DETAILED CORRESPONDENCE
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA (America Invents Act). As a result, Applicant is encouraged to review the AIA in the MPEP. Applicant should also note that the wording, requirements, and statutes may have some subtle changes from actions and requirements prior to AIA .
Claims Pending
Claims 1-4, 7, 17-20, 23, 33-36, 39, 49-52 and will be examined on the merits. Applicant has cancelled claims 5-6, 8-16, 21-22, 24-32, 37-38, 40-48, 53-54 and 56-66.
Priority
The present application filed on 15 January 2025 claims the benefit of U.S. Provisional application numbers of 62/461,998 filed on 22 February 2017 and 62/611,345 filed on 28 December 2017, respectively.
Information Disclosure Statement
The information disclosure filed on 1 April 2025 has been considered by the Examiner.
Drawings
The drawings, filed on 15 January 2025, have been approved.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Claim Interpretation
Regarding claims 1,3-4, 7, 17,19-20, 23, 33, 35-36, 3949, 51-52, the recitations having 112(b) issues in the parent case 16/487,229, such as “incomplete water solution,” “effective amount,” and “nutritionally effective amount” have been acknowledged and have been withdrawn in the Advisory Action filed on 26 August 2024.
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
The claim limitation “A hydroponic system for feeding a leafy vegetable plant through its foliage, comprising (a) a means for applying a foliar feed formulation to a leaf of a leafy vegetable plant; (b) a means for contacting the roots of the plant with an incomplete water solution” in claim 33 uses the phrase “means for” or “step for” or a generic placeholder coupled with functional language, but it is not modified by some structure, material, or acts recited in the claim. Therefore, claim 33 is interpreted per the broadest reasonable interpretation standard as a “means-plus-function” claim, to include application of the foliar feed formulation and contacting the roots of the plant.
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 of this title, 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.
Claims 1-4, 7, 17-20, 23, 33-36, 39, 49-52 and 55 are rejected under 35 U.S.C. 103 as being unpatentable over Raskin et al. (US 5,876,484) in view of Goodwin (US 2011/0077155), Chambers (US 2014/0113814) and Biksa (“Hydroponics Foliar Spray in Gardens,” published 8 April 2014).
The claims are broadly drawn to a method of nourishing a plant through its foliage by applying a feed formulation to a leaf of a leafy vegetable plant where the roots of the plant are in contact with an incomplete water solution which comprises less than the plant’s nutritional nitrogen requirements and the formulation comprises an effective amount of at least one amino acid and the formulation also contains a gelling agent, a penetrant and a biocide and also comprises a hydroponic system for feeding a leafy vegetable plant.
Regarding claims 1, 17 and 33, Raskin et al. teach the growth of plants in a nutrient-free (reads on incomplete water solution) by suspending the plant in nutrient-free water and by growing the plant in a receptacle that serves as a nutrient trap for externally added nutrients (i.e. nutrients added aerially to the plant or directly to the receptacle so that the plant roots do not first come into contact with the plant nutrients) (which reads on a hydroponic system) (col. 1, lines 33-39 and col. 2, lines 32-35, 40-42). Additionally, Raskin et al. teach that the nutrients are added aerially (which reads on applying to the leaves) to the growing shoots and/or leaves first and not the roots and may float on the surface of the solution (col. 5, lines 2-15, 27). The type of plants suitable is in the family Brassicaceae such as spinach (leafy vegetable plant) (col. 2, line 16; col. 6, lines 5-7 and claim 9).
Raskin et al. do not teach specifically an amino acid, gelling agent or a biocide or a penetrant
Regarding claims 1(b), 2, 7, 17(b), 18, 23, 33(2), 34, 39, 49-50 and 55, Goodwin teaches improving growth or nutrition of a plant by applying a foliar spray, comprising a plant nutrient (micronutrients and macronutrients), to a leafy vegetable plant ((0006], [0009], [0017], [0094]-[0102]). Goodwin also teaches that amino acids can be in the composition such as arginine, aspartic acid, glutamic acid, glycine, histidine, isoleucine, serine, threonine, tyrosine or valine ([0052]. Components can include plant nutrients such as nitrogen, potassium, sulfur, phosphorus, calcium, magnesium, iron, zinc, manganese, copper and boron ([0067], [0069]). The foliar spray can also contain a pesticide, herbicide, insecticide, fungicide or bactericide (which reads on a biocide) ([0013]). The feed formulation comprises an effective amount of penetrant such as dimethylsufoxide (DMSO) which reads on a biocompatible polar aprotic solvent ([0070] and [0092]).
Regarding claims 3-4, 17(b), 19-20, 35-36 and 51-52, Chamber teaches using guar gum (i.e. which reads on gelling agent) as a stabilizer in the composition to promote plant growth, health and yield ([0041], [0060] and [0090]). Chambers also teaches that the composition can be used on the foliage of leafy vegetables ([0010], [0042]-[0043], [0048] and [0058]). Additionally, Chambers teaches that macronutrients and micronutrients such as nitrogen, potassium, phosphorus, calcium, magnesium, sulfur, iron, manganese, zinc, copper, boron, molybdenum can be used in the composition as well as amino acids and other N-containing substances and may be in a liquid or solid form ([0044] and [0062]). Chambers also teach using fungicides, bactericides and anti-microbials (which reads on biocides) ([0078] and PG Pub claims 1-2, 4, 8, 10-13, 16, 18-19).
Regarding claim 33, Biksa teaches hydroponic sprays to deliver nutrients onto and often into crops through the foliage via prepared sprays. Hydroponics sprays applied at the right time can improve plant growth rates and correct nutrient deficiencies (whole document)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made by nourishing a leafy vegetable plant through its foliage where the roots are in contact with an incomplete water solution that comprises less than the plant’s nutritional nitrogen requirements as well as macro and micronutrients and comprises an amino acid, gelling agent, biocide and a penetrant by using a hydroponic system to feed leafy vegetable plants by spraying a foliar feed formulation containing amino acid and macro and micronutrients to the foliage of leafy vegetable plants while the roots of the plant are in contact with an incomplete water solution as taught in the cited references. One would have been motivated to combine the references to make the claimed invention because Raskin et al. teach using a hydroponic system where the plant is in a receptacle and the receptacle contains nutrient-free water for the roots and the nutrients first come in contact with the leaves aerially. One would have also been further motivated to combine Raskin et al. with Biksa because Biksa teaches a hydroponic foliar spray via through foliage and when applied at the right time can improve growth rates, correct deficiencies and boost plant vitality and vigour.
It would have been further obvious to use an amino for the source of nitrogen as well as macro and micro nutrient to be used as a foliage spray as taught by Goodwin along with a gelling agent, biocide and penetrant as taught in Chambers and apply it as a hydroponic spray as taught by Biksa and spray the plants that are used in the receptacle which contains nutrient-free water as taught by Raskin et al. One would have been motivated to combine the teachings of Raskin et al. with Biksa, Goodwin and Chambers to use the hydroponic system because the hydroponic system receptacle contains the incomplete water solution (i.e. nutrient-free) and all the nutrients would be available as a foliar application and not available through the roots so there would be no need to additionally fertilize the root zone or soil saving in time, labor and the extra cost as well as any excess nutrients that would be leached away in the soil. Additionally, the benefits of Biksa are that of foliar feeding is a proven technique to deliver nutrients onto and often through the foliage via sprays.
Additionally, Applicant is reminded that as stated in claim 1, the word “comprising” is understood to be open-ended suggesting unknown components that are included in the procedure. “Comprising” is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim. See MPEP 2111.03.
Moreover, it is apparent that one of ordinary skill in the art would have a reasonable expectation of success in using the methods as taught in the cited references as it was commonly known in the art to grow leafy vegetable plants by applying a foliar feed formulation which includes an amino acid to the plants and having those plants anchored in an inert medium as well as the benefits a foliar feed formulation entails as disclosed supra. Therefore, one of ordinary skill would expect a reasonable expectation of success in obtaining the claimed invention
Thus, the invention, as a whole, would be clearly prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Summary
No claim is allowed.
Correspondence
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to SUSAN MCCORMICK EWOLDT whose telephone number is (571)272-0981. The Examiner can normally be reached on M-TH 5:30-4.
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If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Bratislav Stankovic can be reached on 571-270-0305. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUSAN MCCORMICK EWOLDT/Primary Examiner, Art Unit 1661