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 .
Withdrawn Objections/Rejections
The objections to the specification are withdrawn as the amendments to the specification have addressed the informalities.
The previous rejections of claims 1-3 under 35 U.S.C. § 112(b) are withdrawn in view of the claim amendments.
Claim Status
Applicants' amendments and arguments filed on 06/08/2026 have been fully considered.
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claims 1-3 are pending and under current examination.
New Rejections Necessitated by Claim Amendments
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.
Claims 2-3 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claims 2 and 3 recite the limitation, “the grain crops are sprayed in the late vegetation period between the phases of stem extension and milky-wax ripeness”. This is indefinite as not every grain crop is understood to have a “milky-wax ripeness” phase, and it is unclear when the grain crops are sprayed.
As evidenced by The Land Institute (“A Focus on Grain Crops”), there are many different kinds of grain crops including cereals (such as corn, wheat, barley, oat, rye, sorghum, and millet), pseudo-cereals (such as buckwheat, amaranth, and quinoa), legumes, and oilseeds (such as soybean, canola, sunflower, safflower, linseed, and sesame) (pg. 2, “What are the different kinds of grain crops?”). As evidenced by Rudoy et al. (“Overview of methods of wheat grain conservation in early stages of ripeness”, the term “milky-wax ripeness” appears to be known in the art in reference to cereal crops, particularly wheat (see entire document, particularly Abstract). However, the term is not understood to be known in the art for all grain crops; as evidenced by Naeve (“Soybean growth stages”), neither the vegetative stages nor the reproductive stages of soybean growth are known to have a “milk-wax ripeness” phase (see particularly Tables 1 and 2 at pgs. 2-3).
Thus, it is unclear when grain crops such as soybeans are sprayed in the methods recited in instant claims 2 and 3, rendering the metes and bounds of the claims uncertain. For purposes of examination and applying prior art, the Examiner interprets that spraying occurs following stem extension.
Rejections Maintained, Slightly Modified to Address Claim Amendments
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 1 is rejected under 35 U.S.C. 103 as being unpatentable over Grigorevich et al. (SU 1544334 A1, published February 23, 1990; of record), hereafter “Grigorevich”, in view of Sanchez-Sava et al. (US 10,779,534 B2, patented September 22, 2020; of record), hereafter “Sanchez-Sava”.
Grigorevich teaches an environmentally friendly method to increase the efficiency of crop production comprising pre-sowing treatment of seeds and watering plants during the growing season with aqueous solutions containing trace amounts of hydrogen peroxide in a concentration of 10-6 -10-4 mol/l (see entire document, particularly abstract). The concentration of hydrogen peroxide taught by Grigorevich overlaps the claimed concentration range; per MPEP 2144.05, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)”. The aqueous solutions of Grigorevich do not require a chemical stabilizing agent; the aqueous solutions of Grigorevich comprise copper (II) ions (abstract) which are taught to be used in plant development as forming the active center of redox enzymes (see “Claims” on pg. 1). Grigorevich teaches that the method can be applied to grain crops such as soybeans (pg. 2), and exemplifies watering soybean seeds with hydrogen peroxide aqueous solutions before planting into the ground (pg. 1, Example 1). Grigorevich suggests the use of standard agricultural techniques in sowing seeds and watering plants (pg. 2).
Grigorevich does not explicitly teach that the seeds are presowing treated by spraying; Grigorevich further does not teach that the seeds are kept from 10 to 15 hours.
Sanchez-Sava teaches a method for preparing disinfected seed comprising contacting seed with a treatment composition comprising at least one disinfecting agent (abstract); disinfection before planting is important to reduce the impact of seed-borne pathogens and improve crop yield and quality (column 1, lines 11-13). The treatment composition may comprise hydrogen peroxide (column 8, lines 50-51) and water (column 6, lines 43-46). The seed is contacted with the treatment composition for at least 10 seconds and less than 24 hours, and can be contacted by spraying the composition onto the seed (column 5, lines 43-54). Further steps following the method include sowing or planting the disinfected seed (column 13, lines 10-13). The seed is an agricultural crop including grain crops such as rice, wheat, and soybean (column 12, lines 36-60).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to water the seeds in the method Grigorevich by spraying and to contact the seeds with hydrogen peroxide for more than 10 seconds and less than 24 hours prior to sowing, overlapping the claimed range, as suggested by Sanchez-Sava. One of ordinary skill in the art would have been motivated to do so with a reasonable expectation of success in order to use conditions known in the art to be capable of disinfecting grain crop seeds via application of hydrogen peroxide solution in order to improve crop yield and quality, as suggested by Sanchez-Sava. There is a reasonable expectation of success as Grigorevich similarly teaches the pre-sowing treatment of grain seeds with aqueous hydrogen peroxide to increase the yield of crops and suggests the use of standard agricultural techniques. Further, per MPEP 2144.05, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)”.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Grigorevich in view of Sanchez-Sava as applied to claim 1 above, and further in view of Ishibashi et al. (“Hydrogen peroxide spraying alleviates drought stress in soybean plants” Journal of Plant Physiology 2011, 168, 1562-1567; of record), hereafter “Ishibashi”.
The teachings of the modified Grigorevich are set forth above. Particularly regarding instant claim 2, as noted above, Grigorevich teaches both pre-sowing treatment of seeds and watering plants during the growing season with aqueous solutions containing trace amounts of hydrogen peroxide in a concentration of 10-6 -10-4 mol/l (see entire document, particularly abstract). It is interpreted that watering plants “during the growing season” is consistent with the late vegetation period following stem extension of the instant claim.
The combination of Grigorevich and Sanchez-Sava does not explicitly teach that the grain crops are sprayed.
Ishibashi teaches that spraying hydrogen peroxide on soybean leaves enables the soybean plant to avoid drought stress through the maintenance of leaf water content (see entire document, particularly abstract). Exogenous application of hydrogen peroxide induces the expression of reactive oxygen species-related stress response genes which enhances resistance to subsequent stress, increases drought stress tolerance, and allows leaves to maintain a high level of relative water content (pg. 1565-1566, “Discussion”).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to water the crops in the method of the modified Grigorevich by spraying, as suggested by Ishibashi. One of ordinary skill in the art would have been motivated to do so with a reasonable expectation of success in order apply hydrogen peroxide to the plant leaves and increase the drought stress tolerance of the crops, as suggested by Ishibashi. There is a reasonable expectation of success as Grigorevich teaches watering crops, suggesting grain crops such as soybean, with aqueous hydrogen peroxide to increase the yield, and further suggests the use of standard agricultural techniques in watering plants.
Independent claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Grigorevich et al. (SU 1544334 A1, published February 23, 1990; of record), hereafter “Grigorevich”, in view of Ishibashi et al. (“Hydrogen peroxide spraying alleviates drought stress in soybean plants” Journal of Plant Physiology 2011, 168, 1562-1567; of record), hereafter “Ishibashi”.
Grigorevich teaches an environmentally friendly method to increase the efficiency of crop production comprising watering plants during the growing season with aqueous solutions containing trace amounts of hydrogen peroxide in a concentration of 10-6 -10-4 mol/l (see entire document, particularly abstract). It is interpreted that watering plants “during the growing season” is consistent with the late vegetation period following stem extension of the instant claim. The concentration of hydrogen peroxide taught by Grigorevich overlaps the claimed concentration range; per MPEP 2144.05, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)”. The aqueous solutions of Grigorevich do not require a chemical stabilizing agent; the aqueous solutions of Grigorevich comprise copper (II) ions (abstract) which are taught to be used in plant development as forming the active center of redox enzymes (see “Claims” on pg. 1). Grigorevich teaches that the method can be applied to grain crops such as soybeans (see Example 1 on pg. 1; pg. 2). Grigorevich suggests the use of standard agricultural techniques in sowing seeds and watering plants (pg. 2).
Grigorevich does not explicitly teach that the grain crops are sprayed.
Ishibashi teaches that spraying hydrogen peroxide on soybean leaves enables the soybean plant to avoid drought stress through the maintenance of leaf water content (see entire document, particularly abstract). Exogenous application of hydrogen peroxide induces the expression of reactive oxygen species-related stress response genes which enhances resistance to subsequent stress, increases drought stress tolerance, and allows leaves to maintain a high level of relative water content (pg. 1565-1566, “Discussion”).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention to water the crops in the method of Grigorevich by spraying, as suggested by Ishibashi. One of ordinary skill in the art would have been motivated to do so with a reasonable expectation of success in order apply hydrogen peroxide to the plant leaves and increase the drought stress tolerance of the crops, as suggested by Ishibashi. There is a reasonable expectation of success as Grigorevich teaches watering crops, suggesting grain crops such as soybean, with aqueous hydrogen peroxide to increase the yield, and further suggests the use of standard agricultural techniques in watering plants.
Response to Arguments
Applicant’s arguments filed 06/08/2026 have been fully considered, but they are not persuasive.
Regarding the claim rejections under 35 U.S.C. § 103, Applicant argues Grigorevich and Sanchez-Sava are directed to a different problem as Grigorevich employs hydrogen peroxide as a biological stimulant to increase crop yield and Sanchez-Sava employs hydrogen peroxide for disinfecting seeds to reduce seed-borne pathogens, and the Examiner’s rationale for combining the references reflects impermissible hindsight reconstruction. Applicant further argues that spraying followed by keeping for 10 to 15 hours is not taught or suggested as Sanchez-Sava’s disclosure describes a contact duration, not the claimed sequence of a brief spray application followed by a discreet 10-to-15-hour holding period. Applicant argues that Sanchez-Sava’s broad interval does not single out or provide a reason to select the narrow holding window recited.
In response to Applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). The Examiner respectfully disagrees that Grigorevich and Sanchez-Sava are directed to different problems, as both are directed to the pre-sowing treatment of grain seeds with aqueous hydrogen peroxide to increase the yield of crops; the prior art as a whole suggests that such pre-sowing treatments provide multiple benefits including stimulating plant growth and reducing seed-borne pathogens, and the ordinary skilled artisan would be motivated to achieve both of these known benefits through the combined teachings of Grigorevich and Sanchez-Sava. The knowledge of these references were within the level of ordinary skill in the art before the effective filing date of the instant invention.
The argument that the prior art does not teach the claimed sequence of a brief spray application followed by a discreet 10-to-15-hour holding period is unpersuasive. The claim language does not limit the duration of the spray application, nor limit the hold period to being “discreet”. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Regarding the argument that the range of Sanchez-Sava is broad and does not single out or provide a reason to select the narrow holding window, the Examiner notes that, per MPEP 2144.05 I., “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)” and per MPEP 2144.05 II. A., "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)”.
However, per MPEP 2144 III. A., “Applicants can rebut a prima facie case of obviousness by showing the criticality of the range.” The evidence of record does not compare the claimed 10 to 15 hour range to values outside of this range, and thus the Examiner cannot conclude that the claimed range achieves a result that is unexpected from other times suggested by Sanchez-Sava or a result that depends critically on this range. Per MPEP 716.02(d) II., “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960)”. Applicant is encouraged to provide or point to evidence on the record demonstrating the criticality of the claimed range.
Applicant further argues that the claimed concentration range of hydrogen peroxide is critical and demonstrates unexpected results within the claimed range. Applicant argues that the specification reports in Tables 1-4 comparative field data demonstrating statistically significant increases in yield and grain weight percentage for the claimed solutions relative to controls, increases not suggested by the cited art.
These arguments are unpersuasive. As noted above, per MPEP 716.02(d) II., “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960)”. Here, the evidence of record in the tables of the specification compares 5 µmol/L and 50 µmol/L hydrogen peroxide solutions to “natural local water” and a “complex chemical solution”; the concentration of hydrogen peroxide in these comparative solutions is not specified. Thus, the Examiner cannot conclude that the claimed concentration range is critical, particularly in comparison to the concentration range of 10-6 -10-4 mol/l taught by the prior art of Grigorevich, which substantially overlaps the claimed range. Per MPEP 716.02(e), “An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979).”
Regarding the combination of Grigorevich and Ishibashi, Applicant argues that neither teaches nor suggests spraying grain crops specifically in the late vegetation period between the phases of stem extension and milky-wax ripeness for the purpose of increasing yield. Applicant argues that Tables 2-4 of the specification demonstrates that a single spraying in this specific late window produces significant, statistically reliable yield and grain-weight increases.
These arguments are unpersuasive. First, as set forth above, the limitation of “the grain crops are sprayed in the late vegetation period between the phases of stem extension and milky-wax ripeness” is indefinite as not every grain crop is understood to have a “milky-wax ripeness” phase, and it is unclear when grain crops such as soybeans are sprayed in the claimed methods. The prior art reasonably suggests spraying grain crops such as soybean leaves (i.e., following stem extension) in order to increase drought stress tolerance and improve soybean yield. The evidence of record does not demonstrate that spraying in the recited window produces unexpected results over the spraying taught by the prior art. Further, the Examiner notes that, per MPEP 716.02(d), evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support. Here, the claims are broadly directed to increasing the yield of any grain crops, while the specification exemplifies only a single grain crop of Saratovskaya 90 winter wheat. The evidence of record does not demonstrate that the alleged unexpected results extend to any grain crop, and thus is not commensurate in scope with the instant claims.
In view of the forgoing, and as further detailed in the above rejections, the Examiner maintains that the instant claims are rendered obvious by the teachings of the cited prior art.
Applicant notes that they intend to file a compliant IDS with legible copies foreign patents and non-patent literature so that the references listed in the PCT international search report are considered of record.
In response, the Examiner notes that no Information Disclosure Statement is currently of record.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 nonprovisional extension fee (37 CFR 1.17(a)) 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 JUDITH M KAMM whose telephone number is (703)756-4575. The examiner can normally be reached M-F 8:00 am-4:30 pm EST.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/J.M.K./Examiner, Art Unit 1611
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