DETAILED ACTION
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 .
This Action has been made FINAL.
Status of the Claims
The status of the claims filed 27 February 2026 is as follows:
Claims 1-6 are pending.
Claims 1-3 have been amended.
Claims 1-6 have been hereby examined.
Withdrawn Objections/Rejections
The rejection of claims 1-6 under 35 U.S.C. 102(a)(1) as being anticipated by over Larkindale et al. has been withdrawn in light of the amendments dated 27 February 2026.
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Larkindale et al. (2004. Thermotolerance and antioxidant systems in Agrostis stolonifera: Involvement of salicylic acid, abscisic acid, calcium, hydrogen peroxide, and ethylene. Journal of plant Physiology. 405-412).
Larkindale et al teach inducing thermotolerance (i.e. increase heat stress tolerance) by foliar application of 1-aminocyclopropant-1-carboxylic acid (ACC) in Agrostis stolonigera (turf grass) [entire document; abstract; page 406, col. 2, Table]. Larkindale et al teach that plants were allowed to grow for one month (developmental stage) in a greenhouse and sprayed with ACC [page 406, rt. col., paras. 3-4]. Larkindale et al teach applying ACC in a concentration of 100µM/L. The concentration of ACC was 100µM (the molecular weight of ACC in plants is approximately 101.1 grams/mole; ppm =µM X molecular weight/1000; ppm=100 X 101.1/1000 = 10.11 ppm of ACC. Larkindale et al teach spraying 50 mL of the ACC to the foliage of the plants three times daily for two days [page 406, right col., para. 3]. This exposes the plants to 30.33 ppm of ACC per day with a total of 60.66 ppm of ACC per the two-day period. The claim language does not preclude multiple applications to achieve the total concentration as recited in the claims.
Although the reference does not specifically teach the upper limits of from about 100 to about 1,000 parts per million, one skilled in the art at the time the invention was made would have been motivated to use such a concentration to improve heat stress tolerance in plants as a matter of routine optimization and experimentation. The adjustment of particular conventional working parameters such as concentration of ACC is deemed to be merely a matter of selection and routine optimization that is well within the purview of the skilled artisan. Accordingly, this type of modification would have been no more than an effort to optimize results. In the absence of any showing of criticality or unexpected results, the particular concentration of ACC is an obvious variation of what was taught in the prior art and could be arrived at during routine experimentation/optimization.
Furthermore, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical (see MPEP 2144.05).
Applicant’s Arguments dated 27 February 2026
Applicants urge that Larkindale does not disclose the newly amended effective amount of ACC; 30 to about 1,000 ppm.
These arguments have been carefully considered and are not deemed persuasive. Larkindale et al teach spraying 50 mL of the ACC to the foliage of the plants three times daily for two days [page 406, right col., para. 3]. This exposes the plants to 30.33 ppm of ACC per day with a total of 60.66 ppm of ACC over the two-day period. The claim language does not preclude multiple applications to achieve the total concentration as recited in the claims. Furthermore, if future amendments include effective amounts of ACC to be above the taught 60.66 ppm concentration, given the teachings of Larkindale et al and the knowledge at the time of the invention, one skilled in the art would have been motivated to use such a concentration to improve heat stress tolerance in plants as a matter of routine optimization and experimentation.
Conclusion
No claim is allowable.
THIS ACTION IS MADE FINAL. 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.
Examiner’s Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAREN M REDDEN whose telephone number is (571)270-0298. The examiner can normally be reached 730-6 Monday-Thursday.
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/KAREN M REDDEN/Primary Examiner, Art Unit 1661