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 .
Status of the Claims
New claim 95 have been added. Claims 168,176-183,185 and 187-195 is pending. Claims 168,180-183 and 185 have been withdrawn.
Claims 176-179 and 187-195 are currently under examination.
All rejections not reiterated have been withdrawn.
Information Disclosure Statement
Initialed and dated copies of Applicants’ information disclosure statement (IDS) filed on
07/22/2025, 09/30/2025, 12/08/2025, 1/13/2026 are attached to the instant Office action. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
Claim Rejections - 35 USC § 102
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 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 176-179, 187-188, 190, and 194-195 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Li et al. (CN1403072, Published 03/19/2003; cited in the IDS filed 09/30/2025).
The preamble of the claims each recite an intended use for the claimed composition and are not deemed to add any further structural limitations to the instant invention. See MPEP 2111.02(II).
The claims are drawn to a composition for inhibiting growth of a microbial pathogen of a plant, comprising: a nitrogen-bearing macrocyclic compound which is a singlet oxygen photosensitizer; a chelating agent to increase permeability of the microbial pathogen to the nitrogen-bearing macrocyclic compound; and a carrier fluid, wherein upon applying the composition to the plant and exposing the plant to light, the nitrogen-bearing macrocyclic compound is activated and generates reactive singlet oxygen species wherein the nitrogen-bearing macrocyclic compound is chlorophyllin.
Regarding claims 176-177, and 188, Li discloses in Example 1: Globulin G 3.5 g, Licorrhizin sweet 1.0 g, bacteriocide-12 3.5 g, CPP. 2.5 g, aminoalkyl siloxane 3.5 g, sugar alcohol 2.5 g, glycine acid 1.0 g, sodium trimetaphosphate 3.5 g, sodium copper chlorophyllin 2.5 g (i.e., nitrogen-bearing macrocyclic compound), EDTA 3.5 g (i.e., aminopolycarboxylic acid chelating agent; metal-free; non-polymeric), gallucculent 2.0 g, plant safflower 2.0 g, foaming agent 2.0 g, preservative 3.0 g, dispersant 2.0 g, glycerin 1.5 g, appropriate amount of flavor, distilled water 61.5 g (i.e., carrier fluid) (Example 1). The preponderance of the evidence supports the conclusion that the Li’s sodium copper chlorophyllin which is a nitrogen-bearing macrocyclic compound would inherently activate and generate reactive singlet oxygen species when exposed to light. Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an Applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of the claimed product. See In re Ludtke, 441 F.2d 660, 169 USPQ 563 (CCPA 1971). Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. In re Best, Bolton, and Shaw, 195 USPQ 430, 433 (CCPA 1977) citing In re Brown, 59 CCPA 1036, 459 F.2d 531, 173 USPQ 685 (1972).
Regarding claims 178-179, Li discloses in Example 1 aminoalkyl siloxane 3.5 g (i.e., polymeric surfactant) and sodium trimetaphosphate 3.5g (i.e., surfactants).
Regarding claims 187 and 195, with regards to the limitations of wherein the plant is a non-woody crop plant, a woody plant or a turfgrass and wherein the composition is formulated for application to the plant for the inhibition of a bacterial pathogen, the examiner points out that these limitations are method step of an intended use of the composition to be applied to plants and formulated for the application to the plant as the claims are directed to the composition.
Regarding claims 190 and 194, Li discloses Example 1 sodium copper chlorophyllin 2.5 g (i.e., nitrogen-bearing macrocyclic compound), EDTA 3.5 g (i.e., aminopolycarboxylic acid chelating agent; metal-free; non-polymeric). 2.5g of sodium copper chlorophyllin divided by 3.5g of EDTA gives you a ratio of 0.7:1. The preponderance of the evidence supports the conclusion that the composition comprising a chelating agent and the nitrogen-bearing macrocyclic compound would inherently be provided in amounts that are synergistically effective to inhibit growth of a bacterial pathogen of the plant. Although the synergistic effect is not disclosed exactly as claimed, the amounts of the chelating agent and nitrogen-bearing macrocyclic compound in Example 1’s composition, the composition would inherently provide a synergistic effect.
Accordingly, Li anticipated the claimed invention.
Claims 176-177, 187-190, 192-195 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Kapiotis et al. (Free Radical Research, 39:11, 1193-1202, Published 11/01/2005).
The preamble of the claims each recite an intended use for the claimed composition and are not deemed to add any further structural limitations to the instant invention. See MPEP 2111.02(II).
The claims are drawn to a composition for inhibiting growth of a microbial pathogen of a plant, comprising: a nitrogen-bearing macrocyclic compound which is a singlet oxygen photosensitizer; a chelating agent to increase permeability of the microbial pathogen to the nitrogen-bearing macrocyclic compound; and a carrier fluid, wherein upon applying the composition to the plant and exposing the plant to light, the nitrogen-bearing macrocyclic compound is activated and generates reactive singlet oxygen species wherein the nitrogen-bearing macrocyclic compound is chlorophyllin.
Regarding claims 176-177, 188-189, and 193, Kapiotis discloses binding of hemin and chlorophyllins to isolated lipoproteins, LDL or HDL (both 0.5 mg/ml) was incubated in the
absence or presence of hemin, Cu-CHL or Mg-CHL for 30 min at room temperature, wherein Mg-CHL (i.e., magnesium chlorophyllin) is in the amount of 100 or 50 µmol/l and 20 µmol/l EDTA was added to avoid lipoprotein oxidation during incubation (page 1195, binding of hemin and chlorophyllins to isolated lipoproteins). Kapiotis also discloses Figure 2 in column 6 and 7 the presence of Mg-CHL (i.e., magnesium chlorophyllin) in the amount of 100 or 50 µmol/l and EDTA in the amount of 20 µmol/l in a carrier fluid (page 1197, Figure 2). The preponderance of the evidence supports the conclusion that a carrier fluid is inherently present in the composition of Kapiotis as the discloses per milliliter and per liter of LDL or HDL, Mg-CHL and EDTA and Kapiotis also discloses in Figure 2 that the binding of the compounds was indicated by alteration of the relative electrophoretic mobility which was done using gel electrophoresis which also requires a carrier fluid.
Regarding claims 187 and 195, with regards to the limitations of wherein the plant is a non-woody crop plant, a woody plant or a turfgrass and wherein the composition is formulated for application to the plant for the inhibition of a bacterial pathogen, the examiner points out that these limitations are method step of an intended use of the composition to be applied to plants and formulated for the application to the plant as the claims are directed to the composition.
Regarding claims 190 and 192, Kapiotis discloses the presence of Mg-CHL (i.e., magnesium chlorophyllin) in the amount of 100 or 50 µmol/l and EDTA in the amount of 20 µmol/l, therefore the weight ratio of the nitrogen bearing macrocyclic compound to the chelating agent is 5:1(100 µmol/l divided by 20 µmol/l) and 2:1 (50 µmol/l divided by 20 µmol/l) (page 1195, binding of hemin and chlorophyllins to isolated lipoproteins).
Regarding claim 194, Kapiotis discloses the presence of Mg-CHL (i.e., magnesium chlorophyllin) in the amount of 100 or 50 µmol/l and EDTA in the amount of 20 µmol/l, therefore the weight ratio of the nitrogen bearing macrocyclic compound to the chelating agent is 5:1(100 µmol/l divided by 20 µmol/l) and 2:1 (50 µmol/l divided by 20 µmol/l) (page 1195, binding of hemin and chlorophyllins to isolated lipoproteins). The preponderance of the evidence supports the conclusion that the composition comprising a chelating agent and the nitrogen-bearing macrocyclic compound would inherently be provided in amounts that are synergistically effective to inhibit growth of a bacterial pathogen of the plant. Although the synergistic effect is not disclosed exactly as claimed, the amounts of the chelating agent and nitrogen-bearing macrocyclic compound in Figure 2’s composition taught by Kapiotis, the composition would inherently provide a synergistic effect.
Accordingly, Kapiotis anticipated the claimed invention.
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:
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.
Claims 176-179, 187-188, 190-191, and 194-195 are rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (CN1403072, Published 03/19/2003; cited in the IDS filed 09/30/2025).
The preamble of the claims each recite an intended use for the claimed composition and are not deemed to add any further structural limitations to the instant invention. See MPEP 2111.02(II).
Applicant’s invention
Applicants claims are drawn to The claims are drawn to a composition for inhibiting growth of a microbial pathogen of a plant, comprising: a nitrogen-bearing macrocyclic compound which is a singlet oxygen photosensitizer; a chelating agent to increase permeability of the microbial pathogen to the nitrogen-bearing macrocyclic compound; and a carrier fluid, wherein upon applying the composition to the plant and exposing the plant to light, the nitrogen-bearing macrocyclic compound is activated and generates reactive singlet oxygen species wherein the nitrogen-bearing macrocyclic compound is chlorophyllin.
Determination of the scope and the content of the prior art
(MPEP §2141.01)
Regarding claims 176-177, and 188, Li discloses in Example 1: Globulin G 3.5 g, Licorrhizin sweet 1.0 g, bacteriocide-12 3.5 g, CPP. 2.5 g, aminoalkyl siloxane 3.5 g, sugar alcohol 2.5 g, glycine acid 1.0 g, sodium trimetaphosphate 3.5 g, sodium copper chlorophyllin 2.5 g (i.e., nitrogen-bearing macrocyclic compound), EDTA 3.5 g (i.e., aminopolycarboxylic acid chelating agent; metal-free; non-polymeric), gallucculent 2.0 g, plant safflower 2.0 g, foaming agent 2.0 g, preservative 3.0 g, dispersant 2.0 g, glycerin 1.5 g, appropriate amount of flavor, distilled water 61.5 g (i.e., carrier fluid) (Example 1). The preponderance of the evidence supports the conclusion that the Li’s sodium copper chlorophyllin which is a nitrogen-bearing macrocyclic compound would inherently activate and generate reactive singlet oxygen species when exposed to light. Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an Applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of the claimed product. See In re Ludtke, 441 F.2d 660, 169 USPQ 563 (CCPA 1971). Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. In re Best, Bolton, and Shaw, 195 USPQ 430, 433 (CCPA 1977) citing In re Brown, 59 CCPA 1036, 459 F.2d 531, 173 USPQ 685 (1972).
Regarding claims 178-179, Li discloses in Example 1 aminoalkyl siloxane 3.5 g (i.e., polymeric surfactant) and sodium trimetaphosphate 3.5g (i.e., surfactants).
Regarding claims 187 and 195, with regards to the limitations of wherein the plant is a non-woody crop plant, a woody plant or a turfgrass and wherein the composition is formulated for application to the plant for the inhibition of a bacterial pathogen, the examiner points out that these limitations are method step of an intended use of the composition to be applied to plants and formulated for the application to the plant as the claims are directed to the composition.
Regarding claims 190 and 194, Li discloses Example 1 sodium copper chlorophyllin 2.5 g (i.e., nitrogen-bearing macrocyclic compound), EDTA 3.5 g (i.e., aminopolycarboxylic acid chelating agent; metal-free; non-polymeric). 2.5g of sodium copper chlorophyllin divided by 3.5g of EDTA gives you a ratio of 0.7:1. The preponderance of the evidence supports the conclusion that the composition comprising a chelating agent and the nitrogen-bearing macrocyclic compound would inherently be provided in amounts that are synergistically effective to inhibit growth of a bacterial pathogen of the plant. Although the synergistic effect is not disclosed exactly as claimed, the amounts of the chelating agent and nitrogen-bearing macrocyclic compound in Example 1’s composition, the composition would inherently provide a synergistic effect.
Ascertainment of the Difference Between Scope the Prior Art and the Claims
(MPEP §2141.02)
Li does not explicitly each wherein the weight ratio of the nitrogen-bearing macrocyclic compound to the chelating agent is between 1:1 and 1:10.
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
It would have been prima facie obvious to one of ordinary skill in the art at the time of filing to have the weight ratio of the nitrogen bearing macrocyclic compound to the chelating agent to be between 1:1 and 1:10 in Li’s floride-free full biological foam. Li teaches in Example 1: Globulin G 3.5 g, Licorrhizin sweet 1.0 g, bacteriocide-12 3.5 g, CPP. 2.5 g, aminoalkyl siloxane 3.5 g, sugar alcohol 2.5 g, glycine acid 1.0 g, sodium trimetaphosphate 3.5 g, sodium copper chlorophyllin 2.5 g (i.e., nitrogen-bearing macrocyclic compound), EDTA 3.5 g (i.e., aminopolycarboxylic acid chelating agent; metal-free; non-polymeric), gallucculent 2.0 g, plant safflower 2.0 g, foaming agent 2.0 g, preservative 3.0 g, dispersant 2.0 g, glycerin 1.5 g, appropriate amount of flavor, distilled water 61.5 g (i.e., carrier fluid) (Example 1). Li further teaches in claim 2 that the sodium coper chlorophyllin can be in an amount of 2-4 and EDTA can be in an amount of 2-3 (claim 2). Therefore, it would have been obvious to optimize the concentration ranges as a starting point to have a 1:1 ratio because it is obvious to optimize for efficacy of the nitrogen bearing macrocyclic compound and the chelating agent. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 (II) (A).Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). "A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994). MPEP 2123 (I). The Examiner also points out that the Applicants have not shown or identify any secondary consideration demonstrating criticality or anything unexpected about the weight ratio of two known prior art agents the nitrogen-bearing compound and the chelating agent.
Response to Arguments
Applicants arguments, filed 10/17/2025, with respect to the rejection(s) of claim(s) under 35 USC 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is set forth above.
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 169, 176-179, 187-192, and 194 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 142, 144-157, 159, 160, and 162-164 of copending Application No. 17/431,306 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the application claims render obvious the instant claims
Inter alia the claims of ‘306 application embrace a composition for controlling insect pests on a plant, comprising: a nitrogen-bearing macrocyclic compound which is a photosensitizer that generates reactive oxygen species in the presence of light, the photosensitizer being selected from the group consisting of a porphyrin, a reduced porphyrin and a mixture thereof and wherein the nitrogen-bearing macrocyclic compound is a chlorophyllin; a chelating agent which is an aminopolycarboxylic acid compound or an agriculturally acceptable salt thereof; and a carrier fluid. The nitrogen-bearing macrocyclic compound is complexed with a metal, including Mg(II). The nitrogen-bearing macrocyclic compound and the chelating agent are present in a relative proportion between about 10:1 and about 1:50 by weight. The aminopolycarboxylic acid compound is selected from compounds including ethylenediaminetetraacetic acid (EDTA). The composition further comprises a surfactant, selected from the group consisting of an ethoxylated alcohol, a polymeric surfactant, a fatty acid ester, a polyethylene glycol, an ethoxylated alkyl alcohol, a monoglyceride, an alkyl monoglyceride and a mixture thereof (e.g., claim 154). While the ‘306 application embraces controlling insect pests vs microbial pathogen of a plant, such uses recite intended uses of the compositions; since the composition of ‘306 application is directed to the same components as those instantly claimed, it would be capable of the same intended use(s), absent evidence otherwise. Therefore, the claims are drawn to the same subject matter and composition components. The specification of the ‘306 application defines in paragraph [0028] that the plant is non-woody crop plant, a woody plant, an ornamental plant or a turfgrass.
Regarding claims 169, 190-192, and 194 it would have been prima facie obvious to one of ordinary skill in the art to use ‘306’s composition containing nitrogen-bearing macrocyclic compound to chelating agent in the instantly claimed ratio of nitrogen-bearing macrocyclic compound to chelating agent (instant claims 190-191) and molar ratio (instant claim 192). The ‘306 application the nitrogen-bearing macrocyclic compound and the chelating agent are present in a relative proportion between about 10:1 and about 1:50 by weight. It is obvious to use the concentration ranges as a starting point because it is obvious to optimize for efficacy of porphyrin and the chelating agent. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 (II) (A).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 186 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 142, 144-157, 159, 160, and 162-164 of copending Application No. 17/431,306 in of Hei et al. (US20030194433A1, Published 10/16/2003).
The relevant limitations of ‘306 application are set forth above.
The claims do not recite wherein the microbial pathogen comprises at least one of a fungal pathogen and a bacterial pathogen. However, Hei teaches an antimicrobial composition containing a singlet oxygen-generating agent and a lubricant exhibit very effective antimicrobial activity against a variety of organisms, including Gram-positive bacteria, Gram-negative bacteria, fungi and yeast (abstract). Hei continues to teach wide variety of sensitizers can be employed in photochemical generation of singlet oxygen like porphyrin derivatives (i.e., nitrogen-bearing macrocyclic compound) (paragraph [0015]). Hei also teaches the antimicrobial composition can contain at least one chelating agent such as ethylenediamine tetraacetate (EDTA) that can synergistically increase the level of antimicrobial activity (i.e., aminopolycarboxylic acid compound) (paragraph [0045]). It would have been prima facie obvious to use the composition of ‘306 for inhibiting growth of microbial pathogens of a plant, wherein the microbial pathogens comprise at least one of a fungal pathogen and a bacterial pathogen because Hei teaches an antimicrobial composition containing a singlet oxygen-generating agent and a lubricant exhibit very effective antimicrobial activity against a variety of organisms, including Gram-positive bacteria, Gram-negative bacteria, fungi and yeast (abstract), wherein the sensitizers can be employed in photochemical generation of singlet oxygen like porphyrin derivatives (i.e., nitrogen-bearing macrocyclic compound) and the composition further comprises at least one chelating agent such as ethylenediamine tetraacetate (EDTA) that can synergistically increase the level of antimicrobial activity (i.e., aminopolycarboxylic acid compound) (paragraph [0045]). Therefore, one would have recognized the composition of ‘306 application as suitable to inhibit growth of microbial pathogens of a plant, wherein the microbial pathogens comprise at least one of a fungal pathogen and a bacterial pathogen.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicants comment on pages 8-9 of the remarks filed 10/17/2025 requesting that the nonstatutory double patenting rejections be held in abeyance is noted.
Regarding Applicants argument that the double patenting rejections should be held in abeyance, the double patenting rejections apply to the claims as they are currently written, therefore, these double patenting rejections are maintained. Further, Applicants' request to hold the rejection in abeyance is not a proper response to a rejection. Rather, a request to hold a matter in abeyance may only be made in response to an objection or requirements as to form (see MPEP 37 CFR 1.111(b) and 714.02). Thus, the rejection is maintained in the absence of a terminal disclaimer.
Conclusion
No claims are allowed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AFUA BAMFOAA BOATENG whose telephone number is (703)756-1358. The examiner can normally be reached Monday - Friday 9:00am - 5:00pm.
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AFUA BAMFOAA BOATENGExaminer, Art Unit 1617 /ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614