the plant to a clade (i.e., angiosperm) that still encompasses onions. Claim 8 provides applied directly to the plant, seed or soil, but if the compound exists in the onion/garlic plant or soil around plant due to natural decay, then this is applied directly to a plant or soil. The claimed method does not indicate a purpose with effectiveness due to an applying that would make it different than what can occur in nature. Claim 14 merely narrows the compound to one of the naturally occurring ones (i.e., PTSO). Claim 15 adds only one required element which may be antimicrobials, and onions naturally have antimicrobial components (e.g., quercetin). Claims 10 and 18 merely and broadly recite amino acids, which can be biostimulatory, or peptides and amino acids which naturally occur in onion plants as well (e.g., histidine, leucine; gamma-L-glutamyl-trans-S-1-propenyl-L-cysteine sulfoxide). Claim 20 provides for other plants including traditional garden plants like peas (pisum) and Lactuca (lettuces), which can exist alongside onions or garlic plants. Accordingly, the above claims are directed to a natural phenomenon that occurs with members of the Allium plant family (e.g. onions) and fail to recite additional elements that integrate the exception into a practical application, and are therefore not patent-eligible. Applicant may consider amending the claim so that the method involves more than just the providing to a plant where the method currently has no particular purpose. The method can be amended to incorporate steps or ways to provide that are not naturally occurring or providing to plants in amounts that are non-naturally occurring and provide effectiveness for some purpose that would necessitate such amounts (e.g. recite amounts or “in an effective amount” and provide for A method for improving plant growth comprising administering to the plant, or etc.). In regards to claims 16 and 17, these encompass natural surfactants (e.g. yuka extract is a natural emulsifier, lecithins are natural emulsifiers, onions have onion saponins), but the emulsifier is not incorporated where the form is an emulsion. Thus, it amounts to other possible natural compounds in a composition without a necessary markedly different change in structure or without necessary improvement of function of the listed compounds via the combination. Right now, the claims do not provide for an application that would be different from what can occur naturally with the general providing of the natural compounds of plants to plants or the soil of plants by natural processes involving natural damaging or diffusion into soils due to decay.
Claim Rejections - 35 USC § 102
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 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.
Claims 3, 7-8, 14, and 22 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Garcia-Pareja et al. (US20090018194A1).
Garcia-Pareja et al. discloses utilization of antimicrobial agents derived from plants of the Alliaceae family for the prevention and control of crop diseases, post-harvest rotting and as environmental disinfection products (abstract). The agents include propyl propylthiosulfinate (di-n- propyl thiosulfinate, PTS) and propyl propylthiosulfonate (di-n-propyl thiosulfonate, PTSO) compounds for pre- and post-harvest treatments, control of rotting in fruits and vegetables; disinfection of agricultural soils, control of microorganisms, and environmental disinfection (abstract)––which improves plant characteristics such as quality and yield. Garcia-Pareja et al. teaches that the agents can be used as pure active principles or in mixtures, in aqueous solutions or in any formulation, either liquid or supported in a solid agent or formulation; as single active principles or in formulation, together with other synthetic or natural antifungal agents, biocontrol agents, fertilizers, antioxidants, growth regulators or regulators of any other type; by means of wetting, spraying, atomization, injection in the soil, and in irrigation systems (abstract, ¶30). Garcia-Pareja et al. specifies that propyl propylthiosulfinate and propyl propylthiosulfonate may serve as antimicrobial agents in pre-harvest and post-harvest treatments, environmental and soil disinfectants, as a natural and effective alternatives to the use of synthetic pesticides, fungicides or disinfectants. [¶21]. In a single embodiment [¶83-¶93, example 1], PTS and PTSO solutions were directly applied to Navelina oranges (Citrus sinensis, an angiosperm) [¶87], with the results showing that both PTS and PTSO were effective in the control of post-harvest rot [¶92], thereby improving quality characteristics of the fruit.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claims 3, 7-8, 14-15, 22 are rejected under 35 U.S.C. 103 as being unpatentable over Garcia-Pareja et al. (US20090018194A1).
Garcia-Pareja et al. discloses utilization of antimicrobial agents derived from plants of the Alliaceae family for the prevention and control of crop diseases, post-harvest rotting and as environmental disinfection products (abstract). The agents include propyl propylthiosulfinate (di-n- propyl thiosulfinate, PTS) and propyl propylthiosulfonate (di-n-propyl thiosulfonate, PTSO) compounds for pre- and post-harvest treatments, control of rotting in fruits and vegetables; disinfection of agricultural soils, control of microorganisms, and environmental disinfection (abstract)––which improves plant characteristics such as quality and yield. Garcia-Pareja et al. teaches that the agents can be used as pure active principles or in mixtures, in aqueous solutions or in any formulation, either liquid or supported in a solid agent or formulation; as single active principles or in formulation, together with other synthetic or natural antifungal agents, biocontrol agents, fertilizers, antioxidants, growth regulators or regulators of any other type; by means of wetting, spraying, atomization, injection in the soil, and in irrigation systems (abstract, ¶30). Garcia-Pareja et al. specifies that propyl propylthiosulfinate and propyl propylthiosulfonate may serve as antimicrobial agents in pre-harvest and post-harvest treatments, environmental and soil disinfectants, as a natural and effective alternatives to the use of synthetic pesticides, fungicides or disinfectants. [¶21]. In a single embodiment [¶83-¶93, example 1], PTS and PTSO solutions were directly applied to Navelina oranges (Citrus sinensis, an angiosperm) [¶87], with the results showing that both PTS and PTSO were effective in the control of post-harvest rot [¶92], thereby improving quality characteristics of the fruit.
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to provide to a plant propyl propylthiosulfinate and propyl propylthiosulfonate, either alone or in a composition, and to apply such compound or composition directly to the plant and soil (e.g., via soil treatment or irrigation), and to further include such compound formulations comprising additional agricultural components such as fertilizers or other actives. This is Because Garcia-Pareja et al. expressly teaches the use of these compounds as effective antimicrobial agents for agricultural applications including pre-harvest treatment, soil treatments, and irrigation delivery, and further teaches their use in formulations with other agricultural components. Garcia-Pareja et al. also teaches that such use improves plant characteristics including quality and yield, thereby suggesting the claimed functional results. Accordingly, a person of ordinary skill in the art would have been motivated to use the expressly disclosed compounds, including PTSO, in the disclosed agricultural compositions with the stated excipients such as fertilizers to obtain additive benefits such as disease control, rot prevention, and overall increased quality and yield, and would have done so with a reasonable expectation of success in doing so because Garcia-Pareja et al. provides direct teachings that these compounds are effective in such agricultural contexts and discloses multiple workable delivery formats and treatment conditions for their use on plants.
Claims 4 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Garcia-Pareja et al. (US20090018194A1) in view of Biasone et al. (US20210267217A1).
Garcia-Pareja et al. teaches all required limitations of present claims 3, 7-8, 14-15, and 22.
However, Garcia-Pareja et al. fails to teach the required limitations of present claims 4 and 9.
Biasone et al. discloses a composition based on algal and/or plant extracts and its use in agriculture to improve water use efficiency and/or water productivity in plants and/or agricultural water management thus resulting in increased yield of crop plants per unit water used (abstract). Biasone et al. teaches that Preferably, the composition is used to feed plants, preferably after being diluted in water, once or repeatedly throughout the plant cycle, preferably the crop cycle, wherein the feeding step is preferably through the soil and/or through the leaves [¶27]. Biasone et al. further emphasizes that the composition is preferably applied once or may be applied multiple times throughout the plant cycle, preferably the crop cycle [¶126]. Biasone et al. teaches that the solution containing the composition according to the present disclosure can be distributed to plants/crops, preferably via drip irrigation systems or poured onto soil or injected to soil nearby the root area [¶49]. Biasone et al. teaches the composition may contain pesticides [¶122]. Biasone et al. teaches that according to a preferred embodiment, the composition further comprises nutrients, an herbicide, nematicide, a fungicide, an insecticide; and/or a drying agent [¶25].
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of Garcia-Pareja et al. to provide the disclosed compounds or compositions to the plant at least 6 times during the crop cycle and/or at repeated intervals and to apply the composition via drip irrigation, as recited in claims 4 and 9, in view of Biasone et al. This is because Garcia-Pareja et al. teaches agricultural application of PTS and PTSO including soil and irrigation-based delivery, while Biasone et al. expressly teaches that such compositions may be applied once or multiple times throughout the plant or crop cycle and further teaches distribution via drip irrigation systems. A person of ordinary skill in the art would have understood that the recited “at least six times” in present claim 6 falls within the scope of Biasone et al.’s teaching of application “multiple times”, and that selecting a specific number of applications and interval timing within the crop cycle constitutes a matter of routine optimization of result-effective variables, such as treatment frequency, to achieve desired agronomic outcomes. Accordingly, a person of ordinary skill in the art would have been motivated to adopt repeated application and drip irrigation delivery to optimize efficacy, yield and resource efficiency, with a reasonable expectation of success in doing so because both references teach compatible agricultural treatment methods and delivery techniques for applying active compositions to plants and soils.
Claims 5 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Garcia-Pareja et al. (US20090018194A1) in view of Ford et al. (CA3133059A1).
Garcia-Pareja et al. teaches all required limitations of present claims 3, 7-8, 14-15, and 22.
However, Garcia-Pareja et al. fails to teach the required limitations of present claims 5 and 6.
Ford et al. discloses compositions for use in agriculture and horticulture, wherein the compositions comprise one or more carbohydrates and one or more active agents selected from the group comprising one or more phytotoxins, one or more nutrients, and one or more organic molecules (abstract). Ford et al. teaches that the composition may be applied to the target area at an application rate of from about 100 g/hectare to about 10 kg/hectare of an active agent (page 33, line 21 to page 34, line 2). Ford et al. further teaches that the composition can include from 0.01 g/L to 100 g/L of one or more active agents (page 8, lines 24-38). Ford et al. teaches that the compositions may be used in consecutive or simultaneous application to a plant population or an environmental site singly or in combination with one or more additional treatments, such as treatment with insecticides, pesticides, chemicals, fertilizers, or other compounds (page 28, lines 36 to page 29, line 2). Ford et al. teaches that the composition may be directly applied to the plant (page 26, lines 1-2). Ford et al. further teaches that the composition may be applied to the soil and seed (page 32, lines 27-30).
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to provide the compounds or compositions of Garcia-Pareja et al. to a plant in an amount (in kg/ha) overlapping with that in present claim 5 and in a concentration (in mg/L) overlapping with that in present claim 6, in View of Ford et al. This is because Garcia-Pareja et al. teaches the use of PTS and PTSO in agricultural methods, while Ford et al. concurrently teaches application of such active agents at amounts per hectare and concentrations that overlap with those stated in the present claims. A person of ordinary skill in the art would have thus been motivated to apply the known compounds of Garcia-Pareja et al. using the application rates and concentrations taught by Ford et al. in order to achieve effective agricultural treatment, as Ford et al. provides guidance to suitable dosing parameters for active agents in similar agricultural contexts. A person of ordinary skill in the art would have thus had a reasonable expectation of success in doing so because both references are directed to applying agricultural composition to crops, and Ford et al. identifies dosage ranges as effective for agricultural applications, rendering selection of specific amounts within the claimed ranges a matter of routine optimization of result-effective variables such as concentration and application rate.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Garcia-Pareja et al. (US20090018194A1) in view of Tachibana et al. (US20120129695A1).
Garcia-Pareja et al. teaches all required limitations of present claims 3, 7-8, 14-15, and 22.
However, Garcia-Pareja et al. fails to teach the required limitations of present claims 10.
Tachibana et al. discloses a method of producing a plant biostimulant including hydrolyzing bacterial cells to obtain a hydrolysate and formulating the hydrolysate as a plant biostimulant for foliar application or application as a soil adjuvant (abstract). Tachibana et al. teaches that the such plant biostimulant include amino acids [¶5, ¶135]. Garcia-Pareja et al. teaches that such bio-stimulants can be applied to plants [¶3].
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate the amino acid teachings of Tachibana et al. into the agricultural compositions and methods of Garcia-Pareja et al. This is because Garcia-Pareja et al. teaches that agricultural compositions applied to plants may contain bio-control agents, while Tachibana et al. teaches that amino acids can be used as bio-stimulants (a form of bio-control agent) for agricultural compositions applied to plants. Therefore, a person of ordinary skill in the art would have been motivated to incorporate the amino acid teachings of Tachibana et al. into the composition and methods of Garcia-Pareja et al. in order to obtain its bio-stimulation benefits. Furthermore, because both references are directed to the same field of application, and because Garcia-Pareja et al. explicitly allows this class of ingredients taught by Tachibana et al. into its composition, a person of ordinary skill in the art would have had a reasonable expectation of success in combining these teachings to arrive at the claimed invention.
Claims 16-18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Garcia-Pareja et al. (US20090018194A1) in view of Bennett et al. (US20180163203A1).
Garcia-Pareja et al. teaches all required limitations of present claims 3, 7-8, 14-15, and 22.
However, Garcia-Pareja et al. fails to teach the required limitations of present claims 16-18, and 20.
Bennett et al. discloses compositions and methods for delivering a polynucleotide from the exterior surface of a plant or plant part into the interior of a plant cell (abstract). Bennett et al. teaches that such plants include Brassica tournefortii and Lactuca serriola [¶90]. Bennett et al. teaches that the composition may comprise amino acids as an osmolyte [¶106], and lipopeptides as biosurfactants [¶136]. Bennett et al. teaches that the disclosure may further include pesticides [¶109]. Bennett et al. teaches that the composition may further include emulsifiers [¶130]. Bennett et al. teaches that the composition may include Tween® as a surfactant [¶133]. Bennett et al. teaches that the composition may be in the form of a solid, a powder, a solution, an emulsion, or a suspension [¶99].
It would have been obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the agricultural compositions and methods of Garcia-Pareja et al. to include plants such as Brassica and Lactuca, amino acids, emulsifiers, and surfactants such as tween, and additional components such as pesticides, as recited in the present claims in view of Bennett et al. This is because while Garcia-Pareja et al. teaches the use of PTS and PTSO as pesticides in agricultural compositions applied to plants, Bennett et al. teaches that such compositions applied to plants, including Brassica and Lactuca species, may comprise amino acids as osmolytes, emulsifiers, lipopeptides and tween as surfactants in the form of solutions, emulsions, and suspensions. A person of ordinary skill in the art would have thus been motivated to incorporate such known formulation components of Bennett et al. into the compositions of Garcia-Pareja et al. in order to improve delivery, dispersion, stability, and overall effectiveness of such active ingredients in agricultural applications, as the above components are conventionally used in agrochemical formulations for these purposes. A person of ordinary skill in the art would have had a reasonable expectation of success in doing so because both references are directed to compositions related to plants in agricultural applications, and Bennett et al. provides explicit guidance that such components are compatible with plant-applied formulations, rendering its inclusion in the compositions of Garcia-Pareja et al. as a predictable use of known elements according to their established functions.
Conclusions
No claim is found allowable.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARYA AHMADI BAZARGANI whose telephone number is (571)272-0211. The examiner can normally be reached Monday - Friday 9:00AM - 5:00 PM.
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Arya A. Bazargani, Ph.D.
Patent Examiner
Art Unit 1613
/MARK V STEVENS/Primary Examiner, Art Unit 1613
Prosecution Insights