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 Action/Claims
Receipt of Remarks/Amendments filed on 4/1/2026 is acknowledged. Claims 1-3, 7-9, 11-37 are currently pending. Claims 9 and 19-37 have been withdrawn. Accordingly, claims 1-3, 7-8 and 11-18 are presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn.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.
Modified Rejections Necessitated by Claim Amendments
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.
Claim(s) 1-3, 7-8, 11, 13, 16-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Galal et al. (Plant nutrition…, 2001, 666-667), and further in view of Ghalili et al. (WO2016025580), EP0242892, JPS5921844B2, Arunan (WO2018210870 with priority to at least 11/22/2017), Wang et al. (Eur. J. of Plant Pathology, 2014, 140, 515-525).
Determination of the scope and content of the prior art (MPEP 2141.01)
Regarding claims 1-3, 11, 13, 16, Galal teaches stimulation of wheat growth and N fixation through Azospirillum and Rhizobium inoculation. Galal teaches that wheat which is inoculated by seed coating with Rhizobium leguminosarum, which reads on the administering to plants step and the application via seed coating step of claim 16, and is able to fix at least some portion of the nitrogen requirements of the plant from N which is derived from air (See abstract; materials and method section (sentence beginning with, “Wheat seeds…” right col. Pg. 666); Table 2).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Regarding claims 1-3, 7-8, 11, 13, 16-18, Galal does not teach wherein the method further comprises the claimed phytochemicals, specifically the elected sclareol, naringin, nootkatone, steviol glycoside, and cannabidiol combination and where the bacteria and activating agents are administered together in a single composition or in separate compositions. However, these deficiencies in Galal are addressed by Ghalili, EP0242892, JPS5921844B2, Arunan, and Wang.
Ghalili teaches that CBD, specifically CBD oil in and/or with hemp oil derivatives (which reads on hemp oil) are known fertilizer agents that are useful for crops and which can be applied to soil or plants (See abstract; pg. 3, ln. ~ln. 22-pg. 4, ln. 6; claims 1-3; pg. 1, 1st paragraph of background of the invention section).
EP0242892 teaches that naringin activates nodulation promoters in rhizobium bacteria, specifically R. leguminosarum and are then contacted with seed or plant (See abstract; [0011-0012]; [0013]; [0004]; Claims 1, 6).
JPS5921844B2 teaches that steviol glycoside is known to promote the growth of plants, including wheat plants and other plants and can be sprayed or applied to the plant or soil (See claim; paragraph/sentence beginning: Fruit vegetables such as cucumbers…wheat…and peas; “In an embodiment of the present invention, the steviol glycoside and the saccharide hydrolase may be applied to the plant separately…”).
Arunan teaches using compositions comprising nootkatone to control phytopathogenic microorganisms in cereal crops including wheat, corn, legumes, etc. and wherein the nootkatone can be applied to the seeds, plants, plant parts, or into soil which can be used as a carrier for delivering the nootkatone (See Abstract; [0003]; [0011]; [0091]; [0131]; [0149]; [0159]; Claims).
Wang teaches that sclareol possessed anti-fungal activity against most of the tested fungal pathogens of cereal crops (e.g. wheat, corn, rice) (See abstract; pg. 521, right col. Antifungal activity of totarol and sclareol against fungal pathogens).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have developed the instantly claimed method of treating wheat seeds to supply the nitrogen fixation by coating the claimed seeds, specifically wheat seeds Rhizobium species, specifically the instantly claimed R. leguminosarum because Galal teaches it was known to apply R. leguminosarum to wheat seeds in order to improve growth and to provide nitrogen fixation/nitrogen requirements from nitrogen present in the air. Thus, it would be obvious to place the R. leguminosarum onto wheat seeds which have been coated with so that the plants growing from these seeds can readily incorporate the R. leguminosarum into their roots and obtain nitrogen through bacterial fixation, and it would have been obvious to add the claimed activating agents either in combination as a single composition with the R. leguminosarum or as a two compositions administered separately applied to the seeds/seedlings resulting from the seeds so that the roots contact both the claimed phytochemicals and the R. leguminosarum because each of the claimed activating agents was already known in the art to benefit plants by improving growth, keeping the plants healthy, improving root nodulation/infection with the claimed R. leguminosarum, etc. as is taught by the combination of Ghalili, EP0242892, JPS5921844B2, Arunan, and Wang as discussed above and it is known in the art to administer agricultural active agents together as a single composition and/or as two compositions sequentially because these are common ways that agricultural compositions are formulated and applied that one of ordinary skill in the art routinely uses when applying combinations of actives to seeds/plants to improve their growth/yield/nitrogen uptake, etc.
It would have been obvious to one of ordinary skill in the art to combined nootkatone, sclareol, CBD specifically in/from hemp oil, steviol glycoside, and naringin as is instantly claimed and to apply this composition to the soil or the plants developing from the seeds, or the seeds which were coated with R. leguminosarum in order to improve plant growth and N-fixation from bacteria as is taught Galal and the secondary references above. One of ordinary skill in the art would be motivated to apply the claimed combination to the soil and/or cereal seeds, e.g. wheat seeds and/or wheat plants growing from the treated seeds because nootkatone and sclareol are known to provide activity against phytopathogenic microorganisms of cereal plants, including phytopathogenic fungi as is taught above, and steviol glycoside and CBD, specifically CBD in/from hemp oil, are known to improve plant growth/fertilize plants, and naringin is known to promote the nodulation promoters in R. leguminosarum and as such would be expected to improve the activity of the R. leguminosarum as it infects/colonizes the roots of the cereal crops (e.g. wheat) which it is known in the art to do. One of ordinary skill in the art would want to combine these agents in order to provide improved growth of wheat crops and improved yields of the wheat as taught by Galal with the addition of the R. leguminosarum and nitrogen fixation which allows for the plants to get their nitrogen from the air/environment instead of fertilizers as is taught by Galal, while also protecting/controlling known cereal diseases caused by phytopathogenic microorganisms which are known in the art to affect cereal crops, e.g. wheat. "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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
With respect to the instantly claimed limitation where the claims are direct to a method for completely supplying the nitrogen requirements of a plant, while the combination of above cited references do not expressly state the methods taught completely supply the nitrogen requirements of a plant, however, the combination of above cited references render obvious administering to a plant a combination of non-pathogenic, atmospheric nitrogen fixing bacteria and one or more activating agent. The prior art renders obvious the claimed method steps utilizing the claimed composition (comprising the claimed nitrogen fixing bacteria and activating agents) and as such, the method taught by prior art would necessarily supply the complete nitrogen requirements of a plant as recited in the preamble of claim 1. ““[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art' s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus, the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).” MPEP § 2112, I.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that 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, as evidenced by the references, especially in the absence of evidence to the contrary.
Claims 14-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Galal et al. (Plant nutrition…, 2001, 666-667) and further in view of Ghalili et al. (WO2016025580), EP0242892, JPS5921844B2, Arunan (WO2018210870 with priority to at least 11/22/2017), Wang et al. (Eur. J. of Plant Pathology, 2014, 140, 515-525) as applied to claims 1-3, 7-8, 11, 13, 16-18 above and further in view of Afzal et al. (J. of Plant Nutrition, 2014, 37, 2144-2156) and EPA (https://www3.epa.gov/pesticides/chem_search/ppls/008622-00068-20080709.pdf).
Determination of the scope and content of the prior art (MPEP 2141.01)
The combined references together teach the method of claims 1-3, 7-8, 11, 13, 16-18 as discussed above and incorporated herein.
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
The combined references do not teach wherein the method further comprises further comprises administration of one or more phosphorous-containing fertilizers, specifically a fungicide containing mono- and dipotassium salts of phosphorous acid, and copper sulfate (Calirus). These deficiencies are addressed by Afzal and EPA.
Afzal teaches that combining phosphorous fertilizer, P2O5, with Rhizobium led to increased yields in wheat (See abstract) which reads on claim 14.
EPA teaches that the claimed Calirus fertilizer is also known to be antifungal for wheat and other cereals and can be applied to seeds or to the soil, or to plants (See pg. 10 of 18 Food crops, cereal and that Calirus is used as a fungicide against various phytopathogenic fungi; see also pg. 7 of 18 General application instructions).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to add/administer phosphorous fertilizer to the wheat seeds treated with R. leguminosarum and the claimed phytochemicals as taught by Galal and the combined references because it was known to use phosphorous fertilizers in addition to inoculation with rhizobium bacteria to improve yields in cereal crops, e.g. wheat. Thus, one of ordinary skill in the art would be motivated to add the claimed phosphorous fertilizers in order to further improve the yields of plants, e.g. wheat or other cereals growing in the field.
It also would have been obvious to one of ordinary skill in the art at the time of the instant filing to add phosphorous fertilizer, specifically Calirus/Calirus 150 (fungicide containing mono- and dipotassium salts of phosphorous acid, and copper sulfate) to the wheat seeds having the claimed R. leguminosarum applied in combination with the claimed activating agents which are known in the art to improve plant growth and health as is taught by the combined references because it was known to use phosphorous fertilizers in addition to inoculation with rhizobium bacteria to improve yields in cereal crops, e.g. wheat and Calirus 150 has additional activity in that it also functions as a fungicide in cereal crops. Thus, one of ordinary skill in the art would be motivated to add the Calirus 150 to the furrows/seeds and/or spray the plants that result from the treated seeds of the combined references in order to further improve the yields of plants as this is something that fertilizers do as well as to provide fungicidal effects/protection to the crops growing in the fields. Thereby limiting the number of treatments which would need to be further applied to the crops during the growing season as a fertilizer that also functions as fungicide would allow for more cost-effective application by the farmer/grower to the crops in the field than a formulation which only functions as a fertilizer or a fungicide.
The following 103 rejection has been modified to also include naringin in the rejection in view of claim 1 amendment which has been amended to recite the specific activating agents.
Claims 1, 7-8, 11-12, 16-18 is rejected is/are rejected under 35 U.S.C. 103 as being unpatentable over Oliviera et al. (Fron. In Microbio., 2017, 8, article 1873) in view of Ghalili et al. (WO2016025580), JPS5921844B2, Arunan (WO2018210870 with priority to at least 11/22/2017), Wang et al. (Eur. J. of Plant Pathology, 2014, 140, 515-525), Sathya (3 Biotech (2015) 5:355-377) and EP0242892.
Determination of the scope and content of the prior art (MPEP 2141.01)
Regarding claims 1, 11-12, 16, Oliviera teaches it was known to apply Azospirillum sp. to corn seeds/plants in soil, by treating the soil/furrow in order to improve growth and to provide/supply nitrogen fixation/nitrogen requirements from nitrogen present in the air (See entire document; e.g. field trials section; Discussion section; Table 6, particularly the NLC (nitrogen content in leaf) column which demonstrates that the inoculant of the claimed bacteria leads to much improved leaf nitrogen content, which is a measurement of nitrogen fixation.
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Regarding claims 1, 7-8, 11-12, 16-18, Oliviera does not teach wherein the method further comprises the claimed phytochemicals, specifically the elected sclareol, naringin, nootkatone, steviol glycoside, and cannabidiol combination and where the bacteria and activating agents are administered together in a single composition or in separate compositions. However, these deficiencies in Oliviera are addressed by Ghalili, JPS5921844B2, Arunan, Wang, Sathya and EP0242892.
Ghalili teaches that CBD, specifically CBD oil in and/or with hemp oil derivatives (which reads on hemp oil) are known fertilizer agents that are useful for crops and which can be applied to soil or plants (See abstract; pg. 3, ln. ~ln. 22-pg. 4, ln. 6; claims 1-3; pg. 1, 1st paragraph of background of the invention section).
JPS5921844B2 teaches that steviol glycoside is known to promote the growth of plants, including wheat plants and other plants and can be sprayed or applied to the plant or soil (See claim; paragraph/sentence beginning: Fruit vegetables such as cucumbers…wheat…and peas; “In an embodiment of the present invention, the steviol glycoside and the saccharide hydrolase may be applied to the plant separately…”).
Arunan teaches using compositions comprising nootkatone to control phytopathogenic microorganisms in cereal crops including wheat, corn, legumes, etc. and wherein the nootkatone can be applied to the seeds, plants, plant parts, or into soil which can be used as a carrier for delivering the nootkatone (See Abstract; [0003]; [0011]; [0091]; [0131]; [0149]; [0159]; Claims).
Wang teaches that sclareol possessed anti-fungal activity against most of the tested fungal pathogens of cereal crops (e.g. wheat, corn, rice) (See abstract; pg. 521, right col. Antifungal activity of totarol and sclareol against fungal pathogens).
Sathya throughout the reference teaches plant growth promoting rhizobia. Plant growth promoter (PGP) inhabit the rhizosphere for nutrients from plant root exudates. By reaction, they help in increased plant growth through soil nutrient enrichment by nitrogen fixation. Sathya teaches Rhizobia and their effect on host plant and specifically discloses Rhizobium leguminosarum bacteria enhanced plant growth and biomass of Maize (i.e. corn) plant. (see e.g. Abstract; Introduction; Section titled Plant growth promoting traits of rhizobia; Table 3; Entire Document).
EP0242892 teaches that naringin activates nodulation promoters in rhizobium bacteria, specifically R. leguminosarum and are then contacted with seed or plant (See abstract; [0011-0012]; [0013]; [0004]; Claims 1, 6).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have developed the instantly claimed method of treating corn plants/seeds to supply nitrogen fixation by spraying the soil/furrow where seeds are planted with the claimed Azospirillum sp. which is a non-pathogenic atmospheric nitrogen-fixing bacteria because Oliviera teaches it was known to apply Azospirillum sp. to corn seeds/plants in soil, by treating the soil/furrow in order to improve growth and to provide nitrogen fixation/nitrogen requirements from nitrogen present in the air (See entire document; e.g. field trials section; Discussion section; Table 6, particularly the NLC (nitrogen content in leaf) column which demonstrates that the inoculant of the claimed bacteria leads to improved leaf nitrogen content, which is a measurement of nitrogen fixation. Thus, it would be obvious to apply/administer the Azospirillum sp. as is instantly claimed so that the plants growing from these seeds can readily incorporate the Azospirillum sp. into their roots and obtain nitrogen through bacterial fixation, and it would have been obvious to add the claimed activating agents either in combination as a single composition with the Azospirillum sp. or as a two compositions administered separately applied to the seeds/seedlings resulting from the seeds so that the roots contact both the claimed phytochemicals and the Azospirillum sp. because each of the claimed activating agents was already known in the art to benefit plants by improving growth, keeping the plants healthy, etc. as is taught by the combination of Ghalili, JPS5921844B2, Arunan, Wang, Sathya and EP0242892 as discussed above and it is known in the art to administer agricultural active agents for improving plant growth/health and/or nitrogen fixation together as a single composition and/or as two compositions sequentially because these are common ways that agricultural compositions are formulated and applied that one of ordinary skill in the art routinely uses when applying combinations of actives to seeds/plants.
It would have been obvious to one of ordinary skill in the art to combined nootkatone, sclareol, CBD specifically in/from hemp oil, steviol glycoside as is instantly claimed and to apply this composition to the soil or the plants developing from the seeds, or the seeds which were treated as claimed as taught by Oliviera in order to improve plant growth and N-fixation from bacteria as is taught by Oliviera in view of the above combined references. One of ordinary skill in the art would be motivated to apply the claimed combination to the soil, planted seeds/plants, e.g. corn seeds and/or plants growing from the treated seeds because nootkatone and sclareol are known to provide activity against phytopathogenic microorganisms of cereal plants, including phytopathogenic fungi as is taught above, and steviol glycoside and CBD, specifically CBD in/from hemp oil, are known to improve plant growth/fertilize plants. One of ordinary skill in the art would want to combine these agents in order to provide improved growth of corn crops and improved yields of the corn crops as taught by Oliviera with the addition of the Azospirillum and nitrogen fixation which allows for the plants to get their nitrogen from the air/environment instead of fertilizers as is taught by Oliviera, while also protecting/controlling known cereal diseases caused by phytopathogenic microorganisms which are known in the art to affect cereal crops, e.g. corn. "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 (e.g. improving plant growth/health), in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
It would have been obvious to one of ordinary skill in the art to also have combined naringin because, as discussed supra, Sathya teaches Rhizobia and their effect on host plant and specifically discloses Rhizobium leguminosarum bacteria enhanced plant growth and biomass of Maize (i.e. corn) plant. EP0242892 teaches that naringin activates nodulation promoters in rhizobium bacteria, specifically R. leguminosarum and are then contacted with seed or plant. Rhizobium leguminosarum was known to enhance plant growth and biomass of Maize (i.e. corn). Thus, one would have been motivated to incorporate R. leguminosarum along with Azospirillum to promote the plant growth. Naringin was known to promote the nodulation promoters in R. leguminosarum and as such naringin would be expected to improve the activity of the R. leguminosarum as it infects/colonizes the roots of the cereal crops (e.g. maize/corn plant) which it is known in the art to do. One of ordinary skill in the art would want to combine these agents in order to provide improved growth of maize crops and improved yields of the maize/corn crops. "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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
With respect to the instantly claimed limitation where the claims are directed to a method for completely supplying the nitrogen requirements of a plant, while the combination of above cited references do not expressly state the methods taught completely supply the nitrogen requirements of a plant, however, the combination of above cited references render obvious administering to a plant a combination of non-pathogenic, atmospheric nitrogen fixing bacteria and one or more activating agent. The prior art renders obvious the claimed method steps utilizing the claimed composition (comprising the claimed nitrogen fixing bacteria and activating agents) and as such, the method taught by prior art would necessarily supply the complete nitrogen requirements of a plant as recited in the preamble of claim 1. ““[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art' s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus, the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).” MPEP § 2112, I.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that 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, as evidenced by the references, especially in the absence of evidence to the contrary.
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-3, 7-8 and 11-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims of copending Application No. 17641612 in view of Galal et al. (Plant nutrition…, 2001, 666-667), Ghalili et al. (WO2016025580), EP0242892, JPS5921844B2, Arunan (WO2018210870 with priority to at least 11/22/2017), Wang et al. (Eur. J. of Plant Pathology, 2014, 140, 515-525), Afzal et al. (J. of Plant Nutrition, 2014, 37, 2144-2156) and EPA (https://www3.epa.gov/pesticides/chem_search/ppls/008622-00068-20080709.pdf).
Examined claims are drawn to a method for completely supplying the nitrogen requirements of a plant, comprising administering to said plant a combination of non- pathogenic, atmospheric nitrogen-fixing bacteria and one or more activating agents, wherein said plant is a member of a species which is unable to obtain its nitrogen requirements by bacterial fixation of atmospheric nitrogen, and wherein said one or more activating agents are phytochemicals.
Reference claims are drawn to a method for supplying nitrogen to a plant comprising the steps of a) providing a composition comprising a combination of non-pathogenic, atmospheric nitrogen-fixing bacteria and a mixture of one or more lipophilic and hydrophilic activating agent, wherein said composition has a non-dry physical form selected from the group consisting of a sludge, slurry or liquid; and b) delivering said composition to said growing plants by depositing said composition in a non-dry form in close proximity to the roots and/or other tissues of said plants. The non-pathogenic atmospheric nitrogen-fixing bacteria are members of the Rhizobium genus. The composition further comprises fertilizer.
The reference claims do not recite the specific activating agents recited in the instant claims, the bacteria species which is specifically rhizobium leguminosarum, and the specific plant recited in instant claims. However, Galal et al., Ghalili et al., EP0242892, JPS5921844B2, Arunan, Wang et al., Afzal et al., and EPA cure these deficiencies.
The teachings of Galal et al., Ghalili et al., EP0242892, JPS5921844B2, Arunan, Wang et al., Afzal et al., and EPA discussed supra are incorporated herein.
It would have been obvious to one of ordinary skill in the art to combined nootkatone, sclareol, CBD specifically in/from hemp oil, steviol glycoside, and naringin as is instantly claimed and to apply this composition to plants such as wheat plant which are treated with Rhizobium, specifically Rhizobium leguminosarum, in order to improve plant growth and N-fixation from bacteria as is taught Galal and the secondary references above. One of ordinary skill in the art would be motivated to apply the claimed combination to the soil and/or cereal seeds, e.g. wheat seeds and/or wheat plants growing from the treated seeds because nootkatone and sclareol are known to provide activity against phytopathogenic microorganisms of cereal plants, including phytopathogenic fungi as is taught above, and steviol glycoside and CBD, specifically CBD in/from hemp oil, are known to improve plant growth/fertilize plants, and naringin is known to promote the nodulation promoters in R. leguminosarum and as such would be expected to improve the activity of the R. leguminosarum as it infects/colonizes the roots of the cereal crops (e.g. wheat) which it is known in the art to do. One of ordinary skill in the art would want to combine these agents in order to provide improved growth of wheat crops and improved yields of the wheat as taught by Galal with the addition of the R. leguminosarum and nitrogen fixation which allows for the plants to get their nitrogen from the air/environment instead of fertilizers as is taught by Galal, while also protecting/controlling known cereal diseases caused by phytopathogenic microorganisms which are known in the art to affect cereal crops, e.g. wheat. "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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
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/Remarks
Applicant argued that the examiner relies on In re Best for the statement that the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. Applicant argued that this however is an obviousness rejection and not an anticipation rejection.
In response, the examiner argues that while the 103 rejection made is an obviousness rejection, however, the rejection renders obvious the composition and the method recited in the claim and as such, the method and the composition recited in the claim would have been prima facie obvious to one skilled in the art and the function of the plant being completely supplied with the nitrogen requirement would necessarily occur with the method and composition taught by the prior art.
Applicant pointed to In re Dillon and In re May, and argued that expected properties caused by the addition of the phytochemicals of the secondary references have nothing to do with nitrogen fixation. Applicant have unexpectedly discovered that the addition of such specific phytochemicals allows complete nitrogen fixation. The examiner has not weighed the evidence of unexpected results against the evidence supporting prima facie obviousness.
In response, while applicant argue that they have unexpectedly discovered that the addition of such specific phytochemicals allows complete nitrogen fixation, applicant have not pointed to or provided any data/results and evidence which shows that combining the specific phytochemicals to achieve complete nitrogen fixation is in fact an unexpected effect. For example, Galal teaches stimulation of wheat growth and N fixation through Azospirillum and Rhizobium inoculation. EP0242892 teaches that naringin activates nodulation promoters in rhizobium bacteria. As such, one would have expected that combining naringin with Rhizobium bacteria would enhance the nitrogen fixation. The complete nitrogen fixation would depend on the type of crop and how much nitrogen is needed for that crop to have a complete nitrogen supply as well as the amount of bacteria and phytochemical added to provide the complete supply of nitrogen. These are parameters that one skilled in the art would routinely optimize to obtain the complete nitrogen supply of the crop. The prior art suggests that combination of the inoculant (e.g. rhizobium bacteria) and phytochemical (e.g. naringin) can enhance nitrogen fixation and applicant’s argument of this being an unexpected effect is not persuasive at this time. While applicant make the argument of complete nitrogen fixation being an unexpected effect of combining the non-pathogenic bacteria with the phytochemicals, applicant need to provide evidence which shows that this is in fact an unexpected effect and the data/result should be commensurate in scope with the claims.
Applicant argued that some of the secondary references are not used for the very same purpose as the primary reference which is nitrogen fixation. Thus, Kerkhoven is inapplicable.
In response, while some of the secondary references do not teach nitrogen fixation of the crop, the references teach ways of promoting plant and plant growth. The primary references are also directed to promoting plant and plant growth (e.g. through nitrogen fixation). Thus, the primary and secondary references do essentially have the same purpose of promoting plant and plant growth.
Applicant argued similar reasonings of unexpected effect regarding all the 103 rejections and double patenting rejections.
In response, the examiner respectfully directs applicant’s attention to the response above which also applies to applicant argument regarding all the 103 rejections and double patenting rejections.
Conclusion
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.
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/A.S/Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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