DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This Office Action is in response to the paper filed 3 December 2025. Claim 23 has been amended. The species other than “a urea” in claim 23, and the species other than Paenibacillus sp. strain NRRL B-67615 in claim 24, and claims 1 and 30-41 remain withdrawn. Claims 23-29 are currently pending and under examination.
This Application is a 35 U.S.C. §371 national phase entry of International Application No. PCT/US2019/032273, filed May 14, 2019, which claims the benefit under 35 U.S.C. § 119 of U.S. Provisional Patent Application No. 62/672969, filed May 17, 2018.
New/Modified Rejections Necessitated by Amendment:
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 23-29 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “little” in claim 23 is a relative term which renders the claim indefinite. The term “little” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Here, it is unclear what amount of syneresis is intended to be included in, or excluded from the term “little” syneresis.
Claims 24-29 are included in this rejection, as these claims depend from above rejected claims and fails to remedy the noted deficiencies.
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.
Claims 23-29 are rejected under 35 U.S.C. 103 as being unpatentable over Siepe et al. (WO 2016/020371; Published 2016 – Previously Presented), and further in view of Grasshopper (Nucrop 5-0-20-13, Advanced Liquid Fertilizer, Available as early as 24 June 2013, per Internet Archive Wayback Machine, Available online at: web.archive.org/web/20130624031548/https:// www.grasshopperfertilizer.com/nucrop-5-0-20-132 - Previously Presented).
With regard to claims 23 and 25, Siepe et al. teach an agrochemical formulation usable for controlling or suppressing plant pathogens (Abs.). The formulation including whole culture broth, which is fermentation broth, of a fusaricidin-producing Paenibacillus sp. strain, where whole culture broth includes the microorganism and metabolites produced by the microorganism, including fusaricidin A (Abs.; p. 6, line 15-20; p. 17, line 30 to p. 18, line 11). Siepe et al. teach multiple formulations that provide an agriculturally acceptable, stable, aqueous formulation (see p. 40, line 38 to p. 42, line 2). The formulations including: water-soluble concentrates, where the whole culture broth is present at 10-60%, with water to 100% (p. 40, line 40-43); suspensions, where the whole culture broth is present at 20-60%, with water to 100% (p. 41, line 16-21); water-dispersible/soluble granules, where the whole culture broth is present at 50-80%, with water to 100% (p. 41, line 23-28); water-dispersible/soluble powders, where the whole culture broth is present at 5-25%, with water to 100% (p. 41, line 35 to 39); and microemulsions, where the whole culture broth is present at 5-20%, with water to 100% (p. 41, line 40 to p. 42, line), wherein the taught percentages of whole culture broth in each noted formulation are fully encompassed within 3% w/w to 90% w/w, and the formulations include water.
Additionally, Siepe et al. teach that biopesticides are typically created by growing and concentrating naturally occurring organisms and their metabolites (p. 1, line 30-32), wherein formulations may be concentrated, and commercial products are preferably formulated as concentrates (p. 42, line 31-43). As such, it would have been obvious to one of ordinary skill in the art that the formulation may be concentrated, which would provide the included fermentation broth as a fermentation broth concentrate in the formulation.
Siepe et al. further teach that the formulation can include fertilizers, including urea, where fertilizers can be present in a weight ratio with the formulation of 1:100 to 100:1 (p. 38, line 43 to p. 39, line 2; p. 46, line 12-17). However, it is not specifically taught that urea is present in the formulation at 2% w/w to 5% w/w.
Grasshopper teach a liquid fertilizer composition comprising 5% urea (p. 1, Guaranteed analysis), which is fully encompassed within 2% to 5% w/w urea.
It would have been obvious to one of ordinary skill in the art to combine the teachings of Siepe et al. and Grasshopper, because both teach an aqueous agrochemical formulation that includes urea as a fertilizer component. The inclusion of 5% w/w urea in a liquid fertilizer composition is known in the art as taught by Grasshopper. As Siepe et al. teach that fertilizers including urea may be included in the formulation, one would have been motivated from the teachings of Grasshopper to utilize 5% w/w as an amount of urea that may be present in the formulation. The use of urea at 5% w/w would have been expected to predictably and successfully provide urea in a concentration sufficient to function as a fertilizer in the agrochemical formulation of Siepe et al.
Taken together, Siepe et al. and Grasshopper render obvious the formulation as claimed, including the components as claimed. As the composition and its components cannot be separated from their properties, the formulation as rendered obvious by Siepe et al. and Grasshopper would necessarily be physically stable where little or no syneresis occurs after 2 weeks at 54°C.
With regard to claim 24, component a) in claim 1 is a fermentation broth concentrate comprising a fusaricidin-producing Paenibacillus sp. strain and its metabolite fusaricidin A. It is noted that the fermentation broth concentrate comprising a fusaricidin-producing Paenibacillus sp. strain and its metabolites, cannot be separated from its properties. There is no evidence that the fermentation broth as claimed, which includes Paenibacillus sp. strain NRRL B-67615 and its metabolite fusaricidin A, is different from the fermentation broth of Siepe et al., which likewise includes a fusaricidin-producing Paenibacillus sp. and its metabolite fusaricidin A. Thus, the fermentation broth including Paenibacillus sp. strain NRRL B-67615 and its metabolite fusaricidin A is deemed to be structurally the same as that present in the formulation of Siepe et al.
Alternatively, it would have been obvious to one of ordinary skill in the art to utilize fermentation broth comprising a fusaricidin-producing Paenibacillus sp. and its metabolite fusaricidin A, including Paenibacillus sp. strain NRRL B-67615. Such an alternative amounts to the simple substitution of one known fusaricidin-producing Paenibacillus sp. strain for another, and would have been expected to predictably and successfully provide fermentation broth for use in the agrochemical formulation of Siepe et al. and Grasshopper.
With regard to claim 26, as discussed previously, Siepe et al. teach that urea may be present in the formulation (p. 38, line 43 to p. 39, line 2), wherein urea has a chemical formula including CO(NH2)2 (see Art of Record: DS 414 Ruminant Nutrition).
With regard to claims 27 and 29, Siepe et al. teach that fertilizers usable in the formulation included urea, and can also include ammonium phosphate, and mixtures thereof (p. 38, line 43 to p. 39, line 2). While a combined concentration of urea and ammonium phosphate is not specifically taught, it would have been routine for an ordinary artisan to determine the desired amount of ammonium phosphate to add with 5% w/w urea as appropriate for the desired end use. It is noted that "the discovery of an optimum value of a variable in a known process is usually obvious." Pfizer v. Apotex, 480 F.3d at 1368. The rationale for determining the optimal parameters for prior art result effective variables "flows from the 'normal desire of scientists or artisans to improve upon what is already generally known.'" Id. (quoting In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)). Accordingly, it would have been obvious to optimize the amounts of the fertilizer ingredients including urea and ammonium phosphate in the combined composition, including to about 2% to about 3%, to result in the presence of an effective amount for the desired end use of the combined composition.
With regard to claim 28, as noted, Siepe et al. further teach that ammonium phosphate may be included in the formulation (p. 38, line 41 to p. 39, line 2; p. 41, line 30-34). However, it is not specifically taught that the phosphate is potassium phosphate monobasic or potassium phosphate dibasic. However, Siepe et al. further teach that fermentation media used to produce the fermentation products include potassium dihydrogenphosphate (potassium phosphate monobasic) or dipotassium hydrogenphosphate (potassium phosphate dibasic).
It would have been obvious to one or ordinary skill in the art to utilize an alternative phosphate in the taught formulation. The use of potassium phosphate monobasic or potassium phosphate dibasic in place of ammonium phosphate amounts to the simple substitution of one known phosphate for another, and would have been expected to predictably and successfully provide a phosphate for use in the formulation.
Response to Arguments
Applicant urges that an ordinary artisan would not have had a reasonable expectation that combining the teachings of Siepe with those of Grasshopper would result in a physically stable aqueous formulation containing 2%-5% urea, wherein little or no syneresis occurs after 2 weeks at 54°C. Tank mixes are prepared immediately prior to use as instructed in Grasshopper, because they are not physically stable. Additionally, the final concentration of urea in the tank mixes of Grasshopper is not provide, as the amount of dilution is not specified.
Applicant’s arguments have been fully considered, but have not been found persuasive.
With regard to Applicant’s argument that the limitation that the formulation is physically stable with little or no syneresis occurs after 2 weeks at 54°C, is not rendered obvious; as noted above, this limitation is indefinite. Further, taken together, Siepe et al. and Grasshopper render obvious the formulation as claimed, including the components as claimed. As the composition and its components cannot be separated from their properties, the formulation as rendered obvious by Siepe et al. and Grasshopper would necessarily be physically stable where little or no syneresis occurs after 2 weeks at 54°C.
With regard to Applicant’s argument that the limitation of 2%-5% urea is not rendered obvious, as tank mixes are prepared immediately prior to use as instructed in Grasshopper, and the final concentration of urea in the tank mixes of Grasshopper is not provide, as the amount of dilution is not specified; it is noted that Grasshopper does not require the liquid fertilizer solution to be diluted, including immediately prior to use, and in fact specifically teaches that the “[p]roduct may be applied either diluted or undiluted” (emphasis added) (see Grasshopper, Recommended Rates). As such, there is no requirement to dilute the formulation, and thus urea is present in the undiluted liquid fertilizer solution for application in a final amount of 5%.
Conclusion
No claims are allowable.
Previously Presented Art of Record:
DS 414 Ruminant Nutrition, Urea, Available online: kb.wisc.edu/dairynutrient/414RN/page. php?id=56522, Accessed 4/20/22 (urea has the chemical formula CO(NH2)2).
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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/JENNIFER M.H. TICHY/Primary Examiner, Art Unit 1653