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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 4/8/2026 has been entered.
Status of Action/Claims
Receipt of Remarks/Amendments filed on 4/8/2026 is acknowledged. Claims 1-2, 4-5, 9-10 and 12-28 are currently pending. Claims 14-28 have been withdrawn. Accordingly, claims 1-2, 4-5, 9-10 and 12-13 are currently under examination.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Specification
The disclosure is objected to because of the following informalities:
In paragraphs 0015, 0016 and 0054 of instant specification, there appears to be a typo in the term “harzinolide”. The term “harzinolide” should recite “harzianolide”.
Appropriate correction is required.
Claim Objections
Claim 1 is objected to because of the following informalities:
In claim 1, line 8, there appears to be a typo in the term “harzinolide”. The term “harzinolide” should recite “harzianolide”.
Appropriate correction is required.
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.
Claims 1-2, 4, 9-10 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Harman (US2012/0096598 A1) in view of Lei et al. (WO 2013/078365 A1; May 30, 2013) (previously cited), Bowe (WO 00/78142 A2; 12/28/2000) and Chen (Plant Physiology and Biochemistry 73 (2013) 106-113).
Harman throughout the reference discloses Trichoderma strains that enhance resistance of plants to abiotic stresses and unfavorable plant growth condition and increase plant growth (abstract).
Harman teaches method of enhancing growth of plant and enhancing resistance of plants to abiotic stresses comprising contacting Trichoderma strain with a plant or plant seed under conditions effective for the Trichoderma strain to colonize the roots of the plant (claim 1, 14, abstract). Harman teaches the Trichoderma strain is selected from Trichoderma atroviride, Trichoderma harzianum strain RR17Bc and Trichoderma harzianum strain F11 Bab (claim 1). Harman teaches selecting one or more plants wherein the one or more plants include turfgrass, alfalfa, rice and wheat (claim 8). The Trichoderma strain is provided as a granule, dust, powder or liquid suspension (claim 4). Herman requires only the Trichoderma strain as the active component in the formulation comprising the microbe. Harman also teaches the contacting or application is carried out by broadcast application, liquid or dry in-furrow application, spray application, irrigation or coating the plant (claim 5). Example 7 discloses improved growth of wheat plant wherein the seeds were treated with a fungicide Dividend (difenoconazole) (i.e., the claimed control agent since fungicide is a pesticide). The seeds were also treated with the Trichoderma strain or not treated with the strain. The treatment of wheat with the Trichoderma strain increased growth even when applied with a fungicide, thus, the Trichoderma strain enhanced resistant of the plant to abiotic stress (fungicide) and increased plant growth. (see: Example 7; para 0086-0087). Harman teaches the Trichoderma strains disclosed provide resistance to plant diseases, abiotic stresses, and/or increase plant growth. Trichoderma strains suitable for the present invention are strains with strong abilities to colonize roots. This ability is known as rhizosphere competence, which is used herein to describe those organisms capable of colonizing the root surface or the surface plus surrounding soil volume (rhizoplane and rhizosphere, respectively), when applied as a seed or other point source at the time of planting in absence of bulk flow of water. (Field of Invention; para 0005; 0039).
The teachings of Harman have been set forth above.
Harman does not expressly teach wherein the Trichoderma microbe is specifically Trichoderma viride strain K5 (NRRL B-50520). However, Lei et al. cures this deficiency.
Lei also teaches method of enhancing growth of plant and enhancing resistance of plants to stresses. Lei teaches microbes and specifically Trichoderma viride (NRRL B-50520) which can markedly enhance plant growth and improve resistance to abiotic stresses. Trichoderma strains suitable for the present invention (e.g., Trichoderma viride, Trichoderma virens, Trichoderma harzianum, and Trichoderma atroviride) are strains with strong abilities to colonize roots. This ability is known as rhizosphere competence, which is used herein to describe those organisms capable of colonizing the root surface or the surface plus surrounding soil volume (rhizoplane and rhizosphere, respectively), when applied as a seed or other point source at the time of planting in absence of bulk flow of water. (Abstract; para 0021; 0035).
As discussed supra, Harman teaches treating a plant with a fungicide and Trichoderma strain (microbe). Harman does not expressly teach applying the control agent such as a fungicide to the plants that have been pre-exposed to the microbe containing formulation. However, this deficiency is cured by Bowe.
Bowe throughout the reference teaches methods for improving the resistance of plants to chemical stress such as by herbicides, fungicides and fertilizers (see: Abstract; Page 4). Bowe teaches an aqueous preparation of the resistance inducing compound is applied before, after or together with herbicides or fungicides. (see: Page 7).
Harman, Lei and Bowe do not teach wherein the microbe formulation includes a metabolite of the at least one microbe . However, Chen cures this deficiency.
Chen teaches harzianolide is a metabolite of Trichoderma species which significantly promoted tomato seedling growth and elicited systemic resistance. Trichoderma secondary metabolites may influence the early stages of plant growth through better root development for the enhancement of root length and tips. Harzianolide metabolite increased the activity of some defense-related enzymes to response to oxidative stress. Further experiment showed that a subsequent challenge of harzianolide-pretreated plants with the pathogen Sclerotinia sclerotiorum resulted in higher systemic resistance. These results indicate that secondary metabolites of Trichoderma spp., like harzianolide, play a novel role in plant growth regulation and plant defense responses. (see e.g. Title, Abstract, Discussion; Entire Document).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Harman to incorporate the teachings of Lei and include Trichoderma viride (NRRL B-50520) as the microbe in the formulation of Harman. As discussed supra, Harman teaches the Trichoderma strains disclosed provide resistance to plant diseases, abiotic stresses, and/or increase plant growth. Trichoderma strains suitable for the present invention are strains with strong abilities to colonize roots. This ability is known as rhizosphere competence, which is used herein to describe those organisms capable of colonizing the root surface or the surface plus surrounding soil volume (rhizoplane and rhizosphere, respectively), when applied as a seed or other point source at the time of planting in absence of bulk flow of water. (Field of Invention; para 0005; 0039). Lei teaches microbes and specifically Trichoderma viride (NRRL B-50520) can markedly enhance plant growth and improve resistance to abiotic stresses. Trichoderma strains suitable for the present invention (e.g., Trichoderma viride, Trichoderma virens, Trichoderma harzianum, and Trichoderma atroviride) are strains with strong abilities to colonize roots. This ability is known as rhizosphere competence, which is used herein to describe those organisms capable of colonizing the root surface or the surface plus surrounding soil volume (rhizoplane and rhizosphere, respectively), when applied as a seed or other point source at the time of planting in absence of bulk flow of water. (Abstract; para 0021; 0035). The Trichoderma microbes taught by Harman and the Trichoderma viride (NRRL B-50520) taught by Lei are both taught to enhance plant growth and improve resistance to abiotic stresses, with strong abilities to colonize roots or having rhizosphere competence. Thus, it would have been obvious to one skilled in the art to further include Trichoderma viride (NRRL B-50520) or substitute the Trichoderma strains of Harman with Trichoderma viride (NRRL B-50520) as both are taught to have functional equivalence. As a general principle it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose, the idea of combining them flows logically from their having been individually taught in the prior art. See In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) MPEP 2144.06.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Harman to incorporate the teachings of Bowe and apply the microbe (Trichoderma) to the plant before exposing the plant to the control agent (fungicide or herbicides) as suggested in Bowe. As discussed supra, Harman teaches the microbes such as Trichoderma strains can markedly enhance plant growth and improve resistance to abiotic stresses. Harman also teaches that Trichoderma can essentially re-program plant genes and protein expression which results in benefits to plant growth and in resistance to biotic and abiotic stresses (para 0005). Therefore, while the focus of Harman is on abiotic stress, there is still a reasonable expectation of success for Trichoderma resulting in resistance to biotic and abiotic stress. Bowe also teaches methods for improving the resistance of plants to chemical stresses (i.e., biotic or abiotic stress) and Bowe teaches it was known in the art that preparations of the resistance inducing compound can be applied before, after or together with the stress inducing agent. Thus, absence any unexpected results, it would have been obvious to one skilled in the art to readily envision utilizing either method step.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the teachings of Harman and Chen and include a metabolite such as harzianolide taught by Chen into the microbe formulation of Harman. One would have been motivated to do so because, as discussed supra, Harman teaches the microbes such as Trichoderma strains can markedly enhance plant growth, improve resistance to abiotic stresses and increase plant growth and development, wherein suitable plant include tomato plant. As discussed supra, Chen teaches harzianolide is a metabolite of Trichoderma species which significantly promoted tomato seedling growth and elicited systemic resistance. Challenge of harzianolide-pretreated plants with the pathogen Sclerotinia sclerotiorum resulted in higher systemic resistance. Secondary metabolites of Trichoderma spp., like harzianolide, play a novel role in plant growth regulation and plant defense responses. Thus, it would have been obvious to include the harzianolide metabolite taught by Chen in the method of Harman because Trichoderma species and metabolite such as harzianolide were both known to be useful for providing plant growth and improve resistance. As a general principle it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose, the idea of combining them flows logically from their having been individually taught in the prior art. See In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) MPEP 2144.06.
From the combined teaching of the cited references, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Claims 5 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Harman (US2012/0096598 A1) in view of Lei et al. (WO 2013/078365 A1; May 30, 2013) (previously cited), Bowe (WO 00/78142 A2; 12/28/2000) and Chen (Plant Physiology and Biochemistry 73 (2013) 106-113) as applied to claims 1-2, 4, 9-10 and 12 above, and further in view of PennState (PennState Extension, Weed Management in Turf, Sep. 21, 2006).
The teachings of Harman, Lei, Bowe and Chen have been set forth above.
Harman, Lei, Bowe and Chen do not teach wherein the control agent is specifically a control agent recited in claim 5 or a herbicide that targets plant protein, biochemical, enzymatic, and/or metabolic function as recited in claim 13. However, this deficiency is cured by PennState.
PennState throughout the reference teaches weed management in turf grass. PennState teaches weeds are undesirable because they disrupt turf uniformity and compete with desirable grass species for moisture, light and nutrients. (see: Pg. 1, Weed Life Cycles). PennState teaches using herbicides that kill or alter the normal growth of weeds. Particularly, PennState discloses using herbicides such as Benefin, which act by forming a chemical barrier in the soil and the barrier prevents grass like weeds from emerging and developing normally. (see: pg. 18). PennState also teaches using glyphosate as an herbicide to control weed as it leaves no harmful soil residual. (e.g., pg. 20-21).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the teachings of Harman, Lei, Bowe, Chen and PennState and include a herbicide such as Benefin or glyphosate in the method taught by Harman. As discussed supra, Harman teaches the formulations are contacted with plants or plant seeds wherein the plant or plant seed selected includes turf grass. PennState teaches weeds are undesirable in turf grass because they disrupt turf uniformity and compete with desirable grass species for moisture, light and nutrients. PennState teaches using herbicides such as Benefin and glyphosate that kill or alter the normal growth of weeds. Therefore, one skilled in the art would have been motivated to use a herbicide such as Benefin and glyphosate when applying the formulation on turfgrass to control weed.
From the combined teaching of the cited references, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Response to Arguments
Applicant again argued the described benefits of the strains Harman teaches are species and strain specific and these species and strains do not include the elected species and strain of the present application.
In response, as discussed supra, Harman teaches the Trichoderma strains disclosed provide resistance to plant diseases, abiotic stresses, and/or increase plant growth. Trichoderma strains suitable for the present invention are strains with strong abilities to colonize roots. This ability is known as rhizosphere competence, which is used herein to describe those organisms capable of colonizing the root surface or the surface plus surrounding soil volume (rhizoplane and rhizosphere, respectively), when applied as a seed or other point source at the time of planting in absence of bulk flow of water. (Field of Invention; para 0005; 0039). Lei teaches microbes and specifically Trichoderma viride (NRRL B-50520) can markedly enhance plant growth and improve resistance to abiotic stresses. Trichoderma strains suitable for the present invention (e.g., Trichoderma viride, Trichoderma virens, Trichoderma harzianum, and Trichoderma atroviride) are strains with strong abilities to colonize roots. This ability is known as rhizosphere competence, which is used herein to describe those organisms capable of colonizing the root surface or the surface plus surrounding soil volume (rhizoplane and rhizosphere, respectively), when applied as a seed or other point source at the time of planting in absence of bulk flow of water. (Abstract; para 0021; 0035). The Trichoderma microbes taught by Harman and the Trichoderma viride (NRRL B-50520) taught by Lei are both taught to enhance plant growth and improve resistance to abiotic stresses, with strong abilities to colonize roots or having rhizosphere competence. Thus, it would have been obvious to one skilled in the art to further include Trichoderma viride (NRRL B-50520) or substitute the Trichoderma strains of Harman with Trichoderma viride (NRRL B-50520) as both are taught to have functional equivalence and similar benefits. As a general principle it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose, the idea of combining them flows logically from their having been individually taught in the prior art. See In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) MPEP 2144.06.
Applicant argued the amended claims require formulation having as its only active components both the specific strain Trichoderma species and a metabolite of the at least one microbe selected from Hydtra 1, harzinolide and 1-octen-3ol. No such combination is taught by Harman.
In response, applicant’s attention is respectfully drawn to the modified 103 rejection above wherein Chen renders obvious the inclusion of harzianolide in combination with Trichoderma species. As discussed supra, Harman teaches the microbes such as Trichoderma strains can markedly enhance plant growth, improve resistance to abiotic stresses and increase plant growth and development, wherein suitable plant include tomato plant. As discussed supra, Chen teaches harzianolide is a metabolite of Trichoderma species which significantly promoted tomato seedling growth and elicited systemic resistance. Challenge of harzianolide-pretreated plants with the pathogen Sclerotinia sclerotiorum resulted in higher systemic resistance. Secondary metabolites of Trichoderma spp., like harzianolide, play a novel role in plant growth regulation and plant defense responses. Thus, it would have been obvious to include the harzianolide metabolite taught by Chen in the method of Harman because Trichoderma species and metabolite such as harzianolide were both known to be useful for providing plant growth and improve resistance.
Applicant argued that Lei teaches a formulation having at least two active components which include the microbes and a substrate acted upon by the microbe. The instant claims exclude the presence of the substrate that is acted upon by the microbe. Applicant also appear to argue that Lei teaches control agent is combined with the fertilizer (which includes the microbes) and instant claims require the microbe as the only active applied separately from control agent. (pages 12-14 of remarks).
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Specifically, the Lei reference is utilized as a secondary reference for its teachings that the Trichoderma strains (e.g., Trichoderma viride, Trichoderma virens, Trichoderma harzianum, and Trichoderma atroviride) are strains with strong abilities to colonize roots. This ability is known as rhizosphere competence, which is used herein to describe those organisms capable of colonizing the root surface or the surface plus surrounding soil volume (rhizoplane and rhizosphere, respectively) (Abstract; para 0021; 0035). Harman also teaches the Trichoderma strains suitable for the invention are strains with strong abilities to colonize roots. This ability is known as rhizosphere competence, which is used herein to describe those organisms capable of colonizing the root surface or the surface plus surrounding soil volume (rhizoplane and rhizosphere, respectively). Therefore, as mentioned previously, it would have been obvious to one skilled in the art to further include Trichoderma viride (NRRL B-50520) or substitute the Trichoderma strains of Harman with Trichoderma viride (NRRL B-50520) as both are taught to have functional equivalence and similar benefits.
Applicant argued that Bowe reference teaches a method for increasing the resistance of plant to a chemical stress caused by an herbicide, the method comprising treating the plant with prohexadione. It was argued that Bowe does not teach anything regarding the use of any microbes and thus there is no logical reason to combine the teachings Bowe.
In response, as discussed in the 103 rejection above, the Bowe reference teaches the application of resistance inducing compound to the plant can be done before exposing the plant to the control agent (fungicide or herbicides). The step of using a fungicide is already taught by Harman, but the example disclosed in Harman teaches applying the fungicide before applying Trichoderma. Therefore, Bowe is utilized to show that the order of steps can be reversed with the same effect and selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.). see: MPEP 2144.04(IV). Further, as discussed supra, Harman teaches the microbes such as Trichoderma strain can markedly enhance plant growth and improve resistance to biotic and abiotic stresses. Bowe also teaches methods for improving the resistance of plants to chemical stresses (i.e., biotic or abiotic stress) and Bowe teaches it was known in the art that preparations of the resistance inducing compound can be applied before, after or together with the stress inducing agent. While Bowe does not teach the resistance inducing compound is a microbe, Bowe does teach the resistance inducing compound can be applied before, after or together with the stress inducing agent. Therefore, it would have been obvious to one skilled in the art to readily envision utilizing either method step and selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.
Applicant’s arguments regarding Lorito are rendered moot since the modified 103 rejection above does not utilize Lorito.
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 1-2, 4-5, 9-10 and 12-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 of U.S. Patent No. US11229203B2 in view of Harman (US2012/0096598 A1), Lei et al. (WO 2013/078365 A1; May 30, 2013), Bowe (WO 00/78142 A2; 12/28/2000) and PennState (PennState Extension, Weed Management in Turf, Sep. 21, 2006).
‘203 claims a composition consisting of a microbial species in combination with one or more agricultural chemicals and optionally a microbe derived metabolite, wherein the microbial species added to the composition includes Trichoderma atroviride strain K5 (NRRL B-50520), wherein the microbe derived metabolite is selected from the group consisting of 6-pentyl pyrone, harzianic acid, hydtra 1, harzinolide, 1-octene-3-ol, wherein said one or more agricultural chemicals are selected from the group consisting of a fungicide, an insecticide, a nematicide, a bacteriocide, an herbicide, a surfactant, an emulsifier, a coloring agent, an inert conformulant, wherein, optionally, one or more of said microbial species, said microbe-derived metabolite or said agricultural chemicals are suspended in one or more liquids. ‘203 also claims a method of enhancing a crop, comprising applying the composition above by a method selected from the group consisting of onto a seed of the crop, in a furrow containing the crop, by a soil drench of soil containing the crop, by a root dip onto the crop, by a foliar spray onto the crop, by a side dress onto the crop, and mixtures thereof. As such, ‘203 necessarily teaches selecting one or more plant and wherein the microbe would necessarily colonize the root of the plant.
‘203 does not expressly teach applying the control agent (e.g. herbicide) to the plants that have been pre-exposed to the formulation comprising the microbes and metabolite. ‘203 also does not expressly teach the specific type of plant recited in the instant claims. ‘203 also does not expressly teach the control agent is a herbicide that targets plant protein, biochemical, enzymatic and/or metabolic function. However, Harman, Lei, Bowe and PennState cure these deficiencies.
The teachings of Harman, Lei, Bowe and PennState discussed supra are incorporated herein.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified ‘203 to incorporate the teachings of Bowe and Harman and apply the microbe (Trichoderma) to the plant before exposing the plant to the control agent (fungicide or herbicides) as suggested in Bowe. As discussed supra, Harman teaches the microbes such as Trichoderma strains can markedly enhance plant growth and improve resistance to abiotic stresses. Harman also teaches that Trichoderma can essentially re-program plant genes and protein expression which results in benefits to plant growth and in resistance to biotic and abiotic stresses (para 0005). Therefore, while the focus of Harman is on abiotic stress, there is still a reasonable expectation of success for Trichoderma resulting in resistance to biotic and abiotic stress. Bowe also teaches methods for improving the resistance of plants to chemical stresses (i.e., biotic or abiotic stress) and Bowe teaches it was known in the art that preparations of the resistance inducing compound can be applied before, after or together with the stress inducing agent. Thus, absence any unexpected results, it would have been obvious to one skilled in the art to readily envision utilizing either method step.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have applied the formulation of ‘203 to a plant such as the ones recited in the instant claims because Harman and Lei teach Trichoderma species can be applied to plants such as tomato plant and enhance growth of such plants.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the teachings of ‘203, Harman, Lei, Bowe and PennState and include a herbicide such as Benefin or glyphosate in the method and formulation taught by ‘203. As discussed supra, PennState teaches weeds are undesirable in turf grass because they disrupt turf uniformity and compete with desirable grass species for moisture, light and nutrients. PennState teaches using herbicides such as Benefin and glyphosate that kill or alter the normal growth of weeds. Therefore, one skilled in the art would have been motivated to use a herbicide such as Benefin and glyphosate when applying the formulation on turfgrass to control weed.
From the combined teaching of the cited references, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Conclusion
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/ALI S SAEED/ Examiner, Art Unit 1616
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