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 .
Claims 22-41 have been presented for examination on the merits.
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 24 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 24 is indefinite for reciting that the method of claim 1 wherein the composition further comprises at least one elicitor. However, claim 1 recites the presence of MDHJ, which as defined by the Specification is an elicitor. Therefore, this renders the scope of claim 8 indefinite because it is not clear if the said elicitor is MDHJ of claim 1 or a different elicitor (compound).
Claim 24 is indefinite for reciting that the method of claim 1 wherein the composition further comprises at least one elicitor, a fungicide, pesticide, and/or plant beneficial nutrients. However, the term “at least one” implies that the composition may comprise one or more of the recited species. Thus, the term “or” renders the scope indefinite.
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 22-24, 26-29, 32-33 and 37-39 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Scheer et al (US 20150230462).
Applicant’s claims
Claims are directed to a method of inhibiting a plant fungal pathogen, said method comprising applying a composition comprising between about 1 mM and about 10 mM methyl dihydrojasmonate (MDHJ) one or more times to an aerial biomass of the plant and/or a root of the plant, wherein the application of MDHJ inhibits the plant fungal pathogen.
With regards to Claim 22, Scheer et al disclose methods of seed treatment comprising exposing a seed to methyl dihydrojasmonate (MDHJ) at an amount and duration effective for improving a stress tolerance characteristic of a seedling or plant (abstract; Scheer claim 1). In an embodiment, the stress tolerance characteristic is resistance to a biotic stress such as fungi (See [0031], [0043], [0111] and claim 16).
Further regarding claim 22, Scheer teaches that formulations comprising MDHJ may be applied to roots, foliage or some other part of a plant once or, alternatively, two or more times at defined intervals of time, such as every 2-14 days, every 30 days, or 1-2 times per month, etc, (See [0103]).
Regarding claims 22-23, Scheer also teaches embodiments wherein the MDHJ is present in a liquid formulation and the MDHJ is present in the liquid formulation at a concentration of 4.5 mM to 10 mM. In an exemplified aspect, the MDHJ is present in the liquid formulation at a concentration of 4.5 mM to 10 mM (Scheer claim 5; [0020], [0022] and [0098]).
Regarding claims 24, Scheer teaches the MDHJ preparations comprise other components including wetting agents, adjuvants, emulsifiers, dispersants, spreaders, fixatives, extenders, buffering agents, plant nutrients, plant growth regulators, plant defense activators, pesticides, fungicides, beneficial microbes or other active compounds (See [0070], [0074] and [0100]).
Regarding claims 26-27, Scheer teaches that formulations comprising MDHJ may be applied to roots, foliage or some other part of a plant once or, alternatively, two or more times at defined intervals of time, such as every 2-14 days, every 30 days, or 1-2 times per month, etc. The MDHJ solutions can be applied daily, on alternative days, once every three days, once a week, or at varying intervals, repeatedly for up to several weeks after planting (See [0095] and [0103]).
Regarding claim 28, Scheer teaches that formulations comprising MDHJ may also include fixative and extender compounds, including benzyl salicylate, synthetic musks, etc (See [0077]).
Regarding claims 29 and 33, Scheer teaches that formulations comprising MDHJ may be applied to plant's foliage, roots, stems, and flowers, branches and fruits (See [0019], [0054] and [0081]).
Regarding claim 32, Scheer teaches that formulations comprising MDHJ are effective for improving a germination characteristic or a stress tolerance characteristic of a seedling or plant resulting from the seed (See [0032]-[0033] and [0067]).
Regarding claim 37, Scheer et al disclose methods of seed treatment comprising exposing a seed to methyl dihydrojasmonate (MDHJ) at an amount and duration effective for improving a stress tolerance characteristic of a seedling or plant (abstract; Scheer claim 1). In an embodiment, the stress tolerance characteristic is resistance to a biotic stress such as fungi (See [0031], [0043], [0111] and claim 16). Scheer also teaches that formulations comprising MDHJ may be applied to roots, foliage or some other part of a plant once or, alternatively, two or more times at defined intervals of time, such as every 2-14 days, every 30 days, or 1-2 times per month, etc, (See [0103]). Scheer further teaches embodiments wherein the MDHJ is present in a liquid formulation and the MDHJ is present in the liquid formulation at a concentration of 4.5 mM to 10 mM (Scheer claim 5; [0020], [0022] and [0098]).
Regarding claims 33 and 37-39, Scheer et al teach an additional aspect of the invention is treating juvenile or adult plants with MDHJ, after planting of seeds. The said formulation may be applied to the roots, foliage, flowers, stem, branches, fruits, or other parts of the plants. The applications of MDHJ to adult plants of a variety of crops, including grains, fruits, and vegetables (See [0019] and [0069]).
Regarding claim 39, Scheer et al disclose that forms of MDHJ may be adapted for application to the plant's foliage, roots, stems, and flowers, advantageously in the forms of foliar sprays, root solutions, and pellet-based root preparations. As a root solution or preparation, jasmonates such as MDHJ may be formulated and applied to plants grown in soil, non-soil, artificial growing media, and/or hydroponic systems (See [0081]).
Although Scheer does not appear to explicitly disclose the intended purpose recited in the preamble of the instant claims 22 and 37, if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). In the instant case, Scheer discloses performing the active step using the claimed elicitor in amounts claimed as an effective amount and duration effective for improving a stress tolerance characteristic of the seed including fungal pathogens. Thus, absent evidence to the contrary, performing Scheer’s method as discussed above will also necessarily result in the inhibition of a plant fungal pathogen.
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:
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.
Claim interpretation
Claim 1 includes the limitation of “one or more times”. Giving it its broadest reasonable interpretation, it encompasses one or more time in a day, week, month or year.
Claim 1 also recites “the aerial biomass”. The specification does not expressly disclose this term or provide a definition. It encompasses any plant part operating in the air, or above ground.
The Specification does not provide any specific disclosures, data or tests regarding the specific species in claims 34-36.
Claims 22-24, 26-41 are rejected under 35 U.S.C. 103 as being unpatentable over Scheer et al (US 20150230462) in combination with Belhadj et al (Methyl Jasmonate Induces Defense Responses in Grapevine and Triggers Protection against Erysiphe necator).
The teachings of Scheer et al are delineated above and incorporated herein.
Scheer et al lack an express disclosure on the specifically claimed species of plants and fungal pathogens. These are taught by and would have been obvious over Belhadj et al.
Scheer et al teach a method of applying effective amount of methyl dihydrojasmonate (MDHJ) to seeds, adult plants or plant parts to improve a stress tolerance characteristic of the said plant. Scheer et al also teach that one of said stresses is a fungal disease. Scheer et al teach that concentration of MDHJ and its application time and frequency, as claimed (See above).
Belhadj et al teaches that applying methyl jasmonates induce defense responses in grapevine and triggers protection against fungal diseases caused by Erysiphe necator and other pathogens (See title and abstract).
Regarding claims 22, 37 and 39, Belhadj et al teach that plant treatment with signaling molecules like elicitors stimulates their natural defense mechanisms. To improve grapevine tolerance against fungal pathogens, Vitis vinifera plants were treated with a natural exogenous elicitor, methyl jasmonate (MeJA). The eliciting activity of MeJA was confirmed by enhanced tolerance of grapevine foliar cuttings and vineyard against powdery mildew (75% and 73%, respectively). Based on these original results, MeJA can therefore act as an efficient elicitor in an alternative strategy of grapevine protection (See abstract). it is disclosed that MeJA was dissolved in 1% EtOH to a final concentration of 5 mM (0.67 kg/ha) or 15 mM (2 kg/ha) and added to an aqueous solution containing the wetting agent Triton X-100 (0.1%) (See Page 9120, 1st col. 3rd full para). Ten milliliters of this solution was sprayed per foliar (See Page 9120, 1st Col. 3rd and 4th paras).
With regards to claims 26-27, Belhadj et al also disclose that healthy vine stocks were sprayed every 7−10 day from May to August (See Page 9120, 1st Col. 4th para and Page 9123, Fig. 4).
Regarding claim 28, Belhadj et al teach that elicitor perception triggers various signaling pathways: synthesis of signal molecules such as salicylic acid, jasmonic acid, etc, (See Introduction, 2nd para).
Regarding claims 30-31, 36 and 40-41, Belhadj et al also disclose that fungal diseases are a major problem in grapevine cultivation around the world. Grapevine (Vitis vinifera L.) is susceptible to many fungi, such as Botrytis cinerea (gray mold), Plasmopara viticola (downy mildew), Erysiphe necator (powdery mildew), and Eutypa lata (dieback). Fungal infection reduces fruit quality and yield, either by direct infection of berries themselves or through a reduction in plant vigor (See Introduction).
Belhadj et al disclose application of said compositions to grapevine (Vitis spp) to protect the plant against powdery mildew (Erysiphe necator) (See entire document).
Regarding claims 30-31, 34-35 and 40-41, Belhadj et al adds that Jasmonates have also been reported to induce local and systemic protection against Phytophtora infestans in potato and tomato plants, Pythium ultimum in Norway spruce (reading on leafy green), powdery mildew in barley seedlings, and downy mildew in grapevine plants (See Discussion, para bridging 1st and 2nd cols).
Scheer et al also teach application of the said composition to various plants, fruits and vegetables, including rose (i.e. Fragaria), leafy green (e.g. kale), etc (See [0069] and [0115]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to have combined the teachings of Belhadj et al with that of Scheer et al to arrive at the claimed method. It would have been obvious to do so because Scheer et al and Belhadj et al both teach similar methods and teach that methyl jasmonate and methyl dihydrojasmonates have been studied as effective antifungal agents for given fungal infection in plants. Scheer et al teach compositions comprising MDHJ and other suitable adjuvants including fungicides to plants and lant parts to improve the said plants resistance against factors including fungus infection. Belhadj et al teaches that methyl jasmonate is an effective antifungal treatment for protecting plants such as grapevine against fungal pathogens. Accordingly, one of ordinary skill in the art would have been more than motivated to have combined Scheer et al’s compositions comprising methyl dihydrojasmonate and methods with teachings of Belhadj et al on the use of such compositions on various plant species and against various fungal species with a reasonable expectation of success. In other words, the combination of Scher et al and Belhadj at al’s teachings would have led one of ordinary skill in the art to the claimed method.
In other words, the claims would have been obvious because a person of ordinary skill has good reasons to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense.
Claims 24-25 are rejected under 35 U.S.C. 103 as being unpatentable over Scheer et al (US 20150230462) in combination with Belhadj et al (Methyl Jasmonate Induces Defense Responses in Grapevine and Triggers Protection against Erysiphe necator) as applied to claim 22 and in further view of Basel et al (US 20150282479).
Applicant’s claims
Claims 24-25 add the limitation of “the method of claim 22 wherein the composition further comprises an elicitor which is 1-methylcyclopropene.
As recited above, claim 24 recite the additional agents in alternative, i.e, only one agent is required. One of these agents is an elicitor. MDHJ of claim 22 is an elicitor. Claim 25 recites that the elicitor of claim 24 is 1- methylcyclopropene.
The teachings of Scheer et al and Belhadj et al are delineated above and incorporated herein.
The combined references do not expressly disclose the inclusion of 1-methylcyclopropene. Basel et al is relied upon for this disclosure.
Basel et al disclose methods of treating crop plants and methods of treating dicot seedlings to improve quality, yield, and/or environmental stress tolerance of crop plants (para.0002). Basel’s methods comprise contacting crop plants one or more times with a composition comprising at least one cyclopropene (para.0010). In an embodiment, the cyclopropene is 1-methylcyclopropene (1-MCP) (para.0052; Basel claims 5 and 20). The said crop plants that may be treated with Basel’s method include fruits and vegetables including asparagus, lettuce, spinach, grapes, strawberry, etc (See [0137]-[0138]).
Basel et al further disclose that the compositions may comprise non-cyclopropene secondary growth inhibitors, including, methyl jasmonate (See [0064]).
It is further stated that the said composition comprises at least one cyclopropene and at least one fungicidally active compound (See [0067]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to have combined the teachings of Basel et al with that of Scheer et al and Belhadj et al to arrive at the claimed method. It would have been obvious to do so because Scheer et al teaches compositions comprising and application of MDHJ to crops and plants such as asparagus, to improve seed germination and stress tolerance. Belhadj et al teach that methyl jasmonate is an effective antifungal treatment for protecting plants such as grapevine against fungal pathogens. In light of Basel’s disclosure that 1-MCP is known to be applied to crop plants to improve quality, yield, and environmental stress tolerance, one of ordinary skill in the art would have found it prima facie obvious before the effective filing date of the instant invention to combine the teachings of Scheer et al and Belhadj et al with the teachings of Basel et al and further include 1-MCP to the composition comprising MDHJ to apply to crop seeds and plants, e.g., asparagus. One of ordinary skill in the art would have been motivated to do so to obtain the benefit of improving the quality and yield of the crop plants. Furthermore, one of ordinary skill in the art would have had a reasonable expectation of success in doing so as Scheer et al discloses that their composition may further include additional active compounds, and Basel discloses that 1-MCP is known to be applied to crop plants such as asparagus. As a general principle it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose, the idea of combining them flows logically from their having been individually taught in the prior art. See In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) MPEP 2144.06. In the instant case, both Scheer’s MDHJ and Basel’s 1-MCP are disclosed as compounds that improve stress tolerance in plants.
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.
Claims 22-24, 26-41 are rejected under 35 U.S.C. 103 as being unpatentable over Scheer et al (US 20150230462) in combination with Belhadj et al (Methyl Jasmonate Induces Defense Responses in Grapevine and Triggers Protection against Erysiphe necator) as applied to claims 22 and 37 and in further view of Oren-Shamir et al (US 20190246639).
Applicant’s claims
Claims 34-36 recite specific species of plants and pathogens
Scheer et al and Belhadj et al’s teachings are delineated above and incorporated herein.
The references disclose application of the said compositions to plant parts such as fruit and vegetables wherein the pathogens are fungal species but lack disclosure on some specific species as claimed. This is taught by Oren-Shamir et al.
Oren-Shamir et al teach a method of controlling a fungus infection in a plant susceptible to Botrytis infection, comprising applying to the plant an effective amount of a phenylalanine or an analog thereof for controlling said fungus infection in the plant (See abstract).
Regarding claims 30-31, 34-36 and 40-41, Oren-Shamir et al also teach that the cultivated fruit plant is selected from the group consisting of strawberries, grapes, apples, blueberries, cherries (See [0041]) and the plant susceptible to Botrytis infection is selected from the group consisting of bean, cabbage, carrot, onion and cucumber (See [0042]).
Regarding claims 34-36, Oren-Shamir et al tabulate in Table 1, a list of pathogens including Pythium spp, Phytophthora spp, and Botrytis that cause infections in specific plants including strawberry (i.e. Fragaria), grape (i.e. Vitis) and leafy green. The said fungus may be from the group consisting of Botrytis, Plenodomus tracheiphilus syn Phoma tracheiphila, Sclerotinia sclerotiorum and Alternaria (See [0022]), Pythium aphanidermatum (See [0024] and [0095]), or Phytophthora spp (See [0095]-[0096]).
Regarding claim 22, 29 and 32-33, it is disclosed that the applying may be in the vicinity of or onto the roots, stems, trunk, seed, fruits or leaves of the plant (See [0037]).
Regarding claims 29 and 39, Oren-Shamir et al disclose that the applying may be by irrigation, drenching, dipping, soaking, injection, coating or spraying (See [0038]).
Regarding claim 37, Oren-Shamir et al teach that applying comprises pre-harvest applying or post-harvest applying and that the plant part is fruit (See [0027]-[0028], [0034], [0136]-[0137] and [0163]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to have combined the teachings of Oren-Shamir et all with that of Scheer et al and Belhadj et al to arrive at the claimed method. The reasons for combining Scheer et al and Belhadj et al is delineated above and incorporated herein.
Oren-Shamir et al, similarly teaches a method of treating plants and plant parts against various fungal infections and disclose that the said application is effective against plants pre-harvest or fruits post-harvest and the application can be effective in various fruits or vegetables against various pathogens as listed.
As such, one of ordinary skill in the art interested in following the method and teachings of Scheer et al and Belhadj et al would have been interested to have incorporated Oren-Shamir et al’s teachings and applied the said compositions to both plants and harvested fruits and vegetables and protected them against various fungal pathogens with a reasonable expectation of success.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 22-41 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 45-46, 93, 97 and 105 of copending Application No. 18/716,799 (US 20250031697) in view of Basel et al (US 20150282479). The Obviousness Double Patenting rejection is appropriate because while the conflicting claims are not identical, the examined claims are not patentably distinct from the reference claims and would have been obvious over the reference claims in view of Basel et al.
Examined claim 22 is drawn to a method of inhibiting a plant fungal pathogen, said method comprising applying a composition comprising between about 1 mM and about 10 mM methyl dihydrojasmonate (MDHJ) one or more times to an aerial biomass of the plant and/or a root of the plant, wherein the application of MDHJ inhibits the plant fungal pathogen. Claims 24 and 25 add an additional elicitor which is 1-methylcyclopropene.
Reference claim 1 is directed to a method of treating or preventing pest infestation and/or pathogen infection of a plant or plant part, the method comprising applying (i) a composition comprising between about 0.1 mM and about 10 mM methyl dihydrojasmonate and (ii) a biological to the plant, the plant part, or a root zone of the plant, wherein said method prevents or reduces pest and/or pathogen damage to the plant or plant part compared to untreated plants.
The difference is that the claimed method discloses the addition of an added elicitor, which is 1- methylcyclopropene whereas the reference claims recite the presence of a biological. This difference, however, would have been obvious over the teachings of the prior art such as Basel et al. Basel et al teach methods of treating crop plants and dicot seedlings to improve quality, yield, and/or environmental stress tolerance of crop plants. The methods comprise contacting crop plants one or more times with a composition comprising at least one cyclopropene such as 1-methylcyclopropene (1-MCP). Basel et al further disclose that the compositions may comprise non-cyclopropene secondary growth inhibitors, including methyl jasmonate or natural growth hormones derived from bacteria.
Thus, one of ordinary skill in the art would have been motivated to have added a cyclopropene such as 1-methylcyclopropene as taught by Basel et al to the reference method to improve the effect of the claimed inhibition of fungal pathogen with a reasonable expectation of success.
Remaining differences are minor and would have been obvious as well.
This is a provisional nonstatutory double patenting rejection.
Claims 22-41 are rejected.
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/Mina Haghighatian/
Mina Haghighatian
Primary Examiner
Art Unit 1616
Prosecution Insights