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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in
37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 02/26/2026 has been entered.
Claim Status
Claims 1-2, 15-16, 23, 72, 79, 117, 128-129, and 132 are currently pending and under examination herein.
Claims 9-14, 17, 18, 23, 26, 36, 39, 45, 46, 50, 60, 67, 68, 88, and 94 are canceled.
Claims 3-8, 19-22, 24-25, 27-35, 37-38, 40-44, 47-49, 51-59, 61-66, 69-71, 73-78, 80-87, 89-93, 95-116, 118-127, 130-131, 137-141, and 142-165 were previously canceled.
Priority
The instant application is the National Stage entry of PCT/US2019/043539, International Filing Date: 07/25/2019, which claims priority to US Provisional Application 62,858,446, filed 06/07/2019, US Provisional Application 62,713,394, filed 08/01/2018, and US Provisional Application 62,703,060, filed 07/25/2018.
Claim 1, and those claims dependent therefrom, recite accessing or creating a soil-borne plant pathogen suppressive microbial library. This limitation is not supported by the ‘446, ‘394, and ‘060 applications. Therefore, claims 1-2, 9-18, 23, 26, 36, 39, 45-46, 50, 60, 67-68, 72, 79, 88, 94, 117, 128-129, 132, and 137-141 are not granted the claim to the benefit of priority to the ‘446, ‘394, and ‘060 applications.
Accordingly, the effective filing date of the claimed invention is 07/25/2019.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-2, 15-16, 23, 72, 79, 117, 128-129, and 132 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
The Supreme Court has established a two-step framework for this analysis, wherein a claim does not satisfy § 101 if (1) it is “directed to” a patent-ineligible concept, i.e., a law of nature, natural phenomenon, or abstract idea, and (2), if so, the particular elements of the claim, considered “both individually and as an ordered combination,” do not add enough to “transform the nature of the claim into a patent-eligible application.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (quoting Alice, 134 S. Ct. at 2355). Applicant is also directed to MPEP 2106.
Step 1: The instantly claimed invention is directed to a method (claim 1). Therefore, the instantly claimed invention falls into one of the four statutory categories. [Step 1: YES]
Step 2A: First it is determined in Prong One whether a claim recites a judicial exception, and if so, then it is determined in in Prong Two if the recited judicial exception is integrated into a practical application of that exception.
Step 2A, Prong 1: Under the MPEP § 2106.04, the Step 2A (Prong 1) analysis requires determining whether a claim recites an abstract idea, law of nature, or natural phenomenon.
Claim(s) 1-2, 15-16, 23, 72, 79, 117, 128-129, and 132 recite the following steps which fall under the mathematical concepts, mental processes, and/or certain methods of organizing human activity groupings of abstract ideas:
Claim 1 recites creating a soil-borne plant pathogen suppressive microbial library, wherein the creating comprises screening a population of microbial isolates … to create a soil-borne plant pathogen suppressive profile for the microbial isolates; the limitation creating a library comprising screening to create a profile encompasses observation, evaluation, judgment, and opinion (See MPEP 2106.04(a)(2), subsection III.) performable by human mind (mental process), since human mind is capable of creating a library (instant specification [0091] a library is a collection of data) by screening/observing microbes and creating a profile/diagram (instant specification [0013] and [0029]; instant drawings, Fig. 1 and 17B).
Claim 1 further recites utilizing microbes from the library of step a) to create a physical antimicrobial signaling capacity and responsiveness microbial library, wherein the creating comprises the steps of: I) screening a population of microbial isolates ;thereby creating an antimicrobial signaling capacity and responsiveness profile for each screened microbial isolate; the limitation creating a library encompasses observation, evaluation, judgment, and opinion (See MPEP 2106.04(a)(2), subsection III.) performable by human mind (mental process), since human mind is capable of creating a library (instant specification [0091] a library is a collection of data) by screening/observing microbes and creating a profile/diagram (instant specification [0013] and [0029]; instant drawings, Fig. 1 and 17B).
Claim1 further recites selecting at least two microbes from the soil-borne plant pathogen suppressive microbial library; the limitation selecting microbes from a library can be particularly performed in human mind (mental process), since human mind is able to selecting/choosing.
Claim 1 further recites empirically verifying the plant pathogen inhibiting activity of the at least two microbes selected, thereby producing a soil-borne plant pathogen inhibiting microbial consortia; the limitation empirically verifying is considered a mental process of verifying/confirming through empirical observations/screening.
Claim 2 recites assembling a library of microbial consortia, each microbial consortia comprising at least two microbes from the antimicrobial signal capacity and responsiveness microbial library; the limitation assembling a library based on an analysis can be particularly performed in human mind (mental process), since human mid is able to bring together a collection of data based on the result of an analysis (specification [0010]).
Claim 2 further recites ranking microbial consortia from the library of screened microbial consortia based upon at least one dimension of the soil-borne plant pathogen suppressive profile; the limitation ranking microbial consortia based on one dimension of a profile can be particularly performed in human mind (mental process), since human mind is able to rank data.
Claim 2 further recites selecting a soil-borne pathogen having desired profile from the library; the limitation selecting a microbial consortia/data from a library can be particularly performed in human mind (mental process).
Claim 15 recites that the soil-borne pathogen is selected from a group (additional information about judicial exception of creating a profile).
Claim 16 recites that the soil-borne pathogen is selected from a group(additional information about judicial exception of creating a profile).
Claim 72 recites assembling a library of microbial consortia; the limitation assembling a library based on an analysis can be particularly performed in human mind (mental process), since human mid is able to bring together a collection of data based on the result of an analysis (specification [0010]).
Claim 72 further recites screening microbial consortia from the library of microbial consortia in the presence of a soil-borne pathogen; the limitation screening microbial isolates is considered a mental process, since human mind is capable of observing objects.
Claim 72 further recites selecting a soil-borne plant pathogen inhibiting microbial consortia having an optimal and designed level of antimicrobial signaling capacity and responsiveness from the library; the limitation selecting can be particularly performed in human (mental process), since human mind is able to select data.
Claim 79 recites that the antimicrobial signaling capacity and responsiveness profile comprises at least one dimension selected from the group; the limitation selecting can be particularly performed in human (mental process), since human mind is able to select data.
Claim 117 recites identifying the soil-borne plant pathogen as a soil-borne plant pathogen(s) present in soil or plant tissue from a locus in need of prescriptive biocontrol; the limitation Identifying can be particularly performed in human mind (mental process), since human mind is able to identify/detect pathogens.
Claim 117 further recites creating a customized soil-borne plant pathogen inhibiting microbial consortia capable of suppressing the growth of the soil-borne plant pathogen; the limitation creating consortia can be particularly performed in human mind (mental process), since human mind is able to bring together/ write down pathogens based on an evaluation.
Claim 128 recites creating a soil nutrient profile of soil from the locus in need of prescriptive biocontrol; the limitation creating a nutrient profile can be particularly performed in human mind (mental process), since human mind is able to put together a list of nutrients to be used on a locus.
Claim 128 further recites creating a customized carbon amendment for application on the locus; the limitation creating a customized amendment can be particularly performed in human mind (mental process), since human mind is able to make changes in a nutrient profile.
Claim 132 recites creating a soil nutrient profile by analyzing a carbon nutrient content; the limitation creating a profile is considered a mental process of creating information based on an analysis.
The identified claim limitations fall into one of the groups of abstract ideas of mathematical concepts, mental processes, and/or certain methods of organizing human activity. Therefore, claims 1-2, 9-18, 23, 26, 36, 39, 45-46, 50, 60, 67-68, 72, 79, 88, 94, 117, 128-129 and 132 recite an abstract idea. [Step 2A, Prong 1: YES]
Step 2A: Prong 2: Under the MPEP § 2106.04, the Step 2A, Prong 2 analysis requires identifying whether there are any additional elements recited in the claim beyond the judicial exception(s), and evaluating those additional elements to determine whether they integrate the exception into a practical application of the exception. This judicial exception is not integrated into a practical application for the following reasons.
The additional elements of claim(s) 1-2, 15-16, 23, 72, 79, 117, 128-129, and 132 include the following.
Claim 129 recites applying the customized soil carbon amendment to the locus.
Claim 132 recites providing a soil sample from the locus in need of prescriptive biocontrol.
The additional elements of providing a soil sample serve to collect the information for use by the abstract idea and thus are considered insignificant extra-solution activity (MPEP 2106.05(g)).
Furthermore, the additional element of applying the customized soil carbon amendment to the locus generally links the use of a judicial exception to a field of use. See MPEP 2106.04(d) I.
Therefore, the additionally recited elements amount to insignificant extra-solution activity and, as such, the claims as a whole do no integrate the abstract idea into practical application. Thus, claims claim(s) 1-2, 15-16, 23, 72, 79, 117, 128-129, and 132 are directed to an abstract idea. [Step 2A, Prong 2: NO]
Step 2B: In the second step it is determined whether the claimed subject matter includes additional elements that amount to significantly more than the judicial exception. An inventive concept cannot be furnished by an abstract idea itself. See MPEP § 2106.05.
The claims do not include any additional steps appended to the judicial exception that are sufficient to amount to significantly more than the judicial exception.
The additional elements of claim(s) 1-2, 15-16, 23, 72, 79, 117, 128-129, and 132 include the following.
Claim 129 recites applying the customized soil carbon amendment to the locus.
Claim 132 recites providing a soil sample from the locus in need of prescriptive biocontrol.
The additional element of applying the customized soil carbon amendment to the locus amount to well understood, routine and conventional. This position is supported by Hafeel et al. (US 20090229179 A1). Hafeel discloses the step of applying the customized soil carbon amendment to the locus (In such embodiment, the present invention provides a biological method of managing crop production comprising the following steps: ... c) determining objective standards for soil and crops in said area and a biological nutrient application program for the area aimed at achieving those of the objective standards which are specific to the specified crop, the program consisting of application of biologically acceptable components not known to cause genetic modification of plants; d) conducting the biological nutrient application program, Paras. [0015]-[00191).
Furthermore, the additional element of providing a soil sample from the locus in need of prescriptive biocontrol amount to well understood, routine and conventional. This position is supported by Hafeel et al. Hafeel discloses the method of claim 128, wherein the step of creating a soil nutrient profile comprises the steps of: i) providing a soil sample from the locus in need of prescriptive biocontrol; and ii) analyzing the carbon nutrient contents of said soil sample (With this object in view, the present invention provides-in one aspect-a method for land management comprising measuring, as a measure of effectiveness of the method, soil quality of a soil sample collected from land under management by a microbial bioassay ... Such measurement may be employed to identify the availability of nutrients, Para. [0007)).
Therefore, the additional element is not sufficient to amount to significantly more than the judicial exception.
Taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception(s). Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claims as a whole do not amount to significantly more than the exception itself. [Step 2B: NO]
Therefore, the instantly rejected claims are not drawn to eligible subject matter as they are directed to an abstract idea (and/or natural correlation) without significantly more. For additional guidance, applicant is directed generally to applicant is directed generally to the MPEP § 2106.
Response to Arguments
Applicant's arguments filed 02/26/2026 have been fully considered but they are not persuasive. Applicant states:
A. Step 2A, Prong One - The claims are directed towards physical steps reciting
tangible biological material and wet-lab operations and are not directed to a judicial
exception (i.e. Step 2A: NO).
The Examiner asserts that the limitations recited in claim 1 of creating a library, utilizing microbes/data to create one or more libraries, and selecting at least two microbes, can all be performed in the human mind.
Applicant respectfully submits that the Office's focus on mental use of data and selection ignores the recitation of claim 1 for "producing" a soil-borne plant pathogen inhibiting microbial consortia, i.e. a tangible physical product outcome. Applicant has also clarified that step a) recites "creating a physical soil-borne plant pathogen suppressive microbial library" and step b) recites creating a "physical antimicrobial signaling capacity and responsiveness microbial library."
Furthermore, to produce the "soil-borne plant pathogen inhibiting microbial consortia" claim 1 recites various physical microbiology screening steps in elements a) and b), which cannot be performed in the human mind. For example, claim 1 recites in step a) "screening a population of microbial isolates in the presence of a soil-borne plant pathogen to create a soil-borne plant pathogen suppressive profile for the microbial isolates." Applicant respectfully submits that screening a population of microbial isolates in the presence of a soil-borne plant pathogen cannot occur in the human mind. Consider that claim 1 also recites in step b) various screening procedures enumerated as i) and/or ii). These screening procedures in steps a) and b) make clear that the claimed method is not directed to an abstract idea but rather are physical steps that lead to the creation of the claimed "physical" libraries.
And, finally, claim 1 recites a physical step in d) of "empirically verifying the plant pathogen inhibiting activity," to thereby produce a "soil-borne plant pathogen inhibiting microbial consortia having a designed level of antimicrobial signaling capacity and responsiveness."
The MPEP provides that: "If the claim does not recite a judicial exception (a law of nature, natural phenomenon, or abstract idea), then the claim cannot be directed to a judicial exception (Step 2A: NO), and thus the claim is eligible at Pathway B without further analysis." MPEP § 2106.04
(II)(A)(1) (emphasis added).
It is respectfully submitted that the above statement is not persuasive. It is respectfully submitted that these are not persuasive. The Applicant remarks are directed to Step 2A Prong One of 101 analysis, specifically that whether the claims recite a judicial exception.
As stated above, the step of creating a library by screening (observation) and creating a profile/manipulation of data (for example, creating a diagram, as disclosed in FIG. 1 and 17B; mental process of drawing data points on a diagram, for example by using a pen and paper), and empirically verifying encompass observation, evaluation, judgment, and opinion (See MPEP 2106.04(a)(2), subsection III.) performable by human mind (mental process).
Furthermore, since the result of steps a) and b) are data, therefore the step of producing assembles a library of microbial consortia, for example, on a paper by collecting data from screening.
Therefore, the claims recite one or more judicial exceptions.
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.
Claims 1, 2, and 117 are rejected under 35 U.S.C. 103 as being unpatentable over Wigley et al. (US20180044664A1), in view of Syed-Ab-Rahman et al. (Identification of Soil Bacterial Isolates Suppressing Different Phytophthora spp. and Promoting Plant Growth, Frontiers in Plant Science, Published: 18 October 2018, pages 1-18).
Regarding claim 1, Wigley discloses method for creating a soil-borne plant pathogen inhibiting microbial consortia having a designed level of antimicrobial signaling capacity and responsiveness ([0092] a combination of two or more microorganisms acquired, selected or isolated by a method [0342] to generate a refined set of 44 treatments comprising 34 individual isolates and 10 consortia for a second round of microbial evaluation).
Wigley further discloses [0317-0359] a process of directed evolution of a microbial community, where the environmental or other microbe-containing sample, related or unrelated to desired plant phenotypes are collected as the microbe source, plant is enriched, isolate microbes are selected, isolates are screened for specific attributes, and isolated microbes are tested alone or in combination for ability to induce or confer desired trait.
Wigley further discloses [0265] system includes database or library; [0133] a microorganism or a combination of microorganisms of use in the methods of the invention may be selected from a pre-existing collection of individual microbial species or strains based on some knowledge of their likely or predicted benefit to a plant. [0038] database is based on known microorganisms; [0133] For example, the microorganism may be predicted to: ... elicit plant defensive responses such as ISR (induced systemic resistance) or SAR (systemic acquired resistance), for example screening by applying beneficial microorganisms, which help the plant resist the invasion and spread of pathogenic microorganisms; also see library creation/preparation steps in [0068-0090]; In this embodiment, the source material may include one or more species of microorganisms.[0138] It is preferred that a mixed population of microorganisms is used in the methods of the invention. [0139] In embodiments of the invention where the microorganisms are isolated from a source material (for example, the material in which they naturally reside), any one or a combination of a number of standard techniques which will be readily know to skilled persons may be used); reading on limitations of a) accessing or creating a soil-borne plant pathogen suppressive microbial library, wherein the creating comprises screening a population of microbial isolates in the presence of a soil- borne plant pathogen to create a soil-borne plant pathogen suppressive profile for the microbial isolates, wherein said plant pathogen suppressive profile indicates each microbial isolate's ability to suppress the soil-borne plant pathogen;
Syed-Ab-Rahman discloses a method of identification of soil bacterial isolates to suppress plant pathogens. Syed-Ab-Rahman further discloses a primary screening, where a subset of 48 isolates was randomly chosen from the Plant–Microbe Interactions Laboratory microbial collection… The bacterial isolates were then tested for their ability to produce anti-oomycete metabolites against Phytophthora spp. The screenings included the species P. capsici, P. citricola, P. palmivora, and P. cinnamomi. This test consisted of a dual-culture in vitro assay on potato dextrose agar (PDA, Oxoid) (pg. 2. Col. 2; subsection: Screening of bacterial isolates for antagonistic activity); reading on limitations of step a).
Wigley further discloses b) utilizing microbes from the library of step a) to create a physical antimicrobial signaling capacity and responsiveness microbial library; wherein the creating comprises the steps of:i) screening a population of microbial isolates from the soil-borne plant pathogen suppressive microbial library for the ability of each microbial isolate to signal and modulate the production of antimicrobial compounds in other microbial isolates; and/or ii) screening a population of microbial isolates from the soil-borne plant pathogen suppressive microbial library for the ability of each microbial isolate to be signaled and have their production of antimicrobial compounds modulated by other microbial isolates;thereby creating an antimicrobial signaling capacity and responsiveness profile for each screened microbial isolate ( claims 1-4: subjecting plants to one or more sets of microorganisms and [0020] and acquiring those microorganisms and separating them into individual isolates, and selecting individual isolates, culturing the one or more microorganisms, selecting one or more composition from the acquiring step if it is observed to impart one or more beneficial property to the one or more plants (claim 23), (for example, creating a microbial library) and assisting in the improvement of one or more plants, comprising arranging for the evaluation of said plant(s) in the presence of one or more microorganisms and/or compositions (claim 26). [0121] microorganism combinations acquired in step c) will detect previously unknown, desirable property promoting (such as plant growth), synergistic interactions between microbes. Using the iterative steps a) to c) will drive the starting population of two or more microorganisms toward microbes that interact with the plant to impart a desired property or characteristic; [0273] parameters of the evaluation process are selected. For example, reference may be made to database 14 for microorganisms that may provide the desired improvement in the plant(s); [0094] the method of the first aspect on two or more different species of plant so as to identify combinations of microorganisms that may impart a positive benefit to one species and a negative benefit to another species simultaneously. For example, one may wish to identify a group of microorganisms that may simultaneously improve the growth and survival of a food crop and suppress or inhibit the growth of a competing crop or weed).
Syed-Ab-Rahman discloses a secondary screening, where In vivo experiments were conducted to assess the efficacy of the bacterial isolates in suppressing pathogen load of the causal agent of Phytophthora blight in chili pepper (C. annuum L., cultivar Cayenne) (pg. 5, col. 2, para. 1); reading on limitations of step b).
Wigley further discloses c) selecting at least two microbes from the antimicrobial signaling capacity and responsiveness microbial library; d) empirically verifying the plant pathogen inhibiting activity of the at least two microbes selected, thereby producing a soil-borne plant pathogen inhibiting microbial consortia having a designed level of antimicrobial signaling capacity and responsiveness; ([0091-0094] a combination of two or more microorganisms acquired, selected or isolated by a method of library creation/preparation steps in [0068-0090] for imparting one or more beneficial property to one or more plant). ([0092] a combination of two or more microorganisms acquired, selected or isolated by a method [0342] to generate a refined set of 44 treatments comprising 34 individual isolates and 10 consortia for a second round of microbial evaluation)
Syed-Ab-Rahman discloses Extraction and identification of potential anti-oomycete compounds, as well as screening and identification of bacterial isolates for antagonistic activity. Syed-Ab-Rahman further discloses One of the objectives of this study was to screen for potential isolates that exhibit plant growth promoting and biocontrol properties, using various existing biochemical microbiological in vitro assays. Bacteria isolated from Arabidopsis rhizosphere and bulk soil were investigated for plant growth promotion and antagonistic activities against pathogenic Phytophthora spp. isolates. Overall, the isolates showed varied levels of inhibition against Phytophthora. Almost all 48 tested isolates showed inhibitory effects against Phytophthora (Figure 1) (pg. 6, col. 2, last para.).
Syed-Ab-Rahman further determines biocontrol and plant growth promotion, where the isolates exhibited potent inhibitory effects toward P. capsici, P. citricola, P. cinnamomi, and P. palmivora in vitro… Microscopic observation of Phytophthora hyphae showed an abnormal morphology, i.e., excessive branching and irregular shape along with the inhibition zone in dual-culture plate assays. traits (for example, empirically verifying pathogen inhibiting activity); reading on limitations of steps c) and d).
Regarding claim 2, Wigley discloses assembling a library of microbial consortia, each microbial consortia comprising at least two microbes from the soil-borne plant pathogen suppressive microbial library, selected based on the analysis (([0091-0094] a combination of two or more microorganisms acquired, selected or isolated by a method of library creation/preparation steps in [0068-0090] for imparting one or more beneficial property to one or more plant));
Wigley further discloses screening microbial consortia from the library of microbial consortia in the presence of a plurality of soil-borne plant pathogens to produce a soil-borne plant pathogen suppressive profile for each screened microbial consortia ([0133] in one embodiment a microorganism or a combination of microorganisms of use in the methods of the invention may be selected from a pre-existing collection of individual microbial species or strains based on some knowledge of their likely or predicted benefit to a plant. For example, the microorganism may be predicted to … elicit plant defensive responses such as ISR (induced systemic resistance) or SAR (systemic acquired resistance) which help the plant resist the invasion and spread of pathogenic microorganisms);
Wigley further discloses optionally ranking microbial consortia from the library of screened microbial consortia based upon at least one dimension of the soil-borne plant pathogen suppressive profile of each microbial consortia ([0338] example 5, microbial evaluation: microbial evaluation was performed on isolates on the basis of abundance, diversity and species characteristics, [0342] treatments were selected on the basis of result of an analysis (WSC) and included individual isolates that performed well in consortia, as well as new consortia prepared from highly ranked microbes);
Wigley further discloses and selecting a soil-borne plant pathogen inhibiting microbial consortia having the desired soil-borne pathogen suppressive profile from the library ([0345] The treatment yielding the highest median carbohydrate concentration was a new consortium of the three top-ranking individual isolates from the first round of microbial evaluation).
Regarding Claim 117, Wigley discloses a method for prescriptive biocontrol of a soil-borne plant pathogen (In another embodiment, the methods of the first aspect of the invention may be useful in identifying and/or selecting one or more unculturable microorganism capable of imparting one or more beneficial property to a plant [0025]; By way of further example, the microorganisms may be collected from commercial crops grown in such environments, or more specifically from individual crop plants best displaying a trait of interest amongst a crop grown in any specific environment [0131]; Furthermore, the evaluation may be performed by the requesting party and/or in the first region (0039]; "Region" and "first region" are to be interpreted broadly as meaning one or more areas of land. The land areas may be defined by geographical/political/private land boundaries or by land areas having similar properties such as climate, soil properties, presence of a particular pest etc., Para. [0028]), said method comprising: a) Identifying the soil-borne plant pathogen(s) present in soil or plant tissue from a locus in need of prescriptive biocontrol ("Region" and "first region" are to be interpreted broadly as meaning one or more areas of land. The land areas may be defined by geographical/political/private land
boundaries or by land areas having similar properties such as ... soil properties, presence of a particular pest etc. (0028]; Methods for isolation may be informed by culture independent community profiling techniques that provide information on the identity and activity of microbes present in a given sample [0213]); b) creating a customized soil-borne plant pathogen inhibiting microbial consortia.
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 the method of Wigley to have substituted the directed selection of Wigley by the primary (dual-culture assay) and secondary (in-vivo testing) screening of microbial isolates, as shown by Syed-Ab-Rahman for the purpose of selecting microorganisms capable of providing beneficial properties such as pathogen inhibition to the soil surrounding a plant. There would be a reasonable expectation of success in combining the technique of Syed-Ab-Rahman to the method of Wigley because both are in the same field of soil bacterial isolates identification.
Claim(s) 72 and 79 are rejected under 35 U.S.C. 103 as being unpatentable over Wigley et al. (US20180044664A1), in view of Syed-Ab-Rahman et al. (Identification of Soil Bacterial Isolates Suppressing Different Phytophthora spp. and Promoting Plant Growth, Frontiers in Plant Science, Published: 18 October 2018, pages 1-18), as applied to claims 1, 2, and 117 above, and further in view of Mccormick et al. (US 2998352 A).
The limitations of claim 1 has been taught in the above rejection.
Regarding claim 72, Wigley discloses b) assembling a library of microbial consortia, each consortia comprising a plurality of microbial isolates from those screened in step a) (prior to the method or at any stage of the method) to a selective pressure to enhance the probability that the eventually-selected plants will have microbial assemblages likely to have desired properties [0144]); c) optionally screening microbial consortia from the library of microbial consortia in the presence of a soil-borne pathogen targeted by the antimicrobial compound(s) produced as a consequence of the antimicrobial signaling capacity or responsiveness of at least one microbial isolate in the microbial consortia from step (a); and d) selecting a soil-borne plant pathogen inhibiting microbial consortia (The medium may be amended or enriched with additional compounds or components, for example, a component which may assist in the interaction and/or selection of specific groups of microorganisms with the plant and each other [0193]; It is expected that these combinations will detect previously unknown, desirable property promoting (such as plant growth), synergistic interactions between microbes. Using the iterative steps a) to c) will drive the starting population of two or more microorganisms toward microbes that interact with the plant to impart a desired property or characteristic, Para. (0121]).
Wigley and Syed-Ab-Rahman do not disclose having an optimal and designed level of antimicrobial signaling capacity and responsiveness; said microbial profile comprises antimicrobial signaling capacity and responsiveness profile for each individual microbial isolate of a microbial population, comprising: i) screening the population of microbial isolates for the ability of each microbial isolate to signal and modulate the production of antimicrobial compounds in other microbial isolates from the population of microbial isolates; and/or ii) screening a population of microbial isolates for the ability of each microbial
isolate to be signaled and have their production of antimicrobial compounds modulated by other microbial isolates from the population of microbial isolates; wherein at least one microbial isolate in the microbial consortia exhibits the ability to signal and modulate the production of antimicrobial compounds in another microbial isolate in the consortia; and having an optimal and designed level of antimicrobial signaling capacity and responsiveness from the library.
Regarding Claim 79, Wigley and Syed-Ab-Rahman do not disclose that the antimicrobial signaling capacity and responsiveness profile comprises at least one dimension selected from the group consisting of: i) binary ability to signal and modulate the production of antimicrobial compounds in other microbial isolates, and ii) strength of ability to signal and modulate the production of antimicrobial compounds in other microbial isolates. iii) binary ability to be signaled and have their production of antimicrobial compounds modulated by other microbial isolates, and iiiv) strength of ability to be signaled and have their production of antimicrobial compounds modulated by other microbial isolates.
Further regarding claims 72 and 79, Mccormick discloses screening combinations of microbes to identify and select microbial compositions having an optimized output of antibiotic compositions (In accordance with the present invention it has been discovered that it is possible to produce commercially significant quantities of the tetracycline antibiotics by means of a synergistic fermentation with two or more microorganisms of the genus Streptomyces. It is a surprising feature of the present invention to discover that it is possible to use a mixture of two or more selected strains of microorganisms of the genus Streptomyces and obtain in many instances a tremendous enhancement or synergistic effect in the production of the tetracyclines even when such strains fermented singly produce none or relatively small amounts of the tetracycline antibiotics. This phenomenon is referred to herein as cosynthesis. It is also surprising to discover that both members of the cosynthesizing pair of microorganisms need not be of the same species and indeed only one member of the pair need be derived from a normally-tetracyclines-producing species of the genus Streptomyces. Thus, some strains of S. aureofaciens will demonstrate cosynthetic production of the tetracyclines with strains of the species S. albo-niger, S. albus, S. griseus, etc .... The selection of strains for the purpose of accomplishing the cosynthesis of the tetracyclines is easily carried out by the classical means of strain selection as practiced in the art, Col. 1, Lns. 34-62; It is preferable, therefore, to have a member of a cosynthetic pair which is known to function as such so as to serve as a test organism in searching for new cosynthesizing variants. By this means, the number of combinations to be tested is reduced from a very large number for each variant to only one test for each variant; the test consisting of carrying out a mixed fermentation with each new variant plus the one known cosynthesizing variant. In this situation, the discovery of a new cosynthesizing variant is marked by a significant increase in the production of tetracyclines in the mixed fermentation as compared to the single fermentations using the components being tested, Col. 2, Lns. 42-54; Strains of Streptomyces obtained from culture collections or isolated from the soil, Col. 7, Lns. 4-6).
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 the method of Wigley and Syed-Ab-Rahman to have created the antimicrobial signaling capacity and responsiveness microbial library, as shown by Mccormick (cols. 1-2, and 7) for the purpose of systematically screening and identifying combinations of microbes that can synergistically enhance antimicrobial production to enhance efficacy of antimicrobial compositions for inhibiting pathogenic organisms in the soil surrounding plants. There would be a reasonable expectation of success in combining the technique of Mccormick to the method of Wigley and Syed-Ab-Rahman because they all controlling microorganism strains.
Claim(s) 15 is rejected under 35 U.S.C. 103 as being unpatentable over Wigley et al. (US20180044664A1), in view of Syed-Ab-Rahman et al. (Identification of Soil Bacterial Isolates Suppressing Different Phytophthora spp. and Promoting Plant Growth, Frontiers in Plant Science, Published: 18 October 2018, pages 1-18), as applied to claims 1, 2, and 117 above, and further in view of Beau et al. (US10159257B2).
The limitations of claim 1 has been taught in the above rejection.
Regarding claim 15, Wigley discloses a microorganism or a combination of microorganisms of use in the methods of the invention may be selected from a pre-existing collection of individual microbial species or strains based on some knowledge of their likely or predicted benefit to a plant. Wigley further discloses nitrogen fixing bacteria Rhizobium species. Wigley further discloses that microorganisms used in the method includes but is not limited to the two prokaryotic domains, Bacteria and Archaea, as well as eukaryotic fungi and protists. By way of example, the microorganisms may include Proteobacteria (such as Pseudomonas, Enterobacter, Stenotrophomonas, Burkholderia, Rhizobium, Herbaspirillum, Pantoea, Serratia, Rahnella, Azospirillum, Azorhizobium, Azotobacter, Duganella, Delftia, Bradyrhizobiun, Sinorhizobium and Halomonas), Firmicutes (such as Bacillus, Paenibacillus, Lactobacillus, Mycoplasma, and Acetobacterium), Actinobacteria (such as Streptomyces, Rhodococcus, Microbacterium, and Curtobacterium), and the fungi Ascomycota (such as Trichoderma, Ampelomyces, Coniothyrium, Paecoelomyces, Penicillium, Cladosporium, Hypocrea, Beauveria, Metarhizium, Verticullium, Cordyceps, Pichea, and Candida, Basidiomycota (such as Coprinus, Corticium, and Agaricus) and Oomycota (such as Pythium, Mucor, and Mortierella).
Further regarding claim 15, Syed-Abu-Rhaman discloses screening for anti-oomycete activity against Phytophthora capsici, Phytophthora citricola, Phytophthora palmivora, and Phytophthora cinnamomi (abstract).
Wigley and Syed-Abu-Rhaman do not expressly disclose that plant pathogens include fungi and fungi-like organisms, include Plasmodiophoromyces, Zygomycetes and Basidiomvcetes.
Beau discloses methods to isolated compounds and methods of treating a plant to control a plant disease with the disclosed compositions and compounds (abstract). Beau further discloses soilborne pathogens, which are in particular members of the classes Plasmodiophoromycetes, Peronosporomycetes (Syn. Oomycetes), Chytridiomycetes, Zygomycetes, Ascomycetes, Basidiomycetes and Deuteromycetes (Syn. Fungi imperfecti), (col. 29, para.1). Beau further discloses that bactericides can be used in crop protection for control of Pseudomonadaceae, Rhizobiaceae, Enterobacteriaceae, Corynebacteriaceae and Streptomycetaceae (col. 29, para.2). Beau further discloses that diseases caused by pathogens from the group of the Oomycetes, for example Albugo species, for example Algubo candida; Bremia species, for example Bremia lactucae; Peronospora species, for example Peronospora pisi or P. brassicae; Phytophthora species, for example Phytophthora infestans; Plasmopara species, for example Plasmopara viticola; Pseudoperonospora species, for example Pseudoperonospora humuli or Pseudoperonospora cubensis; Pythium species, for example Pythium ultimum (col. 29, para.4). Beau further discloses that seed and soilborne decay, mould, wilt, rot and damping-off diseases caused, for example, by Alternaria species, caused for example by Alternaria brassicicola; Aphanomyces species, caused for example by Aphanomyces euteiches; Phytophthora species, caused for example by Phytophthora cactorum; Macrophomina species, caused for example by Macrophomina phaseolina; Sclerotium species, caused for example by Sclerotium rolfsii (col. 30, para.5). Beau further discloses that fruit rot caused, for example, by Aspergillus species, for example Aspergillus flavus; Botrytis species, for example Botrytis cinerea; Penicillium species, for example Penicillium expansum and P. purpurogenum; Sclerotinia species, for example Sclerotinia sclerotiorum; Verticilium species, for example Verticilium alboatrum (col. 30, para.4). Beau further discloses root and stem diseases caused, for example, by Rhizoctonia species, such as, for example Rhizoctonia solani; Beau further discloses that club root caused, for example, by Plasmodiophora species, for example Plamodiophora brassicae (col. 30, para.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 modified the method of Wigley and Syed-Ab-Rahman to have used plant pathogens include fungi and fungi-like organisms, as shown by Beau (cols. 29-30) for the purpose of selecting microbial isolates that can inhibit the growth of a known plant pathogens. There would be a reasonable expectation of success in combining the technique of Beau to the method of Wigley and Syed-Ab-Rahman because they all controlling pathogens in crops.
Claim(s) 16 is rejected under 35 U.S.C. 103 as being unpatentable over Wigley et al. (US20180044664A1), in view of Syed-Ab-Rahman et al. (Identification of Soil Bacterial Isolates Suppressing Different Phytophthora spp. and Promoting Plant Growth, Frontiers in Plant Science, Published: 18 October 2018, pages 1-18), as applied to claims 1, 2, and 117 above, and further in view of Thakur et al. (Biocontrol of Soilborne Root Pathogens: An Overview. In: Giri, B., Prasad, R., Varma, A. (eds) Root Biology. Soil Biology, vol 52. Springer, Cham. pp 181–220; 02 May 2018).
The limitations of claim 1 has been taught in the above rejection.
Regarding claim 16, Wigley and Syed-Ab-Rahman do not disclose that the soil-borne pathogen is selected from the group consisting of: species of Erwinia, Rhizomonas, Streptomyces scabies, Pseudomonas, and Xanthomona. Thakur discloses that few species of bacteria such as species belonging to genera Erwinia, Rhizomonas, and Streptomyces are known to cause root infections. Thakur further discloses that Streptomyces scabies, is one of the common examples of root disease-causing agents (section: 7.8.2 Bacterial Pathogens). Thakur further discloses several species of Pseudomonas for biological control of plant root diseases (section: 7.9.1 Antibiosis). Thakur further discloses a diverse array of microorganisms belonging to genera such Erwinia, Pseudomonas, and Xanthomona for biological control of plant root diseases (section: 7.10.1 Bacteria).
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 the method of Wigley and Syed-Ab-Rahman to have used the soil-borne pathogens, as shown by Thakur (sections: 7.8.2, 7.9.1, and 7.10.1) for the purpose of selecting soil-borne pathogens that can inhibit the growth of a known plant pathogens. There would be a reasonable expectation of success in combining the technique of Thakur to the method of Wigley and Syed-Ab-Rahman because they all controlling pathogens in crops.
Claim(s) 128-129 and 132 are rejected under 35 U.S.C. 103 as being unpatentable over Wigley et al. (US20180044664A1), in view of Syed-Ab-Rahman et al. (Identification of Soil Bacterial Isolates Suppressing Different Phytophthora spp. and Promoting Plant Growth, Frontiers in Plant Science, Published: 18 October 2018, pages 1-18), as applied to claims 1, 2, and 117 above, and further in view of Hafeel et al. (US 20090229179 A1).
The limitations of claims 1 and 117 have been taught in the above rejection.
Regarding Claim 128, Wigley and Syed-Ab-Rahman do not disclose creating a soil nutrient profile. However, Hafeel discloses a method for prescriptive biocontrol of a soil-borne plant pathogen, said method comprising: creating a soil nutrient profile from soil from a locus in need of prescriptive biocontrol; creating a customized carbon amendment for application on the locus, wherein the customized carbon amendment supplements a carbon deficiency in the nutrient soil profile (The invention relates to a method of land management involving the assessment of soil quality as a control parameter in practice of such method [0001]; With this object in view, the present invention provides-in one aspect-a method for land management comprising measuring, as a measure of effectiveness of the method, soil quality of a soil sample collected from land under management by a microbial bioassay [0007]; Conversely, if a bacterial deficiency is identified a strategy to augment soil biological activity may be implemented. Microbial inocula and bacteria rich fertilizers such as compost tea or fish emulsion, may be applied to increase microbial activity [0024]; Manuring and compost application promote soil microbial activity directly, primarily by supplying a metabolisable carbon source together with nutrients, Para. [0004]; The efficacy of trichoderma as a biocontrol of plant pathogens may be enhanced if used in combination with compost tea [0062]).
Regarding Claim 129, Wigley and Syed-Ab-Rahman do not disclose applying the customized soil carbon amendment to the locus. However, Hafeel discloses the step of applying the customized soil carbon amendment to the locus (In such embodiment, the present invention provides a biological method of managing crop production comprising the following steps: ... c) determining objective standards for soil and crops in said area and a biological nutrient application program for the area aimed at achieving those of the objective standards which are specific to the specified crop, the program consisting of application of biologically acceptable components not known to cause genetic modification of plants; d) conducting the biological nutrient application program, Paras. [0015]-[00191).
Regarding Claim 132, Wigley and Syed-Ab-Rahman do not disclose creating a soil nutrient profile by providing a soil sample and analyzing the carbon nutrient. However, Hafeel discloses the method of claim 128, wherein the step of creating a soil nutrient profile comprises the steps of: i) providing a soil sample from the locus in need of prescriptive biocontrol; and ii) analyzing the carbon nutrient contents of said soil sample (With this object in view, the present invention provides-in one aspect-a method for land management comprising measuring, as a measure of effectiveness of the method, soil quality of a soil sample collected from land under management by a microbial bioassay ... Such measurement may be employed to identify the availability of nutrients, Para. [0007)).
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 the method of Wigley and Syed-Ab-Rahman to have created a soil nutrient profile, as shown by Hafeel ([0001], [0007], and [0062]) for the purpose assessing soil quality by a microbial bioassay to increase productivity of crops. There would be a reasonable expectation of success in combining the technique of Hafeel to the method of Wigley and Syed-Ab-Rahman because they all controlling pathogens in crops.
Response to Arguments
Applicant's arguments filed 02/03/2025 have been fully considered but they are not persuasive. Applicant states that the cited art does not teach or suggest all elements of the claimed method. It is respectfully submitted that this is not persuasive. Applicant’s amendments to the claims necessitated a new round of art rejections, as such, the combination of Wigley and Syed-Abu-Rahman teach all limitations of claim 1.
Conclusion
No claims are allowed.
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/G.S./ Examiner, Art Unit 1686
/LARRY D RIGGS II/ Supervisory Patent Examiner, Art Unit 1686