BDETAILED 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
Applicant’s election of the method of Claims 18-24 and 27-36 in the reply filed on 6 August 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Status of the Claims
Claims 18-36 are pending.
Claims 25 and 26 are withdrawn from consideration as being directed to non-elected inventions.
Claims 18-24 and 27-36 are presented for examination and rejected as set forth in greater detail below.
Priority
The instant application claims the benefit of provisional U.S. application 63/471,918 filed 8 June 2023.
Claim Interpretation
Applicants Claims are directed to methods of growing plants in the presence of microscale plant cell wall polysaccharides. The Examiner notes that given the broadest reasonable interpretation of the language of the claims, any microscale polysaccharide found in a plant cell wall will address this claim, regardless of whether the polysaccharide is obtained from an actual plant cell wall. The patentability of a product used in a process does not depend on its method of production. If the product claimed is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was obtained by a different process. In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Dependent claims 19-24and 30-36 narrow the size of the particulates, or specify the polysaccharides to be found in the particles. Claim 27 requires a plant be treated with an aqueous solution of polysaccharides. Claims 28 and 29 define particular concentrations of polysaccharide in aqueous solution.
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 18-24 and 28-36 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because while putatively directed to a method, no actual physical steps are recited by the claims.
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.
Claims 18-24 and 28-36 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential steps, such omission amounting to a gap between the steps. See MPEP § 2172.01. The omitted steps are any recitation or identification of physical steps a person skilled in the art must perform in order to practice the method of plant growth claimed.
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 should 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.
Claims 18-24, 30, 31, 33, and 35 are rejected under 35 U.S.C. 103 as being unpatentable over Fang (CN106588372)(Machine translation provided; all references are to the machine translation).
Fang describes fertilizer compositions containing nitrogen, potassium, and phosphorous elements recited by Claim 35 in compositions containing 2-4 parts modified grass carbon, which Fang indicates containing nanocellulose “whiskers,” which the examiner considers equivalent to the presently claimed cellulose nanofibers, addressing limitations of Claims 19-23 and 30. (Pg.1). Fang indicates that these cellulose nanofibers promote growth of the plant root system, improve plant yield of excellent quality plants by, among others, increasing soil water retention and provide the nitrogen, phosphorous, and potassium elements required for plant growth and development throughout the plant lifecycle. (Pg.2). While not explicitly reciting the use of these fertilizers in treating plant growth recited by the present claims, by explaining that these nanocellulose fiber compositions promote various improvements in plant growth and development, a method of using these compositions by the application of them to either plants or the soil in which plants are growing is reasonably implied, addressing the method of the instant claims. Fang indicates that in some embodiments, nanocrystalline cellulose is combined with the nanocrystalline fibers and additional components to provide a nanocellulose fiber composition containing crystalline cellulose required by Claim 31. (Pg.3). As nothing Fang indicates these nanocellulose whiskers/.fibers are crystalline, the limitations of Claims 24 and 33 are addressed.
Claims 18-24 and 30-35 are rejected under 35 U.S.C. 103 as being unpatentable over Fang as applied to claims 18-24, 30, 31, 33, and 35 above, and further in view of Martin (WO2015/074120).
Fang, discussed in greater detail above, describes cellulose nanofibers used to deliver fertilizer and promote various aspects of plant growth. Fang does not, however, describe particular dimensions of the cellulose nanofibers, nor is any description of a particular degree to which cellulose used in these compositions is non-crystalline.
This is cured by the teachings of Martin, which describes the production of nanocellulose from plant materials. (Abs.). Martin indicates that each of the shape, length, and diameter of nanocelluloses can be adjusted as needed on the basis of the plant material from whit it is obtained, as well as any pre-treatment and degradation processes used. [00100]. Cellulose nanocrystals, whisker shaped particles similar to those described by Fang, are also referred to a nanocrystalline cellulose, cellulose whiskers, have lengths of between 50-500nm, overlapping and therefore rendering obvious the limitations of Claim 32, are 100% cellulose, and possess non-crystalline portions of between 22-56%, overlapping and therefore rendering obvious the limitations of Claims 33 and 34. [00137]. See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (“A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.”).
It would have been prima facie obvious to have used the nanocrystalline cellulose of Martin as the source of nanocrystalline cellulose of Fang, because Fang describes incorporating nanocrystalline cellulose into their fertilizers, and Martin describes production of nanocrystalline cellulose. The selection of Martin’s nanocrystalline cellulose appears little more than the predictable use of prior art elements according to their established functions, and prima facie obvious thereby. KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976)); see also Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)(it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use).
Claims 1-24 and 27-36 are rejected under 35 U.S.C. 103 as being unpatentable over Fang and Martin as applied to claims 18-24 and 30-35 above, and further in view of Zhang (CN111040772)(Machine translation provided; all references are to the machine translation).
Fang and Martin, discussed in greater detail above, suggests cellulose nanofibers of defined crystallinity and length used to deliver fertilizer and promote various aspects of plant growth. Neither Fang nor Martin describe using hydrated cellulose, or applying the composition as an aqueous solution.
This is cured by Zhang, which also describes cellulosic soil amending compositions for use in augmenting soil moisture, fertilizer, pesticide, and nutrient conditions. (Pg.2). Zhang describes these compositions as being suspended in water, which would necessarily result in the hydrated cellulose recited by Claim 36. (Pg.2-3). Zhang indicates that by combining the cellulosic water-retaining compositions with soil in addition to water, fertility of the soil is improved while reducing the hardness of the soil. (Pg.10). While not specifying the concentrations recited by Claims 28 and 29, Zhang describes each of the cellulosic component as providing desirable properties to the compositions into which they are incorporated. On this basis, a person of ordinary skill in the art would reasonably conclude that the amounts of each are result-effective variables that achieve the results each of the components referred to provide. As such, it would have been routine to optimize the concentration of cellulose in the soil augmenting solutions within the total composition suggested by Zhang. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (indicating that where 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.).
It would have been prima facie obvious to have combined the cellulosic soil adjuvants of Fang and Martin with water in the manner described by Zhang, and then incorporated these aqueous compositions to soil to promote improved plant growth. This is because each of Fang, Martin, and Zhang describe methods of utilizing cellulosic compositions as soil adjuvants to promote improved plant growth; combining their teachings to arrive at the presently claimed subject matter appears little more than an arrangement of old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976)). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious,” the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.).
Conclusion
No Claims are allowable.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SEAN M BASQUILL whose telephone number is (571)270-5862. The examiner can normally be reached Monday through Thursday, 5:30 AM to 4 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at (571) 272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SEAN M BASQUILL/Primary Examiner, Art Unit 1614
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