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 .
Election/Restriction and Claim Status
Applicant's election with traverse of Invention III in the reply filed on 01/06/2026 is acknowledged. The traversal is on the ground(s) that there is no serious search burden. This is not found persuasive because one or more of the following reasons apply: The inventions have acquired a separate status in the art in view of their different classification; The inventions have acquired a separate status in the art due to their recognized divergent subject matter; The inventions require a different field of search (e.g., searching different classes /subclasses or electronic resources, or employing different search strategies or search queries).
The requirement is still deemed proper and is therefore made FINAL.
Accordingly, claims 1-2 and 6-10 are withdrawn as being directed to a non-elected invention. Claim 3 is amended. Claims 3-5 are examined on the merits herein.
Priority
The instant application filed 08/28/2024, claims foreign priority to CN2024107762207, filed 06/17/2024.
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 5 is 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 5 recites “large and medium trace element fertilizers”. The terms “large” and “medium” are relative terms which render the claim indefinite. The terms “large” and “medium” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Do the terms large and medium refer to the element’s size or its abundance in nature. In the art it appears that large, medium, and trace elements are all distinct classes of fertilizers (Lemandou, 2023; PTO-892). For the sake of compact prosecution the claim will be interpreted as referencing large, medium, and trace element fertilizers as defined by their abundance in nature. According to Lemandou, large elements refer to nitrogen, phosphorus and potassium, medium elements refer to calcium, magnesium and sulfur, and trace elements refer to iron, manganese, zinc, copper, molybdenum, boron and chlorine.
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 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 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Nie, N. (CN 114041411 A, 02/15/2022, PTO-892), hereinafter Nie, in view of Huang, Y., et al. (CN 110537478 B, 10/15/2021, PTO-892), hereinafter Huang, and Wu, M., et al. (CN 116918674 A, 10/24/2023, PTO-892), hereinafter Wu.
Nie discloses a soilless seedling method for garden greening plants (title).
Regarding claim 3: The soilless seedling method utilizes a prefabricating seedling matrix comprising 20-30 parts cotton fiber (abstract; contents of the invention; Examples; claim 1), thereby reading on a seedling-raising matrix cotton.
Regarding claims 4 and 5: A nutrient solution is added to the matrix in step 4 of the method and then periodically supplemented in step 5 (contents of the invention, Examples, claim 1). The nutrient solution is composed of: calcium nitrate 10-15 parts, nitrogen, phosphorus, potassium compound fertilizer 20-30 parts, magnesium sulphate 1 to 5 parts, ethylene diamine tetraacetic acid 1 to 5 parts, manganese sulphate 0.1 to 0.5 parts, water 1000 parts, and bactericide 0.5 to 1 parts (contents of the invention, Examples, claim 4). Thus, the nutrient supplemented matrix of Nie reads on a matrix cotton further comprising a fertilizer (i.e., nutrient solution), wherein the fertilizer comprises large (nitrogen, phosphorus, and potassium), medium (calcium, magnesium, and sulfur), and trace elements (manganese).
The teachings of Nie differ from that of the instantly claimed invention in that Nie does not explicitly teach wherein a walnut green peel fermentation extract is added to the seedling-raising matrix cotton, as recited in claim 3, nor the ratio of said extract to the fertilizer, as recited in claim 5.
Huang discloses a seedling substrate. The seedling matrix comprises walnut green husk fermentation substrate and water-holding substrate; the walnut green husk fermentation substrate is mainly prepared by the following raw materials: walnut green husk, leguminous plant straw, auxiliary fermentation substrate, and composite fermentation microbial inoculum (abstract). The preparation method of the walnut green husk fermentation substrate comprises the following steps: S1, weighing walnut green husk, leguminous plant straw, auxiliary fermentation substrate and composite fermentation microbial inoculum; S2, crushing the walnut green husk, leguminous plant straw and auxiliary fermentation substrate into respectively powder, uniformly mixing, adjusting the water content to obtain the fermentation stack body; S3, adding 1/2 amount of composite fermentation microbial inoculum weighed in S1 in the fermentation stack of step S2; covering the heat preservation film with hole; turning one time every 2 ~ 3 days; fermenting for one time; S4, when the fermentation temperature of step S3 is reduced to 40 ° C, then accessing the remaining composite fermentation microbial inoculum in the fermentation stack, covering the heat preservation film with hole, turning for one time every 2 to 3 days, performing secondary fermentation (Embodiment 1; claim 5), thereby resulting in a walnut green peel fermentation product.
Previous work found that walnut green husk extract as feed additives, can replace the antiviral drug and antibiotic in the feed to inhibit common pathogenic bacteria and virus propagation of livestock and poultry and prevent infectious disease thereby increasing the survival rate of livestock and poultry (background para. 4). The walnut green husk fermentation substrate of Huang provides the needed N, P, and K elements for the growth of the seedling and improves the seedling germination rate. The method of use has a simple operation, shortens the seedling period, and reduces the cost (abstract).
Wu teaches a strawberry seedling substrate comprising walnut green peel extract (abstract; claim 1). The preparation method of the walnut green peel extract comprises taking the waste walnut green peel, adding distilled water according to the material-liquid ratio of 1: 20, ultrasonically extracting for 30 min, refluxing and extracting for 2 h, collecting the extracting solution, filtering, rotary steaming and concentrating to obtain the extract to obtain the walnut green peel extract (content, para. 8; claim 7). The seedling substrate comprises 1-1.5 parts of walnut green peel extract (claim 3). The walnut green peel extract added in the strawberry seedling substrate formulation has the effect of resisting plant diseases, insect pests, and bacteria, which can obviously improve the ability of resisting plant diseases and insect pests of strawberry seedling when being applied to strawberry seedling substrate, so that the survival rate of the seedling is improved (content, para. 21).
It would have been prima facie obvious to one of ordinary skill in the art, prior to the effective filing date of the claimed invention, to add a walnut green peel fermentation product as taught by Huang, specifically in the form of an extract as taught by Wu, into the seedling matrix of Nie since walnut peel fermentation products and extracts are known and routine in the art of seedling matrices. First, one of ordinary skill in the art would have been motivated to select a walnut green peel fermentation product for use in a seedling matrix since walnut peel fermentation substrates are known and effective for improving the germination rate of seedlings within a seedling-raising matrix, as taught by Huang. One of ordinary skill in the art would have been further motivated to incorporate the walnut green peel fermentation product in the form of an extract as instantly claimed, since walnut peel extracts improve the disease resistance and survival of seedlings as taught by Wu. Additionally, an extract has the benefit of being applied to the soilless substrate of Nie in more specific and adjustable amounts compared to the fermentation product of Huang. Thus, one of ordinary skill in the art could have combined the teachings of Nie, Huang, and Wu according to known methods to predictably yield a seedling-raising matrix cotton containing a walnut green peel fermentation extract, wherein the germination rate and disease resistance of the seeds are improved. Furthermore, Nie teaches the inclusion of an unspecified bactericide. Given the teachings of Huang and Wu, a walnut green peel fermentation extract inherently possesses bactericidal properties, meaning one of ordinary skill in the art could have substituted the bactericide of Nie with a walnut green peel fermentation extract, as suggested above, to yield predictable results.
Regarding the weight ratio of the walnut green peel fermentation extract to the fertilizer, Wu teaches adding 1-1.5 parts of walnut green peel extract to the seedling substrate. As best interpreted given the 112(b) issue above, Nie teaches large, medium, and trace element fertilizers to make up a total of 31.1-50.5 parts of the nutrient solution. Nie also teaches the nutrient solution to comprise 0.5 to 1 parts of bactericide, which may comprise the walnut green peel fermentation extract as discussed above. While the prior art does not explicitly teach the instantly claimed ratio (i.e., 1-2:12-20) it is well within the abilities of an ordinary artisan to optimize such a ratio depending on the desired effect of the final product (i.e., fertilization, disease resistance, etc.). As such, one of ordinary skill in the art would have used the amounts taught by Wu and Nie as guidance to arrive at the instantly claimed ratio of extract to fertilizer through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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).
One of ordinary skill in the art would have had a reasonable expectation of success in making the above modification since Nie, Huang, and Wu teach seedling-raising matrices and methods.
Regarding the “method for preparing the walnut green peel fermentation extract”, such a recitation is a product-by-process limitation. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). In the instant case, Huang teaches a fermentation method and Wu teaches an extraction method for walnut green peels. Both products are used to improve seedling matrices, and as discussed above, it would have been obvious to combine the two to provide a walnut green peel fermentation extract that could be added to the seedling matrix of Nie. The instant claims nor the instant specification identify specific active compounds that result from the claimed preparation method. As such, it is believed that the walnut green peel fermentation extract produced by the fermentation method of Huang and the extraction method of Wu would result in a fermentation extract which is the same or similar to that which is claimed, despite being produced by slightly different methods. In such a situation the burden shifts to applicant to come forward with evidence establishing an nonobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 799, 803, 218 USPQ 289, 292-33 (Fed. Cir. 1983)
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Nie, N. (CN 114041411 A, 02/15/2022, PTO-892), hereinafter Nie, in view of Fu, H., et al. (CN 115226734 A, 10/25/2022, PTO-892), hereinafter Fu.
Nie discloses a soilless seedling method for garden greening plants (title).
Regarding claim 3: The soilless seedling method utilizes a prefabricating seedling matrix comprising 20-30 parts cotton fiber (abstract; contents of the invention; Examples; claim 1), thereby reading on a seedling-raising matrix cotton.
Regarding claims 4 and 5: A nutrient solution is added to the matrix in step 4 of the method and then periodically supplemented in step 5 (contents of the invention, Examples, claim 1). The nutrient solution is composed of: calcium nitrate 10-15 parts, nitrogen, phosphorus, potassium compound fertilizer 20-30 parts, magnesium sulphate 1 to 5 parts, ethylene diamine tetraacetic acid 1 to 5 parts, manganese sulphate 0.1 to 0.5 parts, water 1000 parts, and bactericide 0.5 to 1 parts (contents of the invention, Examples, claim 4). Thus, the nutrient supplemented matrix of Nie reads on a matrix cotton further comprising a fertilizer (i.e., nutrient solution), wherein the fertilizer comprises large (nitrogen, phosphorus, and potassium), medium (calcium, magnesium, and sulfur), and trace elements (manganese).
The teachings of Nie differ from that of the instantly claimed invention in that Nie does not explicitly teach wherein a walnut green peel fermentation extract is added to the seedling-raising matrix cotton, as recited in claim 3, nor the ratio of said extract to the fertilizer, as recited in claim 5.
Fu discloses a walnut green husk and sedum damici composite agricultural ferment composition comprising 250-350 parts of ferment raw liquid among other ingredients (abstract). The ferment raw liquid is obtained by extracting walnut green peel and sedum damate. It is then mixed with a fermentation microbial inoculum, sealed and fermented to obtain a fermentation product (Embodiments), thereby resulting in a fermentation product which reads on the instantly claimed walnut green peel fermentation extract. The composite agricultural ferment composition has good bacteriostatic and insecticidal effect, it can be used as a plant protective agent such as pesticide or bacteriostat (abstract). In recent years, a large number of research shows that: walnut green husk contains chemical substances with biological activity to insects, which can be used for preventing and treating agricultural pests. Research also shows that the walnut green tangerine peel contains active substance for inhibiting fungi, such as walnut quinone, walnut 5-hydroxy-2-methoxy-4-naphthoquinone, beta-sitosterol and so on. These active substances are mainly used for protecting the effect of fungi, capable of inhibiting hypha growth and spore germination. Further research shows that the walnut green peel contains active substance for inhibiting viruses. Active substances such as juglone in walnut green husk also have the function of inhibiting the growth of some plants. Therefore, walnut green husk can be used as plant source pesticide, bactericide, herbicide for development and utilization (background, para. 1).
It would have been prima facie obvious to one of ordinary skill in the art, prior to the effective filing date of the claimed invention, to add the walnut green peel fermentation extract of Fu to the seedling matrix of Nie since walnut green peel fermentation extracts are known and routine in the art of plant protection. One of ordinary skill in the art would have been motivated to add the walnut green peel fermentation extract of Fu into the seedling matrix of Nie since the product of Fu and walnut green husks in general have good bacteriostatic and insecticidal effect. Furthermore, Nie teaches the addition of a bactericide into the seedling matrix. Thus, one of ordinary skill in the art could have used the walnut green peel fermentation extract of Fu as the bactericide of Nie, though simple substitution of one known bactericide for another to yield predictable results.
Regarding the weight ratio of the walnut green peel fermentation extract to the fertilizer, as best interpreted given the 112(b) issue above, Nie teaches the large, medium, and trace element fertilizers to make up a total of 31.1-50.5 parts of the nutrient solution. Nie also teaches the nutrient solution to comprise 0.5 to 1 parts of bactericide, which may comprise the walnut green peel fermentation extract as discussed above. While the prior art does not explicitly teach the instantly claimed ratio (i.e., 1-2:12-20) it is well within the abilities of an ordinary artisan to optimize such a ratio depending on the desired effect of the final product (i.e., fertilization, disease resistance, etc.). As such, one of ordinary skill in the art would have used the amounts taught by Nie as guidance to arrive at the instantly claimed ratio of extract to fertilizer through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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).
One of ordinary skill in the art would have a reasonable expectation of success in making the above modifications since Nie teaches a seedling matrix for nurturing and protecting seed during germination while Fu teaches plant protection methods.
Regarding the “method for preparing the walnut green peel fermentation extract”, such a recitation is a product-by-process limitation. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). In the instant case, Fu teaches extracting and fermenting walnut green peels. The instant claims nor the instant specification identify specific active compounds that result from the claimed preparation method. As such, it is believed that the walnut green peel fermentation extract produced by the fermentation and extraction method of Fu would result in a fermentation extract which is the same or similar to that which is claimed, despite being produced by slightly different methods. In such a situation the burden shifts to applicant to come forward with evidence establishing an nonobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 799, 803, 218 USPQ 289, 292-33 (Fed. Cir. 1983)
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUSANNAH S ARMSTRONG whose telephone number is (571)272-0112. The examiner can normally be reached Mon-Fri 7:30-5 (Flex).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at (571)272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SUSANNAH S ARMSTRONG/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616