DETAILED ACTION
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 (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.
Status of the Claims
Claims 15-25 are pending, newly added, and under consideration in this action. Claims 1-14 are cancelled.
Claim Objections
Claim 15 is objected to because of the following informalities: in the last line, “the coats the seed” should be “the diluted composition coats the seed”.
Claim 20 is objected to because of the following informalities: “applying the diluted comprises” should be “applying the diluted composition comprises”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 15, 20, 22, and 23 are 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.
With regards to claim 15, “water or a similar diluting agent” in line 5 renders the claim indefinite because it is unclear what the boundaries of “similar diluting agent” are. It is unclear in what way (e.g., structurally or functionally) and to what degree of similarity to water a diluting agent must be to be considered a “similar diluting agent”. Thus, it is unclear what diluting agents are and are not encompassed by the claim.
With regards to claim 20, it appears that the step of “storing and transporting” the seed is a distinct, additional step after topically applying the diluted composition to the seed, not a component or further narrowing or defining of the “topically applying” step as it implies as currently written. Thus, for better clarity, it is suggested that the limitation be recited as an additional step of the method itself (e.g., “The method according to claim 15, further comprising storing and transporting…” or the like).
With regards to claim 22, as currently written, the term “including” after “citrus fruit plant extract” renders the claim indefinite as to whether the specific citrus fruits listed after “including” are merely exemplary, or are required by the claim.
With regards to claim 23, the claim as currently written is indefinite because it appears that the claim is intending to mean that the at least one organic acid is one from those recited in the Markush group as the group recites specific organic acids, but as currently written, it appears to indicate that the specifically recited organic acids listed in the Markush group is the source of the at least one organic acid, thus rendering the scope of the claim unclear.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 15-17, 19, and 22-25 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Westhuizen et al. (Westhuizen) (US 2020/0146287 A1; published May 14, 2020).
With regards to Claims 15-17 and 23-25, Westhuizen discloses a flavonoid combination solution, and the application of the flavonoid combination solution to enhance plant growth development, such as seed germination (para.0140).
The flavonoid combination solution comprises a first flavonoid mixture, a second flavonoid mixture, and a palm oil blend (para.0005-0006). Westhuizen discloses manufacturing the flavonoid combination solution by preparing a first solution including at least one first plant extract, a first fatty acid, and a first carboxylic acid; preparing a second solution including at least one second plant extract, a second fatty acid, and a second carboxylic acid; and mixing the first solution and the second solution to obtain the flavonoid combination; wherein the at least one first plant extract and the at least one second plant extract include at least one of flavones, flavonols, flavanones, and a derivative thereof (reading on bioflavonoid obtained as a natural plant extract) (para.0017; 0080-0082).
Preferably, at least one of the first solution and the second solution further includes vitamin C (ascorbic acid, reading on organic acid).
Among the preferred first carboxylic acid and the second carboxylic acid is malic acid (reading on organic acid) (para.0030).
The second solution includes Plant Extract groups B, which include saponins (reading on naturally extracted saponin; wetting agent obtained as a natural plant extract) (para.0079).
In some embodiments, the flavonoid combination solution is further diluted to a predetermined concentration, e.g., 0.5 ml of the concentrated solution added with 1L of water (reading on diluted to 500 ppm by adding water), before application (para.0152).
The flavonoid combination solution is sprayed or coated onto seeds of the plant prior to planting. Trial results showed an increase in seed germination rate with application of the seed coating solution (para.0035, 0151, 0159; Fig. 3).
With regards to Claim 19, the flavonoid combinations solution is a water-based liquid solution (para.0122).
With regards to Claim 22, the 1st group of first plant extract includes a high concentration of flavones and flavanones, such as hesperidin. The extract may be extracted from the skin of citrus, including bitter orange, Seville orange, sour orange, biggarade orange, marmalade orange, or any combination thereof (para.0107, 0109).
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.
Claims 15-19 and 21-25 are rejected under 35 U.S.C. 103 as being unpatentable over Westhuizen et al. (Westhuizen) (US 2020/0146287 A1; published May 14, 2020) and Ripley (WO 2014/122446 A1; published Aug. 14, 2014).
The teachings of Westhuizen as they apply to Claims 15-17, 19, and 22-25 are set forth above and incorporated herein. Additional relevant teachings of Westhuizen are set forth herein below.
With regards to Claim 21, Westhuizen’s Figure 1C exemplifies the process of the manufacturing and the amounts of the components in the flavonoid combination solution:
Tank 1:
15-18 wt.% Plant Extract Group A (includes bioflavonoids (para.0069))
70-82 wt.% fatty acids
12-16 wt.% carboxylic acids (includes organic acids (para.0072))
Tank 2:
7-10 wt.% Plan Extract Group B (includes saponins (para.0080))
7-10 wt.% Plant Extract Group C (includes bioflavonoids (para.0081))
30-38 wt.% Plant Extract Group D (includes bioflavonoids (para.0082))
15-20 wt.% fatty acids
22-26 wt.% carboxylic acids (includes organic acids, such as malic acid (para.0084))
2.5-3.5 wt.% fatty acids, esters, and/or antioxidants (e.g., vitamin C (para.0088))
Tank 1 and Tank 2 are mixed in a weight ratio of 1:5-1:6
In the mixture of Tank 1+Tank 2: in the case that the mixture is 1:5 (600 units)
At least one bioflavonoids: (15-18 units) : (185-240 units) = 200-258 units = about 33-43 wt.% of mixture of Tanks 1+2
At least one organic acid: (12-16 units) : (123-150 units) = 135-166 units = about 23-28 wt.% of mixture of Tanks 1+2
At least one wetting agent: 0 units : (35-50 units) = 35-50 units = about 6-8 wt.% of mixture of Tanks 1+2
Mixture of Tank 1+Tank 2 is mixed with palm oil blend in a weight ratio of 80 wt.%:20 wt.% to form the final flavonoid combination solution
At least one bioflavonoid: about 26-34 wt.% of flavonoid combination solution
At least one organic acid: about 18-22 wt.% of flavonoid combination solution
At least one wetting agent: about 5-6 wt.% of flavonoid combination solution
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05.
Furthermore, Westhuizen allows for additional inclusion of antioxidants, e.g., vitamin C (i.e., an organic acid) into Tank 1 mix (e.g., in an amount of 25-35 wt.%) (par.0095), and Westhuizen discloses that organic acids are used as solvents and used to help the active ingredient penetrate the cell structure so that active ingredients are able to be absorbed by the plant (par.0075, 0157).
Westhuizen does not appear to explicitly disclose (i) wherein the at least one organic acid is present in an amount as recited in Claim 21, or (ii) wherein the step of forming the composition comprises obtaining the at least one organic acid as a naturally produced organic acid (Claim 18). Ripley is relied upon for these disclosures. The teachings of Ripley are set forth herein below.
Ripley discloses plant protection compositions comprising flavonoids, and their use in agriculture, horticulture, and home gardening (abstract). The compositions can be used to formulate products designed to restore, maintain, or improve healthy plant life, and as a minimum, have an antifungal function (p.2, ln.10-20; p.3, ln.1-5).
Ripley discloses that the plant protection composition also comprises a fruit acid. Such a plant protection composition advantageously provides the combination of antifungal and antimicrobial functions (p.9, ln.15-18). Preferably the fruit acid is citric acid, malic acid, ascorbic acid, or similar. A synergistic effect exists between the flavonoid and the fruit acid to produce superior antibacterial properties in comparison to the presence of the fruit acid alone in an equivalent composition. In particular, a ratio of 1:3 flavonoid:fruit acid gives the best synergistic effects. In particular, ascorbic acid is the preferred fruit acid as it offers good antibacterial effects, has no toxicity issues for food stock consumers, and possesses excellent antioxidant properties (p.9, ln.20-26).
Suitably, the fruit acid may be derived from the same plant as one or more of the flavonoids, e.g., from citrus fruits (p.9, ln.28-34).
With regards to the amounts recited in the instant Claim 21, although Westhuizen does not appear to exemplify an overlapping range for the organic acid component, it would have been obvious to one of ordinary skill in the art before the effective filing date of the instant invention to engage in routine experimentation to determine optimal or workable ranges of the at least one bioflavonoid, at least one organic acid, and at least one wetting agent that produce expected results. Westhuizen allows for additional inclusion of antioxidants, e.g., vitamin C (i.e., ascorbic acid, an organic acid) into Tank 1 mix (e.g., in an amount of 25-35 wt.%) (par.0095), and Westhuizen discloses that organic acids are used as solvents and used to help the active ingredient penetrate the cell structure so that active ingredients are able to be absorbed by the plant (par.0075, 0157). Furthermore, Ripley discloses that a ratio of flavonoid:fruit acid (e.g., ascorbic acid) may be 1:3 to provide synergistic antibacterial properties to the composition. Thus, one of ordinary skill in the art would have found it prima facie obvious and would have been motivated to engage in routine experimentation to determine optimal amount of each ingredient based on the art recognized amounts and adjusting the amount of each based on the type of seeds being coated and their nutritional and/or antimicrobial treatment needs, the state of the seeds being coated, and type of active ingredients the formulation is used with. 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. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955).
With regards to Claim 18, as discussed above, Westhuizen discloses the inclusion of ascorbic acid in their flavonoid combination solution. In light of Ripley’s disclosure that ascorbic acid derived from citrus fruit is known to be used in agricultural formulations for protecting plants, one of ordinary skill in the art would have found it prima facie obvious before the effective filing date to try ascorbic acid (vitamin C) derived from citrus fruit as the antioxidant component of the flavonoid combination solution of the combined teachings of Westhuizen and Ripley. One of ordinary skill in the art would have been motivated with a reasonable expectation of success in doing so as Westhuizen is directed to using components from plant extracts, such as citrus extracts, and both Westhuizen and Ripley are directed to formulations for treatment and protection of agricultural products.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the combined teachings of the prior art references is fairly suggestive of the claimed invention.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Westhuizen et al. (Westhuizen) (US 2020/0146287 A1; published May 14, 2020) and Ripley (WO 2014/122446 A1; published Aug. 14, 2014) as applied to Claims 15-19 and 21-25 set forth above, further in view of Johnson et al. (Johnson) (US 6,156,699; published Dec. 5, 2000).
The teachings of Westhuizen and Ripley and the motivation for their combination as they apply to Claims 15-19, and 21-25 are set forth above and incorporated herein.
Westhuizen does not appear to explicitly disclose wherein the step of topically applying the diluted composition comprises storing and transporting the seed when the coating of the diluted composition has dried. Johnson is relied upon for this disclosure. The teachings of Johnson are set forth herein below.
Johnson discloses a process for coating seeds which comprises applying a mixture comprising the coating formulation then drying the seeds to a point wherein the seeds are substantially separated one from another (abstract; Johnson claim 1). Johnson discloses that after the step of drying the seeds may be further processed or bagged for transport or storage. The drying step generally reduces seed spoilage in storage (col.3, ln.10-18).
With regards to Claim 20, one of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to further combine the teachings of Westhuizen and Ripley with the teachings of Johnson and further dry the coated seeds of the method of the combined teachings of Westhuizen and Ripley discussed above to then store and transport the coated seeds as needed. One of ordinary skill in the art would have been motivated to do so in order to reduce spoilage and extend the shelf-life of the coated seeds, and allow for more flexibility in use of the coated seeds (e.g., in terms of where the seeds can be coated and sent to for planting). One of ordinary skill in the art would have had a reasonable expectation of success in doing so as Johnson establishes that it is conventional for coated seeds to be dried after coating so that they can be stored and transported.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the instant invention, because the combined teachings of the prior art references is fairly suggestive of the claimed invention.
Conclusion
Claims 15-25 are rejected. No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MONICA A. SHIN whose telephone number is (571)272-7138. The examiner can normally be reached Monday-Friday (9:00AM-5:00PM EST).
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/MONICA A SHIN/Primary Examiner, Art Unit 1616
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