AlsoDetailed 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 .
Status of Claims
Claims 11-30 are pending.
Priority
The instant application claims priority as follows:
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Information Disclosure Statement
All references from the IDS(s) received 09/03/2024 and 02/04/2026 have been considered unless marked with a strikethrough. A signed copy of form 1449 is enclosed herewith.
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.
The Supreme Court in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper "functional approach" to the determination of obviousness as laid down in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966). See MPEP 2143.
The Supreme Court in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness which are consistent with the proper "functional approach" to the determination of obviousness as laid down in Graham. See MPEP 2143.
Examples of rationales that may support a conclusion of obviousness include:
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way;
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art;
(G) Some teaching, suggestion, or motivation (TSM) in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention.
First Rejection under 35 USC § 103
Claims 11-19, 21-28 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Taganov et al. (US-20190345075-A1; published on 14 Nov 2019) in view of Gianessi et al.
Brief Discussion of the Cited References
Taganov et al. teach, among other aspects of the claimed invention, applying a composition comprising fulvic acid and poly-metallic humates (CPFAPH) to a plant. See “Application of the Fertilizer” starting at paragraph [0038]. With regard to applying herbicide and CPFAPH together, Taganov et al. teach that the “use of the fertilizer disclosed herein [comprising CPFAPH] can decrease the amount of mineral fertilizers, fungicides, herbicides and insecticides typically necessary to promote plant growth by about 25%.” See paragraph [0043].
Gianessi et al. teach that “The vast majority of crop hectares in the United States are treated with chemical herbicides annually. The adoption of herbicides for weed control was rapid in the 1950s and 1960s. Herbicides replaced the use of millions of workers to pull and hoe weeds by hand and greatly reduced the use of tillage for weed control. Costs of production were reduced and crop yields increased because herbicides were cheaper and more effective than hand weeding and cultivation. Organic crop growers cite weed control as their greatest difficulty in crop production because they are not permitted the use of chemical herbicides. They substitute hand weeding and cultivation for herbicides at a greatly increased cost and with reduced effectiveness. Aggregate studies that estimate the value of herbicides assume that growers would substitute a certain amount of hand weeding and tillage if chemicals were not used, which would not be sufficient to prevent yield losses totaling about 20% of U.S. crop production.” See abstract.
Comparison Between the Claimed Invention and the Prior Art
With respect to claims 11, 22, 23, 24, and 30, Taganov et al. teach, among other aspects of the claimed invention, applying a composition comprising fulvic acid and poly-metallic humates (CPFAPH) to a plant. See “Application of the Fertilizer” starting at paragraph [0038].
With respect to claims 12 and 25, Taganov et al. teach “a growth enhancing component present in the amount of from about 80% to about 90% by weight, based on a total weight of the fertilizer; a plurality of elements present in the amount of from about 3% to about 7% by weight, based on the total weight of the fertilizer; and one or more secondary nutrients, micronutrients, and biologically active heteromolecular trace-metal complexes present in the amount of from about 3% to about 10% by weight, based on the total weight of the fertilizer.” See claim 1 from Taganov et al.
With respect to claims 13 and 26, Taganov et al. teach macro nutrients (such as, nitrogen (N), phosphorous (P), and potassium (K) compounds) present in an amount of from about 3% to about 7% by weight, based on a total weight of the fertilizer. See paragraph [0017].
With respect to claim 14, Taganov et al. teach “secondary nutrients (such as, calcium (Ca), magnesium (Mg), and sulfur (S)).” See paragraph [0017].
With respect to claim 15, Taganov et al. teach “micro nutrients (such as, zinc (Zn), copper (Cu), manganese (Mn), iron (Fe), and copper (Cu)).” See paragraph [0017].
With respect to claim 16, Taganov et al. teach “biologically active heteromolecular trace-metal complexes.” See paragraph [0006].
With respect to claim 17, Taganov et al. teach “trace-metals including, but not limited to, molybdenum (Mo), vanadium (V), cobalt (Co), and nickel (Ni).” See paragraph [0017].
With respect to claim 18, Taganov et al. teach “trace-metals including, but not limited to, molybdenum (Mo), vanadium (V), cobalt (Co), and nickel (Ni).” See paragraph [0017].
With respect to claim 19, Taganov et al. teach “cotton, sunflower, corn, wheat, rye, oats, millet, sorghum, rice and soybeans.” See paragraph [0042].
With respect to claim 21, Taganov et al. teach “cotton, sunflower, corn, wheat, rye, oats, millet, sorghum, rice and soybeans.” See paragraph [0042].
With respect to claim 27, Taganov et al. teach “secondary nutrients (such as, calcium (Ca), magnesium (Mg), and sulfur (S))” and “micro nutrients (such as, zinc (Zn), copper (Cu), manganese (Mn), iron (Fe), and copper (Cu)).” See paragraph [0017].
With respect to claim 28, Taganov et al. teach “The biologically active catalytic trace-metals can be present in an amount of from about 1% to about 3% by weight, based on the total weight of the fertilizer.” See paragraph [0017].
Differences between the Claimed Invention and the Prior Art
Although Taganov et al. teach the benefits of applying herbicide and CPFAPH together, no cited reference expressly teaches a working embodiment in which an herbicide and CPFAPH are applied together.
Conclusion of Obviousness
With respect to claims 11-19, 21-28 and 30, applying KSR rationale (G) outlined above, it would have been prima facie obvious to apply an herbicide and CPFAPH together to arrive at the claimed invention. Taganov et al. teach applying a composition comprising fulvic acid and poly-metallic humates to a plant. Gianessi et al. teach that applying herbicide results in reduced production costs increased crop yields. Additionally, Taganov et al. teach that applying an herbicide and CPFAPH together can decrease the amount of herbicide necessary to promote plant growth by about 25%. As such, Gianessi et al. and Taganov et al. provide motivation to apply herbicide and CPFAPH together. Moreover, Gianessi et al. and Taganov et al. provide a reasonable expectation that applying an herbicide and CPFAPH together can decrease the amount of herbicides necessary to promote plant growth.
Applying the herbicide and CPFAPH together, would necessarily result in “reducing herbicide stress to a plant” (claim 11), reducing herbicide stress where “herbicide stress is oxidative stress” (claim 22), “increasing biomass of a plant” (claim 23), “increas[ing] a root content of the plant” (claim 24), and “reducing oxidative stress to a plant” (claim 30).
“Under the principles of inherency, if a prior art [composition], in its normal and usual operation, would necessarily perform the method claimed, then the method claimed will be considered to be anticipated by the prior art [composition]. When the prior art [composition] is the same as a [composition] described in the specification for carrying out the claimed method, it can be assumed the [composition] will inherently perform the claimed process. In re King, 801 F.2d 1324, 231 USPQ 136 (Fed. Cir. 1986)” See MPEP at 2112.02. See also Ex parte Novitski, 26 USPQ2d 1389 (Bd. Pat. App. & Inter. 1993) (The Board rejected a claim directed to a method for protecting a plant from plant pathogenic nematodes by inoculating the plant with a nematode inhibiting strain of P. cepacia. A U.S. patent to Dart disclosed inoculation using P. cepacia type Wisconsin 526 bacteria for protecting the plant from fungal disease. Dart was silent as to nematode inhibition but the Board concluded that nematode inhibition was an inherent property of the bacteria. The Board noted that applicant had stated in the specification that Wisconsin 526 possesses an 18% nematode inhibition rating.).
Therefore, the claimed invention was obvious at the time of filing.
Second Rejection under 35 USC § 103
Claims 20 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Taganov et al. (US-20190345075-A1; published on 14 Nov 2019) in view of Gianessi et al., as applied above, and further in view of Cui et al., (Science of the Total Environment 616-617 (2018) 1612-1619). The discussions related to teachings of Taganov et al. and Gianessi et al., as well as arguments related to inherency, made in the preceding rejection are incorporated by reference herein.
Comparison Between the Claimed Invention and the Prior Art
With respect to claims 20 and 29, Cui et al. teach fomesafen as an herbicide and teach the microbial degradation of fomesafen and detoxification of fomesafen-contaminated soil.
Differences between the Claimed Invention and the Prior Art
Although Taganov et al. teach the benefits of applying herbicide and CPFAPH together, no cited reference expressly teaches a working embodiment in which fomesafen and CPFAPH are applied together.
Conclusion of Obviousness
With respect to claims 20 and 29, applying KSR rationale (G) outlined above, in view that fomesafen is a well-known herbicide, it would have been prima facie obvious to select fomesafen as the herbicide to arrive at the claimed invention. Cui, et al. teach the microbial degradation of fomesafen and detoxification of fomesafen-contaminated soil, which is a desirable feature and would have motivated one of ordinary skill in the art to select fomesafen as the herbicide. As such, fomesafen provides a predictable solution, the use of which results in a reasonable expectation of success. Therefore, the claimed invention was obvious at the time of filing.
Conclusion
No claim is currently allowable.
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/BSM/Examiner, Art Unit 1621
/CLINTON A BROOKS/Supervisory Patent Examiner, Art Unit 1621
