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 .
A request for continued examination (RCE) 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/23/2026 has been entered.
Claims 1-8 and 11-14 are pending in this application.
Withdrawn ground of rejection
The outstanding ground of rejection under 35 USC 112(a) or 35 USC 112 (pre-AIA ), first paragraph, is withdrawn in view of the amendment to the claims filed on 6/23/2026, which deleted reference to strain numbers or identifiers.
35 USC 102(a)(1)
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 1-5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Vestberg et al. (hereinafter, Vestberg).
Vestberg discloses a mixture of DB11 + Gliomix (Table 1). DB11 is a liquid containing 2-5 x 107 conidia/ml of Trichoderma harzianum (page 247, right column). Gliomix is a powder containing 6 x 108 CFU/g of Gliocladium catenulatum, which is suspended in water at a rate of 1:50 w/v, which gives 1.2 x107 CFU/ml (page 248, left column). The application is to a peat growth substrate that had been treated with fertilizer, wherein T. harzianum is present at 5 x107 spores/liter of the substrate and G. catenulatum is present at 1.8 x 108 CFU/l. The ratio of T. harzianum to G. catenulatum in the substrate calculates to 1:3.6 (page 245, right column to page 246, left column; page 247, right column to page 248, left column). In Table 4, Vestberg shows that DB11 + Gliomix reduced shoot disease index against Phytophthora cactorum in strawberries. The mixture of T. harzianum and G. catenulatum is disclosed as one of the most promising biocontrol agents from Vestberg’s studies (page 256).
It is noted for the record that Gliocladium catenulatum is an older name for Clonostachys rosea. The document by Arena et al. is cited to show only that the Examiner’s position that Gliocladium catenulatum and Clonostachys rosea are synonyms for the same microorganism is correct (see e.g., page 7). Mention of Arena et al. is permissible in this ground of rejection because it merely establishes that the Examiner’s position as to the equivalence of the nomenclature is correct. MPEP 2131.01.
Claims 1-5 are thereby anticipated.
Applicant states in the response filed on 6/23/2026 that the claims should be allowed because the outstanding 112(a) issue has been resolved by the amendment to the claims filed on 6/23/2026 and since “no rejections under 35 U.S.C. §§ 102, 102, or 103 are pending.” However, Applicant is reminded of the prosecution history of this application – the prior art-based rejections set forth in the Office action of 1/19/2024 were withdrawn because the claims were amended to recite specific strains (which specific strain features have been deleted in this RCE due to new matter/written description issues). The same prior art rejections are applied again to the currently pending claims, both here and in the ground of rejection set forth below.
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.
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 1-8 and 11-14 are rejected under 35 U.S.C. 103 as being unpatentable over Vestberg in view of Leibmann et al. (WO 2015/011615), Mutawila et al., Arena et al., Primastop Biofungicide Powder label, and Tahvonen et al. (US 5,968,504).
Vestberg discloses a mixture of DB11 + Gliomix (Table 1). DB11 is a liquid containing 2-5 x 107 conidia/ml of Trichoderma harzianum DB11 (page 247, right column). Gliomix is a powder containing 6 x 108 CFU/g of Gliocladium catenulatum, which is suspended in water at a rate of 1:50 w/v, which gives 1.2 x107 CFU/ml (page 248, left column). The application is to a peat growth substrate that had been treated with fertilizer, wherein T. harzianum is present at 5 x107 spores/liter of the substrate and G. catenulatum is present at 1.8 x 108 CFU/l. The ratio of T. harzianum to G. catenulatum in the substrate calculates to 1:3.6 (page 245, right column to page 246, left column; page 247, right column to page 248, left column). In Table 4, Vestberg shows that DB11 + Gliomix reduced shoot disease index against Phytophthora cactorum in strawberries. The mixture of T. harzianum and G. catenulatum is disclosed as one of the most promising biocontrol agents from Vestberg’s studies (page 256). It is noted for the record that Gliocladium catenulatum is an older name for Clonostachys rosea. See Arena et al, infra.
Leibmann et al. (WO 2015/011615) disclose a mixture of T. harzianum strain SK-55 and another pesticide, which includes Clonostachys rosea f. cantenulata J1446, as fungicides (page 1, lines 5-18; page 8, line 6; page 16, line 24; page 20, line 31 to page 21, line 6; page 32, line 34 to page 33, line 13).1 Binary mixture can be mixed at a ratio including 1:4 to 4:1 (page 55, lines 8-13). See also claims 1-4, 7, 9, 10, 11 (addition of a further pesticide), and 12-15. Use on grapevines is disclosed (page 33, lines 10-11 and page 37, line 32, in view of the paragraphs that contain those lines).
Mutawila et al. (hereinafter, Mutawila) disclose that biocontrol effect of Trichoderma species has been demonstrated on a wide spectrum of grapevine trunk diseases and numerous other plant pathogens (page 104, right column). Grapevine trunk diseases are caused by pathogens such as fungi from the Botryosphaeriaceae family, and infections occur through any type of wound, of which pruning wounds are the principal ports of entry (page 104, left column). Pruning wound protection by biological agents provides a more sustainable long term control of trunk disease pathogens on wound surfaces (sentence bridging the two columns on page 104).
Biocontrol effect of Trichoderma species has been demonstrated on a wide spectrum of grapevine trunk diseases both in vitro and in vivo (page 104, right column). Mutawila discloses that, as of the publication of date of the Mutawila’s article in 2016, Trichoderma species represent the only biological active principle registered for the control of grapevine trunk disease (page 112, right column). Control by Trichoderma species can be a result of its antagonistic action against the pathogen, including mycoparasitism, secretion of mycolytic enzymes, competition for limited resources, and production of antibiotics, or from its interaction with the plant, wherein production of secondary metabolites that aid in Trichoderma species survival, symbiosis, and competition is central to its biocontrol activity (pages 104-105; see also page 109 for disclosure of efficacy of culture filtrates and volatiles produced by Trichoderma species). Mutawila discloses that T. harzianum is known to be a good grapevine wound colonizer, which inhibits grapevine trunk pathogens (page 105, left column). 6-pentyl-α-pyrone (6PP) was the secondary metabolite produced in the greatest quantity by T. harzianum (pages 107, 109-110), and 6PP is shown to inhibit mycelial growth of four grapevine trunk pathogens, including Neofusicoccum australe (Table 1 and Figure 5). Concentration of 6PP is disclosed as being likely to be higher at the zone of interaction between the pathogen and Trichoderma species (page 112, right column).
Arena et al. (hereinafter, Arena) disclose Clonostachys rosea as the current name for Gliocladium catenulatum strain J1446 (page 7), and its representative formulated product, PRESTOP, is a wettable powder containing nominal 4.6 x 1011 CFU/kg of C. rosea, with 2 x 1011 CFU/kg minimum content and 1 x 1012 CFU/kg maximum content (page 7). Crops on which C. rosea is used include grape, wheat, corn, potato, onion, turf, ornamentals, vegetables, and strawberries (id.). Application for fungal control can be by soil incorporation, drip irrigation, foliar spraying, and seed treatment (id.). Arena suggests that use in grapevines is known (page 15, 10th bullet).
Primastop Biofungicide Powder label (hereinafter, Primastop label), also known as Prestop Mix, contains 1 x 108 CFU/g of Gliocladium catenulatum strain J1446 (page 1), which is used for control of various fungal diseases in plants, including vine crops, flowers, ornamental plants and fruit vegetables (pages 3-4). Aqueous suspension is prepared from the powder by mixing the product with water, for example 100 grams of the product in 2 liters of water, which would produce 5 x 106 CFU/ml (page 4). See pages 4-6 for additional concentration strength disclosures and application amounts.
Tahvonen et al. (US 5,968,504; hereinafter, Tahvonen) disclose 5 different strains of Gliocladium catenulatum that can be used to inhibit fungal infection in a plant by applying to the plant or seeds thereof (claims 1-7, 12).
Vestberg discloses a composition comprising DB11 + Gliomix (Table 1). Therefore, claim 1 is directly readable on Vestberg’s compositon. Claim 1 is obvious over Vestberg because DB11 is a liquid containing 2-5 x 107 conidia/ml of Trichoderma harzianum (page 247, right column) and Gliomix is a powder containing 6 x 108 CFU/g of Gliocladium catenulatum, which is suspended in water at a rate of 1:50 w/v, which gives 1.2 x107 CFU/ml (page 248, left column).
Vestberg discloses application is to a peat growth substrate that had been treated with fertilizer, wherein T. harzianum is present at 5 x107 spores/liter of the substrate and G. catenulatum is present at 1.8 x 108 CFU/l. The ratio of T. harzianum to G. catenulatum in the substrate calculates to 1:3.6 (page 245, right column to page 246, left column; page 247, right column to page 248, left column). Claims 2-5 are thus obvious over Vestberg.
Vestberg does not explicitly disclose the application of T. harzianum and C. rosea for controlling fungal diseases in grapevine, but the ordinary skilled artisan has been taught that both T. harzianum and C. rosea are known biocontrol agents for grapes and grapevine, and T. harzianum in particular is known to treat a wide spectrum of grapevine trunk diseases. Therefore, the ordinary skilled artisan would have been motivated to utilize the known combination of T. harzianum and C. rosea for controlling not only the strawberry pathogens tested by Vestberg but additional pathogens that have been taught to be controlled by T. harzianum and C. rosea, as fully discussed above.
Vestberg discloses a mixture of DB11 + Gliomix, wherein T. harzianum is used in a liquid form containing 2-5 x 107 conidia/ml and G. catenulatum (synonym for C. rosea) is used in a suspension form containing 1.2 x 107 CFU/g, thereby meeting the concentration requirements of claim 12.
Claim 13 requires that the mixture of T. harzianum and C. rosea elicits defense mechanism in grapevine plants. It is the Examiner’s position that such mechanism is an inherent response by a plant after the biocontrol composition is applied, especially when the composition is applied concomitantly with infection or immediately after injury that exposes the plant to infection.
Claim 14 recites application to pruning cuts of grapevine plants. Mutawila teaches that grapevine infections occur through any type of wound, of which pruning wounds are the principal ports of entry, and further teaches pruning wound protection by biological agents. Therefore, it would have been obvious to the ordinary skilled artisan that the biocontrol agents are applied immediately after pruning or injury to prevent fungal pathogen establishment.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, because every element of the invention and the claimed invention as a whole have been fairly disclosed or suggested by the teachings of the cited references.
In this regard, Applicant’s specification results were given consideration, but there is insufficient evidence that such results are greater than additive or would not have been expected by the ordinary skilled artisan, particularly in view of Liebmann’s disclosure of synergistic activity and broadened spectrum of activity (page 3, lines 25-31; page 12, lines 12-23; claim 2). The burden is on Applicant to establish objective evidence of nonobviousness which is probative for the claimed invention and commensurate in scope with that of the claimed invention.
For these reasons, all claims must be rejected again. No claim is allowed.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to JOHN PAK whose telephone number is (571)272-0620. The Examiner can normally be reached on Monday to Friday from 8:30 AM to 5 PM.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's SPE, Fereydoun Sajjadi, can be reached on (571)272-3311. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
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/JOHN PAK/Primary Examiner, Art Unit 1699
1 There are two page numbers for this document, both at the bottom of a page. The page number in the middle of the page bottom is the page number that is referenced here (i.e. not the page numbers that are indicated as, for example “page 1 of 73.”
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