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 Action/Claims
Receipt of Remarks/Amendments filed on 5/14/2025 is acknowledged. Claims 1-2, 4-5, 7, 9-10 and 12-28 are currently pending. Claims 14-28 have been withdrawn. Accordingly, claims 1-2, 4-5, 7, 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Rejection(s) not reiterated from the previous Office Action are hereby withdrawn.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.
Note: This is a second non-final office action, that is prompted by applicant’s arguments and a further consideration of the instant claims, applicant’s disclosure and the prior art.
Withdrawn Rejections
Applicant’s arguments with respect to the 112(b) rejection have been fully considered and are persuasive. The 112(b) rejection has been withdrawn due to claim amendments.
New/Maintained Claim Objection(s) / Rejection(s)
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) and Bowe (WO 00/78142 A2; 12/28/2000).
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 under conditions effective for the Trichoderma strain to colonize the roots of the plant (claim 1, 14). 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., control agent). 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).
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.
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.
Claim 5 is 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) and Bowe (WO 00/78142 A2; 12/28/2000) as applied to claims 1-2, 4, 9-10 and 12 above, and further in view of Damicone (Oklahoma State University, Fungicide Resistance Management, Feb. 2017).
The teachings of Harman, Lei and Bowe have been set forth above.
While Harman discloses a control agent which is a fungicide such as difenoconazole, the combination of Harman, Lei and Bowe do not teach the specific control agents recited in instant claim 5. However, Damicone cures this deficiency.
Damicone discloses fungicides and the relative risk for developing resistance to fungicides in the fungal pathogens. Damicone teaches difenoconazole and ipconazole have a similar mode of action as fungicides wherein both have fungicidal effect through sterol synthesis. Ipconazole is taught to have a lower risk for developing resistance in the fungal pathogens. (see: Table 1).
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 and Damicone and replace difenoconazole with ipconazole as the fungicide. As discussed supra, Damicone teaches difenoconazole and ipconazole have a similar mode of action as fungicides wherein both have fungicidal effect through sterol synthesis. One skilled in the art would have been motivated to include Ipconazole because Ipconazole is taught to have a lower risk for developing resistance in the fungal pathogens.
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.
Claim 7 is 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) and Bowe (WO 00/78142 A2; 12/28/2000) as applied to claims 1-2, 4, 9-10 and 12 above, and further in view of Lorito (Crop Protection 92 (May 25, 2016) 176-181).
The teachings of Harman, Lei and Bowe have been set forth above.
Harman, Lei and Bowe do not teach wherein the microbe formulation includes a metabolite of the at least one microbe. However, Lorito cures this deficiency.
Lorito teaches metabolites of Trichoderma species improve yield and quality of plants and particularly grapes. Lorito teaches Trichoderma secondary metabolites 6-pentyl pyrone and harzianic acid provide fungal pathogen control in plants, plant growth, and induction of plant resistance to the pathogen. (see: 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 combined the teachings of Harman, Lei, Bowe and Lorito and include metabolites (e.g., 6-pentyl pyrone and harzianic acid) 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 and Lorito teaches Trichoderma secondary metabolites 6-pentyl pyrone and harzianic acid provide fungal pathogen control in plants, plant growth, and induction of plant resistance to the pathogen. 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.
Claim 13 is 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) and Bowe (WO 00/78142 A2; 12/28/2000) 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, and Bowe have been set forth above.
Harman, Lei and Bowe do not teach wherein the control agent is a herbicide that targets plant protein, biochemical, enzymatic, and/or metabolic function. 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).
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 and PennState and include a herbicide such as Benefin 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 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 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 argued that in response to the Restriction Requirement Applicant was required to elect a single species of microbe and Applicant elected the species Trichoderma viride, strain K5, which is the same strain as Trichoderma viride NRRL B-50520. The newly cited primary reference, Harman, does not teach use of any Trichoderma viride species. Applicant argued Harman teaches that the effects are produced specifically by use of one or more of three specific strains of Trichoderma. In particular, Harman teaches that the effective strains are Trichoderma atroviride strain WW10TC4; Trichoderma harzianum strain RR17Bc; Trichoderma harzianum strain FllBab; and combinations thereof. Harman teaches choice of strains is extremely important, because different strains have different effects on the plants and Harman states that the specific strains used are rhizosphere competent and that most Trichoderma strains are not, so most strains of Trichoderma will not provide the benefits described by Harman.
In response, applicant’s argument regarding restriction requirement is correct and as discussed supra, this is a second non-final office action, that is prompted by applicant’s arguments wherein Harman does not teach Trichoderma viride NRRL B-50520. Applicant’s attention is respectfully drawn to the revised/new ground of rejection in view of Lei et al. wherein Lei et al. renders obvious inclusion of Trichoderma viride NRRL B-50520. 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.
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 argued Lorito is directed to a method of controlling a plant pathogen and the present claim 1 is directed to a method of protecting a plant from the detrimental effects of a control agent on the plant itself. It is a significantly different problem and solution from what is disclosed in Lorito.
In response to applicant's argument, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, 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 and Lorito teaches Trichoderma secondary metabolites 6-pentyl pyrone and harzianic acid provide fungal pathogen control in plants, plant growth, and induction of plant resistance to the pathogen. 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.
Conclusion
This is a non-final office action.
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/ALI S SAEED/ Examiner, Art Unit 1616