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 .
Petition under 37 CFR 1.102(c)(1)
The petition under 37 CFR 1.102(c)(1) to make the application special based on applicant’s age was granted on 3 March 2025. Therefore, the application is SPECIAL.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 25 June 2026 was filed after the mailing date of the non-final Office action on 25 February 2026. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
The information disclosure statement fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the Foreign Patent Documents and Non-Patent Literature Documents that have been lined through have not been considered.
Status of the Claims
Claims 1, 25, 29, 31-39, 43-54, 57-59, 63, and 64 are pending. Claims 1, 25, 29, 32, 35-39, 43-44, 47-54, 57-59, 63, and 64 are withdrawn from consideration for being drawn to a non-elected invention. Claims 31, 33-34 and 45-46 are examined herein.
Withdrawn Objections/Rejections
Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn.
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 31, 33-34 and 45-46 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Liang et al. (CN 104892208 A).
Regarding instant claim 33, Liang et al. disclose a liquid composite trace element fertilizer comprising in weight percentage 0-1.0% citric acid, 0.18-3.3% copper sulfate pentahydrate, and 0.25-2.3% zinc sulfate monohydrate (Abstract; pg. 1; and Claim 1). Liang et al. further disclose application of compositions to plants, wherein the compositions comprise citric acid, zinc sulfate monohydrate and copper sulfate pentahydrate, wherein the compositions comprise 2%, 3% or 5% citric acid and a ratio by weight of copper sulfate pentahydrate to zinc sulfate monohydrate of 1:1.4, 6:100 or 2:57 (Examples 1-3).
Regarding the method of priming a plant against biotic and abiotic stress factors instantly claimed, Liang et al. disclose applying their liquid composite trace element fertilizer compositions to plants. Absent evidence to the contrary, application of the compositions according to Liang et al., which comprise the instantly claimed ingredients within the instantly claimed concentration ranges and weight ratios, would inherently result in priming of the plant against biotic and abiotic stress factors. A chemical composition and its properties are inseparable. Therefore, the compositions according to Liang et al. comprising the same components as instantly claimed would inherently possess the same plant priming properties. See MPEP 2112.01.
Regarding the claimed ratio by weight of copper sulfate pentahydrate to zinc sulfate monohydrate being between about 1:3 to about 1:4, Liang et al. disclose a composition comprising a ratio by weight of copper sulfate pentahydrate to zinc sulfate monohydrate of 1:1.4 (Example 1). The instant specification states that the term “about” means a range of values including the specified value, which a person of ordinary skill in the art would consider reasonably similar to the specified value ([0039]). Therefore, the ratio 1:1.4 is within the scope of about 1:3 since it is reasonably similar to the claimed ratio.
Regarding the ammonium sulfate and boric acid being excluded in the instant claims, Liang et al. do not disclose ammonium sulfate or boric acid being present in any of their compositions.
Regarding the composition being formulated as a plant priming composition as instantly claimed, the instant specification does not disclose specific features required to distinguish a plant priming composition from the compositions according to Liang et al. Liang et al. disclose liquid trace element fertilizer compositions comprising the same components as instantly claimed, wherein the compositions are applied to plants. Therefore, the compositions formulated according to Liang et al. fall within the scope of the compositions formulated according to the instant claims.
Regarding instant claims 31 and 34, Liang et al. disclose treating plants with a composition comprising zinc sulfate monohydrate, copper sulfate pentahydrate, and citric acid in the weight ratios and concentrations claimed, wherein the plants yield increased. Application of the compositions according to Liang et al. will inherently prime the plant against the biotic and abiotic stresses instantly claimed.
Regarding instant claims 45-56, Liang et al. disclose application of compositions to plants, wherein the compositions comprise the same components as instantly claimed. Application of the same components in the same concentration ranges to plants would inherently increase production of one or more plant priming biomarkers, including one or more biomarkers listed in instant claim 46.
The examiner respectfully points out the following from MPEP 2112: “The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus, the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). In In re Crish, 393 F.3d 1253, 1258, 73 USPQ2d 1364, 1368 (Fed. Cir. 2004), the court stated that “just as the discovery of properties of a known material does not make it novel, the identification and characterization of a prior art material also does not make it novel.”
Response to Arguments
Applicant's arguments filed 25 June 2026 have been fully considered but they are not persuasive. Applicant argues that Liang does not disclose or suggest the claimed weight ratio of CuSO4 5H2O to ZnSO4 H2O.
The examiner respectfully argues that Liang et al. disclose a composition comprising a ratio by weight of copper sulfate pentahydrate to zinc sulfate monohydrate of 1:1.4 (Example 1). The instant specification states that the term “about” means a range of values including the specified value, which a person of ordinary skill in the art would consider reasonably similar to the specified value ([0039]). Therefore, the ratio 1:1.4 is within the scope of about 1:3 since it is reasonably similar to the claimed ratio.
Applicant further argues that Liang does not teach or suggest a formulation characterized as a "plant priming composition." Applicant asserts that Liang is directed to trace element fertilization and nutrient supplementation and does not disclose plant priming against biotic or abiotic stress as a functional concept; rather, fertilizers are substances that provide nutrients to enhance plant growth where soils are deficient.
The examiner respectfully argues that the instant specification does not disclose specific features required to distinguish a plant priming composition from the compositions according to Liang et al. Liang et al. disclose liquid trace element fertilizer compositions comprising the same components as instantly claimed, wherein the compositions are applied to plants. Therefore, the compositions formulated according to Liang et al. fall within the scope of the compositions formulated according to the instant claims.
Applicant further argues that Liang does not teach or suggest the subject matter recited in claims 45 and 46, namely, increased production of one or more plant priming biomarkers. Applicant asserts that Liang does not teach measuring, detecting, or otherwise evaluating the levels of any of the plant priming biomarkers recited in claim 46. The Office Action does not provide any technical evidence demonstrating that treatment with the compositions in the cited references necessarily and inevitably results in production - let alone increased production - of the recited compounds. Applicant argues that the cited references do not establish a causal relationship between the disclosed nutrient supplementation and fertilizer compositions and the production of the claimed biomarkers. They do not provide any teaching, suggestion, or scientific rationale linking the supplied micronutrients to the specific metabolic pathways required to produce the recited compounds. Absent such a nexus, inherency cannot be established.
The examiner respectfully argues that Liang et al. disclose application of compositions to plants, wherein the compositions comprise the same components as instantly claimed. Application of the same components in the same concentration ranges to plants would inherently increase production of one or more plant priming biomarkers, including one or more biomarkers listed in instant claim 46.
The examiner respectfully points out the following from MPEP 2112: “The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus, the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). In In re Crish, 393 F.3d 1253, 1258, 73 USPQ2d 1364, 1368 (Fed. Cir. 2004), the court stated that “just as the discovery of properties of a known material does not make it novel, the identification and characterization of a prior art material also does not make it novel.”
Claims 31, 33-34 and 45-46 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ru (CN 1986495 A).
Regarding instant claim 33, Ru discloses a clear liquid fertilizer composition comprising 40-100 kg/m3 (i.e., ~4-10% by weight) of a trace element and 80-200 kg/m3 (i.e., ~8-20% by weight) of a chelating agent, wherein the trace element comprises copper sulfate pentahydrate and zinc sulfate monohydrate in an elemental mass ratio of Cu to Zn of 0.1 to 2.0 : 0.2 to 5.0, and the chelating agent comprises citric acid (pg. 1-2; Claims 1-2). Ru discloses that the fertilizer compositions improve growth and development of the plant and also provide the ability to resist disease, drought, lodging, and hot and dry wind, i.e., plant priming (pg. 2).
Ru specifically discloses a composition comprising 10 wt.% citric acid, 0.5 wt.% copper sulfate pentahydrate, and 1.0 wt.% zinc sulfate monohydrate (weight ratio of copper sulfate pentahydrate to zinc sulfate monohydrate of 1:2) (Example 1). Ru further discloses the elemental mass ratio of Cu to Zn of 0.1 to 2.0 : 0.2 to 5.0, and further provides examples comprising a weight ratio of copper sulfate pentahydrate to zinc sulfate monohydrate of 1:2 or 1:5 (Examples 1-2 and 5).
Regarding the method of priming a plant against biotic and abiotic stress factors instantly claimed, Ru discloses applying their clear liquid fertilizer compositions to plants. Absent evidence to the contrary, application of the compositions according to Ru, which comprise the instantly claimed ingredients within the instantly claimed concentration ranges and weight ratios, would inherently result in priming of the plant against biotic and abiotic stress factors. A chemical composition and its properties are inseparable. Therefore, the compositions according to Ru comprising the same components as instantly claimed would inherently possess the same plant priming properties. See MPEP 2112.01.
Regarding the claimed ratio by weight of copper sulfate pentahydrate to zinc sulfate monohydrate being between about 1:3 to about 1:4, Ru discloses a composition comprising a ratio by weight of copper sulfate pentahydrate to zinc sulfate monohydrate of 1:2 (Example 1). The instant specification states that the term “about” means a range of values including the specified value, which a person of ordinary skill in the art would consider reasonably similar to the specified value ([0039]). Therefore, the ratio 1:2 is within the scope of about 1:3 since it is reasonably similar to the claimed ratio.
Regarding the ammonium sulfate and boric acid being excluded in the instant claims, Ru does not disclose ammonium sulfate being present in any of their compositions, and specifically discloses a composition that does not contain boric acid (Example 1).
Regarding the composition being formulated as a plant priming composition as instantly claimed, Ru discloses the ability to resist disease, drought, lodging, and hot and dry wind, while also significantly improving wheat quality and early maturity (pg. 2). Therefore, the compositions according to Ru provide the plant the ability to resist biotic and abiotic stressors (i.e., plant priming). Further, the instant specification does not disclose specific features required to distinguish the instantly claimed plant priming composition from the compositions according to Ru. Ru discloses clear liquid fertilizer compositions comprising the same components as instantly claimed, wherein the compositions are applied to plants, and providing the ability to resist disease, drought, lodging, and hot and dry wind. Therefore, the compositions formulated according to Ru fall within the scope of the compositions formulated according to the instant claims.
Regarding instant claim 31, Ru discloses that the clear liquid fertilizer improves the growth and development process of wheat from the inside, improves the photosynthetic efficiency of plants, regulates the rational distribution of photosynthetic products, promotes the development of wheat pollen and normal fruiting, increases the filling speed and grain fullness, and induces wheat enhancement; as well as the ability to resist disease, drought, lodging, and hot and dry wind, while also significantly improving wheat quality and early maturity (pg. 2).
Regarding instant claim 34, Ru discloses the ability to resist disease, drought, lodging, and hot and dry wind, while also significantly improving wheat quality and early maturity (pg. 2). Ru discloses treating plants with a composition comprising zinc sulfate monohydrate, copper sulfate pentahydrate, and citric acid in the weight ratios and concentrations claimed. Application of the compositions according to Ru will inherently prime the plant against the biotic stresses instantly claimed.
Regarding instant claims 45-46, Ru discloses treating plants with a composition comprising zinc sulfate monohydrate, copper sulfate pentahydrate, and citric acid in the weight ratios and concentrations claimed, wherein the compositions improve growth and development of the plant and also provide the ability to resist disease, drought, lodging, and hot and dry wind, i.e., plant priming (pg. 2). Application of the compositions according to Ru will inherently prime the plant against biotic and abiotic stress and increase production of one or more plant priming biomarkers, including one or more biomarkers listed in instant claim 46.
The examiner respectfully points out the following from MPEP 2112: “The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus, the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). In In re Crish, 393 F.3d 1253, 1258, 73 USPQ2d 1364, 1368 (Fed. Cir. 2004), the court stated that “just as the discovery of properties of a known material does not make it novel, the identification and characterization of a prior art material also does not make it novel.”
Response to Arguments
Applicant's arguments filed 25 June 2026 have been fully considered but they are not persuasive. Applicant argues that Ru does not disclose or suggest the claimed weight ratio of CuSO4 5H2O to ZnSO4 H2O.
The examiner respectfully argues that Ru discloses a composition comprising a ratio by weight of copper sulfate pentahydrate to zinc sulfate monohydrate of 1:2 (Example 1). The instant specification states that the term “about” means a range of values including the specified value, which a person of ordinary skill in the art would consider reasonably similar to the specified value ([0039]). Therefore, the ratio 1:2 is within the scope of about 1:3 since it is reasonably similar to the claimed ratio.
Applicant further argues that Ru does not teach or suggest a formulation characterized as a "plant priming composition." Applicant asserts that Ru is directed to nutritional supplementation and improved nutrient uptake in wheat and does not teach or suggest priming mechanisms or stress-response activation (biotic or abiotic).
The examiner respectfully argues that Ru discloses the ability to resist disease, drought, lodging, and hot and dry wind (pg. 2). Therefore, the method according to Ru affords the plants the ability to resist biotic and abiotic stressors (i.e., plant priming). Also, the instant specification does not disclose specific features required to distinguish the claimed plant priming composition from the compositions according to Ru. Ru discloses clear liquid fertilizer compositions comprising the same components as instantly claimed, wherein the compositions are applied to plants and give the plants the ability to resist biotic and abiotic stressors. Therefore, the compositions formulated according to Ru fall within the scope of the compositions formulated according to the instant claims.
Applicant further argues that Ru does not teach or suggest the subject matter recited in claims 45 and 46, namely, increased production of one or more plant priming biomarkers. Applicant asserts that Ru does not teach measuring, detecting, or otherwise evaluating the levels of any of the plant priming biomarkers recited in claim 46. The Office Action does not provide any technical evidence demonstrating that treatment with the compositions in the cited references necessarily and inevitably results in production - let alone increased production - of the recited compounds. Applicant argues that the cited references do not establish a causal relationship between the disclosed nutrient supplementation and fertilizer compositions and the production of the claimed biomarkers. They do not provide any teaching, suggestion, or scientific rationale linking the supplied micronutrients to the specific metabolic pathways required to produce the recited compounds. Absent such a nexus, inherency cannot be established.
The examiner respectfully argues that Ru discloses treating plants with a composition comprising zinc sulfate monohydrate, copper sulfate pentahydrate, and citric acid in the weight ratios and concentrations claimed, wherein the compositions improve growth and development of the plant and also provide the ability to resist disease, drought, lodging, and hot and dry wind, i.e., plant priming (pg. 2). Application of the compositions according to Ru will inherently prime the plant against biotic and abiotic stress and increase production of one or more plant priming biomarkers, including one or more biomarkers listed in instant claim 46.
The examiner respectfully points out the following from MPEP 2112: “The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus, the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). In In re Crish, 393 F.3d 1253, 1258, 73 USPQ2d 1364, 1368 (Fed. Cir. 2004), the court stated that “just as the discovery of properties of a known material does not make it novel, the identification and characterization of a prior art material also does not make it novel.”
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 31, 33-34 and 45-46 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-11 and 13 of copending Application No. 18/834,973. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘973 Application claims a method of priming a tomato plant against abiotic stress factors or biotic stress factors comprising treating the plant with a composition comprising zinc, copper and acid, wherein the ratio of copper to zinc is between 1:2 and 1:20. The species of tomato is within the scope of the instantly claimed plant. The ‘973 Application further claims that the composition comprises zinc sulfate monohydrate and copper sulfate pentahydrate.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant requests that these rejections be held in abeyance until the claims in the present application are found to be otherwise allowable. Therefore, the rejection is maintained.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nathan W Schlientz whose telephone number is (571)272-9924. The examiner can normally be reached 10:00 AM to 6:00 PM, Monday through Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached on (571) 272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.W.S/Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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