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 .
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 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.
DETAILED ACTION
Claims 1-20 are pending in this application. This application is a continuation of PCT/US23/60347, filled on 01/10/2023, which claims priority to provisional application 63/304,038, filed on 01/28/2022 and to provisional application 63/266,607, filed on 01/10/2022.
Election/Restrictions
Applicants’ election without traverse of Group II, claims 9-14, filed on 06/22/2026 is acknowledged.
Claims 1-8 and 15-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group or species, there being no allowable generic or linking claim.
Claims 9-14 will presently be examined to the extent they read on the elected subject matter of record.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of the second paragraph 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.
Claim 11 is rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
The recitation of "quillaja extract xanthan gum" renders the claim indefinite. Quillaja extract and xanthan gum are two different substances. One of ordinary skill could not ascertain and interpret the metes and bounds of the patent protection desired as to these terms. Thus, it is unclear and indefinite as to how the “quillaja extract xanthan gum”, herein is encompassed.
To expedite the prosecution "quillaja extract xanthan gum" is given its broadest reasonable interpretations by the examiner in light of the specification in the 102 and 103 rejections as “quillaja extract or xanthan gum”.
Claims 13 and 14 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 applicant regards as the invention.
The recitation of “seed performance additive comprises: a. from about 35% to about 55% by weight of vitamin E; b. from about 17% to about 27% by weight of vitamin B1; c. from about 3.0% to about 11% by weight of vitamin C; and d. from about 7.0% to about 11% by weight of glutathione" in claim 13 and the recitation of “the seed performance additive comprises: a. from about 35% to about 55% by weight of vitamin E; b. from about 17% to about 27% by weight of vitamin B1; c. from about 7.0% to about 11% by weight of glutathione; and d. from about 41% to about 38% by weight of the potassium humate or the flavanone glycoside hesperidin” in claim 14 render the claims indefinite. The base of weight percentages of the components is not recited as being based on the total weight of the claimed composition or based on the seed performance additive, i.e., a portion of the claimed composition. Thus, it is unclear and indefinite as to how the weight percentages herein are encompassed.
To expedite the prosecution claims 13 and 14 are given their broadest reasonable interpretations by the examiner in light of the specification in the 102 and 103 rejections as based on the total weight of the four components.
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 9-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kellar et al. (US 2019/0029262 A1).
Kellar et al. meet all of the limitations of claims 9-11. Kellar et al. disclose dried inoculant compositions for coating plant seed (paragraph 307 and claims 7 and 8) comprising
one or more oxidation control components including ascorbic acid and/or glutathione (the claimed additive in the instant claims 9 and 10) (paragraph 130),
one or more hygroscopic polymers including xantham gum (the claimed lubricant in the instant claims 9-11) (paragraph 135); and
nutrients including vitamin B1 (paragraph 193).
The optional limitations are not required limitations.
Kellar et al. meet all of the limitations of claim 12. Kellar et al. disclose the composition comprising 95% by weight of hygroscopic polymers (paragraph 154) and 5% by weight of oxidation control components (paragraph 151).
Kellar et al. meet all of the limitations of claim 13. Kellar et al. disclose the composition comprising 2.5% by weight of vitamin E nutrient (paragraph 193 and 195), 1.25% by weight of vitamin B1 nutrient (paragraph 193 and 195), 0.5% by weight of ascorbic acid oxidation control component, and 0.5% by weight of glutathione oxidation control component (paragraph 130 and 151). The weight percentages of vitamin E, vitamin B1, ascorbic acid, and glutathione relative to the total of vitamin E+ vitamin B1 + ascorbic acid + glutathione are calculated to be 52.6% (2.5/(2.5+1.25+0.5+0.5)=52.6%), 26.3% (1.25/(2.5+1.25+0.5+0.5)=26.3%), and 10.5% (0.5/(2.5+1.25+0.5+0.5)=10.5%), 10.5% (0.5/(2.5+1.25+0.5+0.5)=10.5%), respectively.
Kellar et al. meet all of the limitations of claim 14. Kellar et al. disclose the composition comprising 2% by weight of vitamin E nutrient (paragraph 193 and 195), 1% by weight of vitamin B1 nutrient (paragraph 193 and 195), 0.5% by weight of glutathione oxidation control component (paragraph 130 and 151), and 2% by weight of potassium humate biostimulant (paragraph 187 and 188). The weight percentages of vitamin E, vitamin B1, glutathione, and potassium humate relative to the total of vitamin E + vitamin B1 + glutathione + potassium humate are calculated to be 35.1% (2/(2+1+0.5+2.2)=9.1%), 17.5% (1/(2+1+0.5+2.2)=18.2%), 8.8% (0.5/(2+1+0.5+2.2)=36.4%), and 38.6% (2/(2.2+1+0.5+2.2)=10.5%), respectively.
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.
This application currently names joint inventors. In considering patentability of the claims under 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of 35 U.S.C. 103(c) and potential 35 U.S.C. 102(e), (f) or (g) prior art under 35 U.S.C. 103(a).
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) 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.
Claims 9-14 are rejected under 35 U.S.C. 103(a) as being unpatentable over Kellar et al. (US 2019/0029262 A1).
The reference of Kellar et al. is described in detail above and that discussion is hereby incorporated by reference. It is recognized that the teachings of Kellar et al. were deemed to anticipate the claims in the preceding ground of rejection. The instant ground of rejection applies an alternative interpretation of the composition taught by Kellar et al., which alternative interpretation is in expectation of an argument that applicant could make regarding whether Kellar et al. disclose the embodiments in the instant claims 12-14, i.e. that the disclosure of Kellar et al. is not explicit enough to support an anticipation determination with regard to the claimed embodiments. The Examiner does not agree with such a view, but nonetheless, this alternative ground of rejection is set forth to provide an alternative rationale as to pick and choose teachings in Kellar et al., even if they do not anticipate the claimed invention, nonetheless provide ample disclosure, suggestion and motivation for one of ordinary skill in the art to have arrived at the claimed invention.
Although Kellar et al. do not teach an embodiment having the components and their weight percentages recited in the instant claims, it would have been prima facie obvious before the effective filing date of the claimed invention to a person of ordinary skill in the art to combine the teachings as a whole to arrive at the components and their weight percentages recited in the instant claims. It is well-established that consideration of a reference is not limited to the preferred embodiments or working examples, but extends to the entire disclosure for what it fairly teaches, when viewed in light of the submitted knowledge in the art, to a person of ordinary skill in the art. Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742. Please refer to MPEP 2141 I.:
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG YU whose telephone number is (571)270-1328. The examiner can normally be reached on 9 am - 5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached on 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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/HONG YU/
Primary Examiner, Art Unit 1614
Prosecution Insights