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 .
DETAILED ACTION
1. Claims 1-9 are pending in the current application.
2. This application is a DIV of 16/570,677 09/13/2019 ABN; 16/570,677 has PRO 62/733,452 09/19/2018.
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 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.
3. Claim 1-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over EPA registration sheet for the X-PAND plant growth regulator solution product: Online “https://www3.epa.gov/pesticides/chem_search/ppls/057538-00063-20170925.pdf” Registered September 25, 2017 AND MSDS for Falgro 2XLV dated 10/18/2016, Online: “http://deccous.com/wp-content/uploads/2018/08/Falgro-2XLV-SDS.pdf”, Accessed August 18, 2020 and further in view of Matthew “Pasture response to gibberellins: a review and recommendations” New Zealand Journal of Agricultural Research, 2009, Vol. 52: 213-225 and Release LC Plant Growth Regulator Solution, Safety Data Sheet, February 16, 2016. 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 are summarized as follows:
A) Determining the scope and contents of the prior art.
B) Ascertaining the differences between the prior art and the claims at issue.
C) Resolving the level of ordinary skill in the pertinent art.
D) Considering objective evidence present in the application indicating obviousness or nonobviousness.
A) Determining the scope and contents of the prior art:
The prior art products Falgro 2XLV and X-PAND have gibberellic acid in isopropanol at concentrations of 6.15% and 12% respectively.
The EPA registration sheet for the X-PAND plant growth regulator solution product: Online “https://www3.epa.gov/pesticides/chem_search/ppls/057538-00063-20170925.pdf” Registered September 25, 2017. The material is listed as a solution with 12% GA3 and 88% carrier. As an evidentiary reference regarding the identity of the carrier the examiner submits:
The “X-Pand Plant Growth Regulator Solution” product inset sheet from StollerUSA.com Online: “https://stollerusa.com/wp-content/uploads/2020/02/X-Pand-Product-Sheet.pdf” Accessed: August 18, 2020. This sheet which is listed as corresponding to the USA EPA Reg. No. 57538-63 above states, “X-Pand is an organic plant growth regulator which has been registered with the United States EPA. X-Pand is a pure gibberellic acid dissolved in isopropanol. It is primarily used for the increase in the sizing of cells within the plant tissue. This will cause a plant to have increased size in all plant parts.” It was at least available for sale on February 22, 2018 listed by the OMRI on page 168, Online: “https://pdfslide.net/documents/crop-products-humic-acids-alkali-extracted-crop-products-.html” accessed August 18, 2020.
FALGRO comprises 6.15% Gibberellic acid (GA3) and 24.45% isopropanol.
B) Ascertaining the differences between the prior art and the claims at issue.
No explicit description of how the gibberellic acid solution was made in the prior art is given. No solution containing greater than 12% is described. No description of the temperature at which the solution was made was given.
C) Resolving the level of ordinary skill in the pertinent art: The level of ordinary skill is variable. Someone preparing these solutions could be a crop scientist or just an everyday agricultural worker in the field.
D) Considering objective evidence present in the application indicating obviousness or nonobviousness: One could not make the solution of the prior art without dissolving the compound in the isopropanol. One of ordinary skill would be motivated to make a solution of gibberellic acid (GA3) of between 5 wt% and 15 wt% with GA3 isopropanol because he or she would need them to aid in a correct application of the material in the field. As discussed in Matthew, “When evaluating gibberellin as a potential pasture production stimulant, historical investigations frequently used rates ranging from 25-700 g/ha of active ingredient.... and emerging understanding that application rates as low as 5-10 g/ha active ingredient can produce more cost-effective responses, possibly with reduced side effects,” As discussed on page 214 the rate of application depends upon plant type, time of year and other factors. Other plants like banana, or grapes require different amounts per plant or acreage. It is within the skill of the ordinary artisan to take a technical grade of gibberellic acid and make whatever concentration needed in a stock isopropanol solution to meet the needs of his or her particular crop or spraying equipment. Pure or technical grade GA3 powder can be purchased to make whatever concentration is desired. Other companies sell 4.44% GA3 in 95,26% isopropanol (See Release LC MSDS, 2016). For example one farmer may have a small sprayer and need a more concentrated stock solution or he may require a less concentrated solution. Based upon Matthew, the important criteria is the amount applied per acre of GA3 applied, not the concentration of any particular stock solution. According to Matthew, for some pastures “apply at 8 g/ha active ingredient in 100-200 litres water/ha, best suited to rotational grazing systems.” If one were simply trying achieve a final application rate, it is straightforward to make a solution and dilute it accordingly. At the time the invention was made it was obvious to make a solution of GA3 in isopropanol at any concentration between 5 wt% and 15 wt%. The artisan of ordinary skill can make a solution of gibberellic acid at any concentration desired up to the maximum amount that will dissolve. With regard to the limitation of “elevated temperature”, and the various temperatures claimed, increasing the temperature leads to increased solubility. Solubility dependence on temperature is a basic chemical principle.1 One may stir a material in a solvent at room temperature and it won’t dissolve, however applying heat will aid in dissolution. Discovering the maximal amount of gibberellic acid that can be dissolved in isopropanol at a certain temperature is a straightforward experiment presenting no technical challenge. Returning the solution to room temperature won’t necessarily result in crystallization or precipitation.2 A more concentrated solution would reduce transportation costs and solvent expense.
Conclusion
4. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID K O'DELL whose telephone number is (571)272-9071. The examiner can normally be reached on Monday - Friday 9:30 - 7:00 PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton Brooks can be reached on 571-270-7682. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID K O'DELL/Primary Examiner, Art Unit 1621
1 “solubility The quantity of solute that dissolves in a given quantity of solvent to form a saturated solution. Solubility is measured in kilogram~ per meter cubed, moles per kilogram of solvent. etc. The solubility of a substance in a given solvent depends on the temperature. Generally, for a solid in a liquid, solubility increases with temperature; for a gas solubility decreases.” [ A Dictionary of Chemistry THIRD EDITION Edited by JOHN DAINTITH OXFORD UNIVERSITY PRESS 1996 Page 455.]
2 Brown and LeMay Chemistry The Central Science, Prentice Hall, Pages 474-475, 480.
