DETAILED ACTION
Status of Application
The Examiner acknowledges receipt of the amendments filed on 8/19/2026 wherein claim 4 has been amended.
Claims 4-6 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s arguments filed 8/19/2026 regarding the rejection of claims 4 and 5 made by the Examiner under 35 USC 102(b) over Takashima et al. (J Phys D Appl Phys, 63, 2020, 1-12) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 5/19/2026.
Applicant’s arguments filed 8/19/2026 regarding the rejection of claims 4 and 5 made by the Examiner under 35 USC 103 over Takashima et al. (J Phys D Appl Phys, 63, 2020, 1-12) in view of Fitzsimmons et al. (JU Phys D Appl Phys, 32, 1999, 1136-1141) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 5/19/2026.
In regards to the 102(a)(1) and 103 rejections, Applicant asserts the following:
A) Takashima’s device is a liquid spray and combines the RONS effluent with distilled water to produce PEGDS and spray PEGDS. Takashima fails to disclose “exposes a plant to a gas”. Furthermore, since dinitrogen pentoxide is sensitive to water, the liquid spray of Takashima cannot induce disease resistance by exposure to dinitrogen pentoxide.
In response to A, instant claim 4 requires “a device…. configured to expose a plant to a gas containing dinitrogen pentoxide…” The device of Takashima meets this requirement as the output of Takashima produces the physical gas (RONS such as N2O5) as well as solution comprising said gas (PEGDS). The plasma effluent gas dissolved solution comprises gas. Whether the gas is dissolved in solution or in the dispersed phase is considered immaterial as the claims do not stipulate that the gas cannot be in solution but instead only require that the device results in a “gas”. Takashima meets this requirement.
The ‘configured to’ language of the claims does not differentiate the claimed device from the prior art as it does not provide structure not already disclosed by the prior art. While it is interesting that the device can be used for inducing disease resistance in a plant, this use does not provide any critical structural motif to the claimed structure. The device “being configured” to treat a plant does not add anything limiting to the claim other than provide an avenue for using the device. In this regard, as Takashima provides a gas/solution capable of being collected and dispensed, Takashima’s device can fairly be said to be “configured to” treat a plant. See MPEP 2111.02 regarding intended use limitations that do not provide structural limitations but instead describe how the claimed product is to be or may be used.
Maintained Rejections, of Record
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.
Claims 4 and 5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Takashima et al. (J Phys D Appl Phys, 63, 2020, 12 pgs).
Takashima discloses a transportable spray device utilizing liquid-phase air-plasma-generated reactive species generator having the following structure:
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(see Figure 1). The device contains a reservoir gas containing air or oxygen. The reservoir gas is introduced to a plasma so as to produce a plasma effluent gas. When the input gas is air (a mixture of nitrogen and oxygen gas) the plasma generated product includes various reactive nitrogen species (RNS) and reactive oxygen species (ROS) (collectively, ‘RONS’) (‘production portion’ per instant claim 6) such as NO, NO2, N2O5 (see Table 2, Figure 3(a) and pages 3 and 6). The RONS effluent is then combined with distilled water to produce a plasma effluent gas dissolved solution (PEGDS) which can then be sprayed onto a target plant surface so as to control plant pathogens as RONS exhibit antimicrobial activity (see page 1) (see instant claims 4 and 5). Although a feature of Takashima’s prior art device, it is noted that the limitations that the claimed device ‘can’ be used for treating plants, as set forth by instant claims 4-6, is an intended use limitation as it sets forth how the device may be used without structurally limiting the device itself. See MPEP 2111.02(II).
Claims 4 and 5 all limit the device for what the device ‘can’ do and/or how it ‘can’ be used. In regards to how the device can be used, as discussed previously, this is an intended use and not considered limiting to the device’s structure. Regarding the claimed device, however, claim 5 recites, “… a dinitrogen pentoxide production portion configured to produce dinitrogen pentoxide using a plasma generated with air” and claim 6 recites, “…a NOx production portion configured to produce nitrogen oxides…. ; an ozone production portion configured to produce ozone…; a mixing portion configured to produce dinitrogen pentoxide”. Defining the structure by what the portions ‘can’ do via configuration, rather than what they actually do, renders the portion’s function optional so long as the devices production and mixing portions has the capability to produce NOx, ozone and dinitrogen pentoxide, respectively. There is no explicit requirement that they be made according to such techniques, just that the chemical species are produced. In the present case, Takashima discloses each of the production and mixing portions and their respective ‘can’ functions.
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 4-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Takashima et al. (J Phys D Appl Phys, 63, 2020, 1-12) in view of Fitzsimmons et al. (J Phys D Appl Phys, 32, 1999, 1136-1141).
Takashima is relied upon for disclosure described in the rejection of claims 4 and 5 under 35 U.S.C. 102(a)(1) and are incorporated herein.
Takashima fails to teach the gas used in the dilution portion of their device as being conditioned such that its moisture content after dilution is lower than a predetermined moisture content.
Fitzsimmons, like Takashima, is directed to plasma-assisted synthesis of N2O5 from air according to the following diagram:
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. It is taught that nitric acid is an unwanted side product produced due to the presence of moisture in the system, possibly arising from moisture in the air supply or from moisture absorbed onto the walls of the gas handling system or the IR cell. Fitzsimmons states that the presence of nitric acid represents the unwanted loss of N2O5 and its loss could be mitigated by using better drying techniques for the input air and plasma surfaces (see page 1137). Thus, it would have been obvious to modify Takashima’s device so as to minimize moisture in the system so as to prevent unnecessary loss of N2O5. It is noted that Takashima observes this outcome in regards to the PEGDS by stating that the PEGDS is slightly acidic due to the presence of nitric acid which is likely due to the hydrolysis of N2O5 in the water. And so, with this understanding of the chemistry of N2O5, it would have been obvious to modify Takashima’s dilution step where the RONS effluent is diluted with air to provide a gas source that is as dry as possible so as not to expose the mixture containing N2O5 to ensure maximal N2O5 concentration in the RNOS effluent and ultimately in the PEGDS for application onto plant surfaces.
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.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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
