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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 1/21/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
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 1, 3-12 and 14-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 5-9 and 16-25 of U.S. Patent No. 12,232,494. Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims require an aqueous solvent, LCO molecules, an alkyl sulfate or alkyl sulfonate and an alcohol ethoxylate whereas patent 12,232,494 requires anionic surfactants selected from carbonate, phosphate, sulfate or sulfonate in an amount sufficient to prevent or reduce agglomeration of LCO molecules and nonionic surfactant selected from hydrocarbon chain or ethoxylate chain in an amount sufficient to form micelles comprising at least a portion of the LCO molecules such that at least 75% of the molecules are solubilized.
Therefore, the present claims are prima facie obvious in view of claims 5-9 and 16-25 of patent 12,232,494.
Claims 2 and 13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 5-9 and 16-25 of U.S. Patent No. 12,232,494 in view of Smith et al. (US 8,992,653; patented March 31, 2015). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims require an aqueous solvent, LCO molecules, an alkyl sulfate or alkyl sulfonate and an alcohol ethoxylate whereas patent 12,232,494 requires anionic surfactants selected from carbonate, phosphate, sulfate or sulfonate in an amount sufficient to prevent or reduce agglomeration of LCO molecules and nonionic surfactant selected from hydrocarbon chain or ethoxylate chain in an amount sufficient to form micelles comprising at least a portion of the LCO molecules such that at least 75% of the molecules are solubilized.
With respect to claim 2, patent 12,232,494 does not teach an LCO molecule of structure V or VII below.
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With respect to claim 13, patent 12,232,494 does not specify the pH is 6.5-7.5.
It is for this reason that Smith et al. is joined.
Smith et al. teach methods of enhancing plant growth by treating seeds with LCO signal molecules (column 2, lines 10-28). LCOs encompass compounds of structures V and VII (Figures 1 & 2; column 3, lines 65-67). Formulations include aqueous carriers and agriculturally acceptable carriers (column 13, line 63 through column 14, line 2). The soil pH ranges wherein the plant signal molecules were applied ranged from 6.6-6.8 (Examples 1 and 2).
Both patent 12,232,494 and Smith et al. are drawn to LCO formulations. Therefore, it would have been prima facie obvious to combine the teachings of patent 12,232,494 and Smith et al. to include LCO molecules of structure V or VII at a pH of 6.6-6.8 with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of patent 12,232,494 and Smith et al. to include LCO molecules of structure V or VII at pH of 6.6-6.8 because Smith et al. teaches applying LCO molecules of structures V or VII to soil with a pH of 6.6-6.8 is effective in enhancing plant growth.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 5 and 6 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claims 5 and 6 recite alkylbenzene sulfonate and alkyl(C10-16)benzene sulfonate are alkyl sulfonate. However, alkylbenzene sulfonate is an alkylaryl sulfonate not an alkyl sulfonate. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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, 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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 3-8, 10-12 and 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over O’Bryan et al. (CA 2893927; published August 7, 2014) in view of Malihi et al. (Evaluation of Physio-Chemical Interactions between Linear Alkylbenzene Sulfonate (LAS) and Alcohol Ethoxylates, Physical Chemistry, Tenside Surf.Det. 48 (2011)).
Applicant claims aqueous lipo-chitooligosaccharide (LCO) solution comprising and aqueous solvent, LCO molecules, and alkyl sulfate or alkyl sulfonate having a linear hydrocarbon tail that is at least 8 carbons in length and an alcohol ethoxylate. (Claim 1)
Claims 14-17 are drawn to inherent properties of the formulation.
O’Bryan et al. teaches formulations and methods for improving plant growth and crop yield comprising LCO compound TAMG (abstract). The formulations typically contain effective amounts of active ingredient, diluent and a surfactant in amounts in the table below (page 6, lines 22-25).
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Diluents include water and surfactants include ethoxylated alcohols, alkyl sulfates and alkylaryl sulfonates (page 7, line 1 through page 8, line 10). Solutions, including emulsifiable concentrates can be prepared by simply mixing the ingredients (page 8, lines 11-12). Aqueous liquid compositions include concentrated emulsions, soluble concentrates, suspension concentrates, capsule suspensions, microemulsions and suspoemulsions (page 21, lines 19-26).
With respect to claims 1, 3-12 and 14-17, O’Bryan et al. do not specify an alkyl sulfate or alkyl sulfonate having a linear hydrocarbon of at least 8 carbons in length, preferably C10-16 alkylbenzene sulfonate and an alcohol ethoxylate in combination, however surfactants are taught to be selected from genus of ethoxylated alcohols, alkyl sulfates and alkylarylsulfonates. It is for this reason that Malihi et al. is joined.
Malihi et al. teach surfactant mixtures of linear alkylbenzene sulfonate (LAS) and ethoxylated alcohols (AE) (C12-14) with 7EO and 2EO units cause the formation of mixed micelles (lower critical micelle concentration (CMC) which provide water hardness protection of LAS and improves soil solubilization in hard water (abstract and Introduction 1, paragraphs 1-3). The effect of a surfactant system with binary mixtures was analyzed and the optimum ratio of nonionic to LAS depended on water hardness with a 75:25 ratio of LAS/AE providing the best detergency (Figure 5, Results and Discussion 3.1-3.3). The presence of about 10% nonionic surfactant in the mixture reduced the CMC value by a factor of 10 vs when LAS is used alone (Table 1 & 2).
Both O’Bryan et al. and Malihi et al. are drawn to aqueous solutions comprising anionic and nonionic surfactants. Therefore, it would have been prima facie obvious to combine the teachings of O’Bryan et al. and Malihi et al. to form surfactant systems comprising combinations of anionic surfactants selected from alkyl sulfates and alkyl sulfonates and nonionic alcohol ethoxylates with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of O’Bryan et al. and Malihi et al. to combine anionic surfactants selected from alkyl sulfates or alkyl sulfonates with nonionic alcohol ethoxylates because Malihi et al. teaches that combining linear alkylbenzene sulfonates with ethoxylated alcohols in a ratio of 75:25 causes the formulation of micelles which provide improved solubilization in hard water because the presence of about 10% nonionic surfactant in the mixture reduces the CMC value by a factor of 10.
Claim(s) 2 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over O’Bryan et al. (CA 2893927; published August 7, 2014) in view of Malihi et al. (Evaluation of Physio-Chemical Interactions between Linear Alkylbenzene Sulfonate (LAS) and Alcohol Ethoxylates, Physical Chemistry, Tenside Surf.Det. 48 (2011)), as applied to claims 1, 3-8, 10-12 and 14-17 in view of Smith et al. (US 8,992,653; patented March 31, 2015).
Applicant claims aqueous lipo-chitooligosaccharide (LCO) solution comprising and aqueous solvent, LCO molecules, and alkyl sulfate or alkyl sulfonate having a linear hydrocarbon tail that is at least 8 carbons in length and an alcohol ethoxylate. (Claim 1)
With respect to claim 2, O’Bryan et al. and Malihi et al. do not teach an LCO molecule of structure V or VII below.
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With respect to claim 13, O’Bryan et al. and Malihi et al. do not specify the pH is 6.5-7.5.
It is for this reason that Smith et al. is joined.
Smith et al. teach methods of enhancing plant growth by treating seeds with LCO signal molecules (column 2, lines 10-28). LCOs encompass compounds of structures V and VII (Figures 1 & 2; column 3, lines 65-67). Formulations include aqueous carriers and agriculturally acceptable carriers (column 13, line 63 through column 14, line 2). The soil pH ranges wherein the plant signal molecules were applied ranged from 6.6-6.8 (Examples 1 and 2).
Both O’Bryan et al. and Smith et al. are drawn to LCO formulations which enhance plant growth. Therefore, it would have been prima facie obvious to combine the teachings of O’Bryan et al., Malihi et al. and Smith et al. to include LCO molecules of structure V or VII at a pH of 6.6-6.8 with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of O’Bryan et al., Malihi et al. and Smith et al. to include LCO molecules of structure V or VII at pH of 6.6-6.8 because Smith et al. teaches applying LCO molecules of structures V or VII to soil with a pH of 6.6-6.8 is effective in enhancing plant growth.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over O’Bryan et al. (CA 2893927; published August 7, 2014) in view of Malihi et al. (Evaluation of Physio-Chemical Interactions between Linear Alkylbenzene Sulfonate (LAS) and Alcohol Ethoxylates, Physical Chemistry, Tenside Surf.Det. 48 (2011)), as applied to claims 1, 3-8, 10-12 and 14-17, in further view of Sun (WO 2010/003889; published January 14, 2010).
Applicant claims aqueous lipo-chitooligosaccharide (LCO) solution comprising and aqueous solvent, LCO molecules, and alkyl sulfate or alkyl sulfonate having a linear hydrocarbon tail that is at least 8 carbons in length and an alcohol ethoxylate. (Claim 1)
With respect to claim 9, O’Bryan et al. and Malihi et al. do not specify the alcohol ethoxylate is isodecyl alcohol ethoxylate.
It is for this reason that Sun is joined.
Sun teaches surfactant blends comprising at least one nonionic alkoxylate and at least one sugar-based surfactant which is used as an adjuvant for agricultural compounds (abstract). The nonionic alkoxylate includes alkoxylated alcohol which preferably has 10-13 carbon atoms (page 3, line 22 through page 4, line 18). The nonionic alkoxylate isodecyl alcohol (7EO) ethoxylate is preferably selected (page 6, line 30). The ratio of nonionic alkoxylate to sugar-based surfactant is from 25:75 to 75:25 (page 7, lines 21-24); Example 1)
Both O’Bryan et al. and Sun are drawn to formulations comprising alcohol ethoxylates which enhance plant growth. Therefore, it would have been prima facie obvious to combine the teachings of O’Bryan et al., Malihi et al. and Sun to include isodecyl alcohol ethoxylate with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of O’Bryan et al., Malihi et al. and Sun to include isodecyl alcohol ethoxylate because Sun teaches isodecyl alcohol ethoxylate is a preferred nonionic alkoxylate used in agricultural formulations.
Conclusion
No claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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DANIELLE D. JOHNSON
Examiner
Art Unit 1617
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
