DETAILED ACTION
Applicant’s amendment submitted 2/6/2026 is acknowledged. Claim 18 is currently amended. Claims 1-17, 19, and 21-26 are canceled. Claims 18, 20, and 27 remain pending in the instant application and are the subject of this office 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/6/2026 has been entered.
Priority
The instant application is a U.S. National Phase of PCT/US2019/053226 filed on 9/26/2019 and claims Domestic Benefit to U.S. Provisional Patent Application No. 62/738,504 filed on 9/28/2018.
Claim Objections
Claim 18 is objected to because of the following informalities:
Claim 18 recites “the medium” in line 8 but should recite “the culture medium” for consistency within the claim.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 18, 20, and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Dolman et al. (Process Biochem., 2017, Vol. 54, pp.162-171) in view of Lonhienne et al. (Crop Sci., 2014, Vol. 54, p.785-790; of record) and Gemin et al. (Revista de Ciências Agrárias Revista, 2018, Vol. 41(2), p.424-431; published 6/1/2018; of record), as evidenced by De Graeve et al. (FEMS Yeast Res., 2018, Vol. 18, p.1-13; of record).
Regarding claim 18, Dolman teaches a method of gravity separation of sophorolipid from a fermentation broth, enabling the removal of a sophorolipid phase of either higher or lower density than the bulk fermentation broth, while cells and other media components are recirculated and returned to the bioreactor (see Abstract, p.163, paragraph bridging left and right columns, p.164, left column, 3rd and 4th paragraphs, p.165, left column, 1st paragraph, p.170, left column, 6th paragraph,-right column, 2nd paragraph, Table 2, and Figs. 3 and 5). Sophorolipid was produced by Candida bombicola (now known as Starmerella bombicola – for evidence see De Graeve – p.2, right column, 1st passage) in a liquid fermenter bioreactor (see p.163, right column, 1st paragraph). After cultivating C. bombicola, the fermentation broth is placed into a separator and allowed to settle until a sophorolipid phase develops that can be removed from the fermentation broth, leaving behind cells and other media components (see p.163, left column, 1st and 3rd paragraphs, p.164, left column, 3rd and 4th paragraphs, and Figs. 2-3). Dolman teaches the method of gravity separation of sophorolipid leaves a residual amount of sophorolipid behind in the fermentation medium (see p.167, left column, 1st paragraph,- paragraph bridging pp.167-168, and Table 2). The instant specification at p.2, lines 15-24, discloses that a liquid form of nutrient medium is considered to be a submerged fermentation system. Thus, Dolman teaches a method of cultivating Starmerella bombicola yeast in a culture medium using a submerged fermentation system, wherein said Starmerella bombicola yeast produces a sophorolipid that is secreted into the culture medium, and wherein a portion of said sophorolipid settles to form a sophorolipid layer in the culture medium; removing said sophorolipid layer from the culture medium, thereby leaving behind in the fermentation system yeast fermentation product comprising supernatant, yeast metabolites comprising residual sophorolipid, and yeast cell biomass.
Dolman does not teach removing said fermentation product from the fermentation system; and applying said yeast fermentation product to the plant’s leaves.
Lonhienne teaches that microorganisms can promote plant growth and health through a range of mechanisms, including supplying plants with biologically-fixed nitrogen, phytohormones, volatiles, defense compounds, and enzymes, and further shows that whole yeast cells are taken up and used as nutrient sources by dicotyledonous species Arabidopsis thaliana and tomato (see p.786, left column, 1st paragraph). Lonhienne further teaches disposal of yeast waste generated by the brewing and fermentation industries is problematic and costly and requires technologies for recycling and teaches that formulations based on organic wastes from yeast are considered fertilizers in organic and conventional agriculture (see p.786, left column, 2nd paragraph).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have applied the yeast fermentation wastes comprising yeast cell biomass and fermentation broth including residual sophorolipid generated from C. bombicola fermentation systems, as taught by Dolman, to plants as fertilizers, as taught by Lonhienne, to arrive at the claimed invention. One of ordinary skill in the art would have been applying methods known in the art for recycling wastes generated in yeast fermentation systems as fertilizers for promoting plant health and growth, yielding predictable results. There would have been a reasonable expectation of success because Lonhienne teaches that whole yeast cells are taken up and used as nutrient sources by dicotyledonous plant species.
Lonhienne does not teach applying said composition to the plant’s leaves.
Gemin evaluates the growth and chlorophyll content of organic tomato seedlings after applying a fermented broth of Saccharomyces cerevisiae as a biofertilizer (see Abstract). Gemin teaches that foliar application (i.e., application to the plant’s leaves) of the fermented broth of S. cerevisiae to the organic tomato seedlings showed remarkable efficiency in promoting tomato seedlings growth, increasing leaves chlorophyll content, increasing leaves and stems growth, roots volume, and altering its diameter partitioning, improving the rate of thinner roots (see Abstract, p.426, right column, 1st-3rd passages, and Figs. 1-4).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have applied the yeast fermentation wastes comprising yeast cell biomass and fermentation broth including residual sophorolipid generated from C. bombicola fermentation systems, as taught by Dolman in view of Lonhienne, foliarly to plants, as taught by Gemin, to arrive at the claimed invention. One of ordinary skill in the art would have been motivated to apply the yeast fermentation wastes left over after separating sophorolipid from a C. bombicola fermentation culture, as taught by Dolman in view of Lonhienne, as a foliar treatment because Gemin teaches a yeast-based fermentation broth applied foliarly to organic tomato plants showed remarkable efficiency in promoting tomato seedlings growth, increasing leaves chlorophyll content, increasing leaves and stems growth, roots volume, and altering its diameter partitioning, improving the rate of thinner roots. One of ordinary skill in the art would have had a reasonable expectation of success because Lonhienne also teaches the use of yeast-based fermentation wastes as a fertilizer for tomato plants and in organic agriculture, yielding predictable results.
Regarding claim 20, Lonhienne teaches adding yeast to plant growing pots which is interpreted as adding yeast to the plant soil (see p.786, right column, last paragraph).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have additionally applied the Candida bombicola fermentation waste to the soil of plants, to arrive at the claimed invention. One of ordinary skill in the art would have been motivated to recycle the waste obtained from the yeast fermentation system as a soil fertilizer for plants, as taught by Lonhienne, yielding predictable results. Therefore, claim 20 is prima facie obvious.
Regarding claim 27, all active method steps of the claimed invention are taught by Dolman in view of Lonhienne and Gemin above. Dolman further teaches two forms of sophorolipid are synthesized by C. bombicola—lactonic and acidic, reading on organic acids (see p.162, left column, 1st paragraph, p.163, left column, 1st paragraph, p.170, left column, 4th-5th paragraphs, and Fig. 1). Thus, the left over fermentation culture after sophorolipid separation comprises organic acids.
Thus, claims 18, 20, and 27 are prima facie obvious over Dolman in view of Lonhienne and Gemin.
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 18, 20, and 27 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No. 11,760,969 to Farmer et al. in view of Dolman et al. (Process Biochem., 2017, Vol. 54, pp.162-171) in view of Lonhienne et al. (Crop Sci., 2014, Vol. 54, p.785-790; of record) and Gemin et al. (Revista de Ciências Agrárias Revista, 2018, Vol. 41(2), p.424-431; published 6/1/2018; of record), as evidenced by De Graeve et al. (FEMS Yeast Res., 2018, Vol. 18, p.1-13; of record).
Patent claim 1 of Farmer ‘969 recites a method for providing a microbe-based product selected from the group consisting of microbes, a broth in which the microbes were grown, a biosurfactant, and combinations thereof (lines 1-4), wherein said method comprises growing the microbes in a microbe growth facility under specific growth conditions (lines 4-6), harvesting said microbes, broth and/or biosurfactant to produce said microbe-based product and transporting the microbe-based product to a location for use (lines 6-8), wherein the biosurfactant is selected from the group consisting of a sophorolipid (SLP) and a mannosylerythritol lipid (MEL) (lines 7-9), wherein said microbes are selected from the group consisting of Pseudomonas aeruginosa, Starmerella bombicola, Pichia anomala, Wickerhamomyces anomalus, Trichoderma harzianum, Bacillus amyloliquefaciens, and Pseudozyma aphidis (lines 10-14), wherein said microbe growth facility comprises a plurality of independent modular growth vessels in which the same, or different, microbes grow, under the same, or different, growth conditions (lines 15-18), and wherein at least one of the growth conditions that is varied between the independent modular growth vessels is selected from the group consisting of growth medium, oxygenation, pH, agitation, and temperature (lines 19-22). Patent claim 5 of Farmer ‘969 recites the method, according to claim 1, further comprising applying the microbe-based product to a site and/or environment selected from the group consisting of: soil, agricultural pests, weeds, seeds, plants, plant roots, animals, animal waste, animal feed, ore, an oil spill, a hazardous waste site, an oil well, an oil rig, piping, and tanks.
The difference between the instant claims and that of Patent ‘969 is that the instant claims specifically recite a method for enhancing the growth, health and/or yield of a plant by removing a sophorolipid layer from the culture medium, thereby leaving behind in the fermentation system a yeast fermentation product comprising supernatant, yeast metabolites comprising residual sophorolipid, and yeast cell biomass; removing said yeast fermentation product from the fermentation system, and applying said yeast fermentation product to the plant’s leaves.
Dolman teaches a method of gravity separation of sophorolipid from a fermentation broth, enabling the removal of a sophorolipid phase of either higher or lower density than the bulk fermentation broth, while cells and other media components are recirculated and returned to the bioreactor (see Abstract, p.163, paragraph bridging left and right columns, p.164, left column, 3rd and 4th paragraphs, p.165, left column, 1st paragraph, p.170, left column, 6th paragraph,-right column, 2nd paragraph, Table 2, and Figs. 3 and 5). Sophorolipid was produced by Candida bombicola (now known as Starmerella bombicola – for evidence see De Graeve – p.2, right column, 1st passage) in a liquid fermenter bioreactor (see p.163, right column, 1st paragraph). After cultivating C. bombicola, the fermentation broth is placed into a separator and allowed to settle until a sophorolipid phase develops that can be removed from the fermentation broth, leaving behind cells and other media components (see p.163, left column, 1st and 3rd paragraphs, p.164, left column, 3rd and 4th paragraphs, and Figs. 2-3). Dolman teaches the method of gravity separation of sophorolipid leaves a residual amount of sophorolipid behind in the fermentation medium (see p.167, left column, 1st paragraph,- paragraph bridging pp.167-168, and Table 2). The instant specification at p.2, lines 15-24, discloses that a liquid form of nutrient medium is considered to be a submerged fermentation system. Thus, Dolman teaches a method of cultivating Starmerella bombicola yeast in a culture medium using a submerged fermentation system, wherein said Starmerella bombicola yeast produces a sophorolipid that is secreted into the culture medium, and wherein a portion of said sophorolipid settles to form a sophorolipid layer in the culture medium; removing said sophorolipid layer from the culture medium, thereby leaving behind in the fermentation system yeast fermentation product comprising supernatant, yeast metabolites comprising residual sophorolipid, and yeast cell biomass.
Lonhienne further teaches disposal of yeast waste generated by the brewing and fermentation industries is problematic and costly and requires technologies for recycling and teaches that formulations based on organic wastes from yeast are considered fertilizers in organic and conventional agriculture (see p.786, left column, 2nd paragraph).
Gemin teaches evaluating the growth and chlorophyll content of organic tomato seedlings when applying a fermented broth of Saccharomyces cerevisiae as a biofertilizer (see Abstract). Gemin teaches that foliar application (i.e. application to the plant’s leaves) of the fermented broth of S. cerevisiae to the organic tomato seedlings showed remarkable efficiency in promoting tomato seedlings growth, increasing leaves chlorophyll content, increasing leaves and stems growth, roots volume, and altering its diameter partitioning, improving the rate of thinner roots (see Abstract, p.426, right column, 1st-3rd passages, and Figs. 1-4).
Therefore, it would have been obvious to separate sophorolipid from the microbe-based product of patent ‘969 claim 1 by gravity separation, as taught by Dolman, and to foliarly apply the waste products generated by the fermentation of the yeast Starmerella bombicola to plant’s to promote plant growth and health, as taught by Lonhienne and Gemin. One of ordinary skill in the art would have been applying a known method in the art for removing sophorolipid from a fermentation system, yielding predictable results. One of ordinary skill in the art would have been motivated to apply the resulting microbe-based composition comprising yeast cell biomass, culture medium, and residual sophorolipid to plant leaves because Lonhienne teaches the wastes generated in yeast fermentation are beneficial fertilizers for plants and Gemin teaches improved growth characteristics in tomato plants by applying a yeast-based fermentation broth foliarly.
Claims 18, 20, and 27 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 11,959,062 to Farmer et al. in view of Dolman et al. (Process Biochem., 2017, Vol. 54, pp.162-171) in view of Lonhienne et al. (Crop Sci., 2014, Vol. 54, p.785-790; of record) and Gemin et al. (Revista de Ciências Agrárias Revista, 2018, Vol. 41(2), p.424-431; published 6/1/2018; of record), as evidenced by De Graeve et al. (FEMS Yeast Res., 2018, Vol. 18, p.1-13; of record).
Patent claim 1 of Farmer ‘062 recites a method for providing a microbe-based product selected from the group consisting of microbes, a broth in which the microbes were grown, a biosurfactant produced by the microbes, and combinations thereof (lines 1-4), wherein said method comprises growing the microbes in a microbe growth facility (lines 4-6), harvesting said microbes, broth and/or biosurfactant, creating said microbe-based product from said harvested microbes, broth and/or biosurfactant, and transporting the microbe-based product to a location for use (lines 6-9); wherein the biosurfactant is selected from the group consisting rhamnolipids, sophorolipids (SLP) and mannosylerythritol lipids (MEL) (lines 10-12); wherein said microbes are selected from the group consisting of Pseudomonas aeruginosa, Starmerella bombicola, Pichia anomala, Wickerhamomyces anomalus, Trichoderma harzianum, Bacillus amyloliquefaciens, Bacillus subtilis, and Pseudozyma aphidis (lines 13-17); wherein said microbe growth facility comprises a plurality of independent modular growth vessels in which the same, or different, microbes grow, under the same, or different, growth conditions that can be varied between the independent growth vessels (lines 18-22); wherein at least one of the growth conditions that can be varied between the independent modular growth vessels is selected from the group consisting of growth medium, oxygenation, pH, agitation, and temperature (lines 23-26); and wherein said transport of the microbe-based product is in a container having a volume of 1 gallon to 1,000 gallons, or via a conduit (lines 27-30). Patent claim 5 of Farmer ‘062 recites further comprising applying the microbe-based product to a site and/or an environment selected from the group consisting of: soil, agricultural pests, weeds, seeds, plants, plant roots, animals, animal waste, animal feed, ore, an oil spill, a hazardous waste site, an oil well, an oil rig, an oil piping, and oil tanks (lines 1-6). Patent claim 6 of Farmer ‘062 recites wherein the site is selected from the group consisting of soil, agricultural pests, weeds, seed, plants, or plant roots (lines 1-3); and wherein said applying is done via an irrigation system (lines 3-4). Patent claim 8 of Farmer ‘062 recites wherein the site is selected from the group consisting of seeds, plant leaves, and plant roots (lines 1-3), and where the method further comprises monitoring a measure of plant health and/or yield (lines 3-4).
The difference between the instant claims and that of Patent ‘062 is that the instant claims specifically recite a method for enhancing the growth, health and/or yield of a plant by removing a sophorolipid layer from the culture medium, thereby leaving behind in the fermentation system a yeast fermentation product comprising supernatant, yeast metabolites comprising residual sophorolipid, and yeast cell biomass; removing said yeast fermentation product from the fermentation system, and applying said yeast fermentation product to the plant’s leaves.
Dolman teaches a method of gravity separation of sophorolipid from a fermentation broth, enabling the removal of a sophorolipid phase of either higher or lower density than the bulk fermentation broth, while cells and other media components are recirculated and returned to the bioreactor (see Abstract, p.163, paragraph bridging left and right columns, p.164, left column, 3rd and 4th paragraphs, p.165, left column, 1st paragraph, p.170, left column, 6th paragraph,-right column, 2nd paragraph, Table 2, and Figs. 3 and 5). Sophorolipid was produced by Candida bombicola (now known as Starmerella bombicola – for evidence see De Graeve – p.2, right column, 1st passage) in a liquid fermenter bioreactor (see p.163, right column, 1st paragraph). After cultivating C. bombicola, the fermentation broth is placed into a separator and allowed to settle until a sophorolipid phase develops that can be removed from the fermentation broth, leaving behind cells and other media components (see p.163, left column, 1st and 3rd paragraphs, p.164, left column, 3rd and 4th paragraphs, and Figs. 2-3). Dolman teaches the method of gravity separation of sophorolipid leaves a residual amount of sophorolipid behind in the fermentation medium (see p.167, left column, 1st paragraph,- paragraph bridging pp.167-168, and Table 2). The instant specification at p.2, lines 15-24, discloses that a liquid form of nutrient medium is considered to be a submerged fermentation system. Thus, Dolman teaches a method of cultivating Starmerella bombicola yeast in a culture medium using a submerged fermentation system, wherein said Starmerella bombicola yeast produces a sophorolipid that is secreted into the culture medium, and wherein a portion of said sophorolipid settles to form a sophorolipid layer in the culture medium; removing said sophorolipid layer from the culture medium, thereby leaving behind in the fermentation system yeast fermentation product comprising supernatant, yeast metabolites comprising residual sophorolipid, and yeast cell biomass.
Lonhienne further teaches disposal of yeast waste generated by the brewing and fermentation industries is problematic and costly and requires technologies for recycling and teaches that formulations based on organic wastes from yeast are considered fertilizers in organic and conventional agriculture (see p.786, left column, 2nd paragraph).
Gemin teaches evaluating the growth and chlorophyll content of organic tomato seedlings when applying a fermented broth of Saccharomyces cerevisiae as a biofertilizer (see Abstract). Gemin teaches that foliar application (i.e. application to the plant’s leaves) of the fermented broth of S. cerevisiae to the organic tomato seedlings showed remarkable efficiency in promoting tomato seedlings growth, increasing leaves chlorophyll content, increasing leaves and stems growth, roots volume, and altering its diameter partitioning, improving the rate of thinner roots (see Abstract, p.426, right column, 1st-3rd passages, and Figs. 1-4).
Therefore, it would have been obvious to separate sophorolipid from the microbe-based product of patent ‘062 claim 1 by gravity separation, as taught by Dolman, and to foliarly apply the waste products generated by the fermentation of the yeast Starmerella bombicola to plant’s to promote plant growth and health, as taught by Lonhienne and Gemin. One of ordinary skill in the art would have been applying a known method in the art for removing sophorolipid from a fermentation system, yielding predictable results. One of ordinary skill in the art would have been motivated to apply the resulting microbe-based composition comprising yeast cell biomass, culture medium, and residual sophorolipid to plant leaves because Lonhienne teaches the wastes generated in yeast fermentation are beneficial fertilizers for plants and Gemin teaches improved growth characteristics in tomato plants by applying a yeast-based fermentation broth foliarly.
Response to Arguments
Applicant’s arguments with respect to claims 18, 20, and 27 have been considered but are moot because the new ground of rejection does not rely on the specific combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Applicant’s arguments with respect to Shah and Hu are moot because the rejection no longer relies on Shah and Hu. The rejection now relies on Dolman for teaching a method of gravity separation of a sophorolipid phase that settles in a fermentation culture of Candida bombicola (a.k.a. Starmerella bombicola), leaving behind, culture medium, yeast cell biomass, and residual sophorolipid (see Abstract, p.163, paragraph bridging left and right columns, p.164, left column, 3rd and 4th paragraphs, p.165, left column, 1st paragraph, p.170, left column, 6th paragraph,-right column, 2nd paragraph, Table 2, and Figs. 3 and 5). Lonhienne teaches that microorganisms can promote plant growth and health through a range of mechanisms, including supplying plants with biologically fixed nitrogen, phytohormones, volatiles, defense compounds, and enzymes, and further shows that whole yeast cells are taken up and used as nutrient sources by dicotyledonous species Arabidopsis thaliana and tomato (see p.786, left column, 1st paragraph). Lonhienne further teaches disposal of yeast waste generated by the brewing and fermentation industries is problematic and costly and requires technologies for recycling and teaches that formulations based on organic wastes from yeast are considered fertilizers in organic and conventional agriculture (see p.786, left column, 2nd paragraph). Gemin teaches evaluating the growth and chlorophyll content of organic tomato seedlings when applying a fermented broth of Saccharomyces cerevisiae as a biofertilizer (see Abstract). Gemin teaches that foliar application (i.e. application to the plant’s leaves) of the fermented broth of S. cerevisiae to the organic tomato seedlings showed remarkable efficiency in promoting tomato seedlings growth, increasing leaves chlorophyll content, increasing leaves and stems growth, roots volume, and altering its diameter partitioning, improving the rate of thinner roots (see Abstract, p.426, right column, 1st-3rd passages, and Figs. 1-4). A person of ordinary skill in the art, looking Dolman in view of Lonhienne and Gemin would have found it obvious to have applied the fermentation wastes generated from yeast fermentation systems to plants as fertilizers, as taught by Lonhienne, using the fermentation wastes left over after extracting sophorolipids from a Starmerella bombicola fermentation broth culture because Lonhienne demonstrates recycling wastes generated in yeast fermentation systems as fertilizers for promoting plant health and growth, yielding predictable results. An ordinarily skilled artisan looking to Gemin would have found it obvious to apply the “left behind” composition foliarly since Gemin demonstrated a yeast-based fermentation broth applied foliarly to organic tomato plants showed remarkable efficiency in promoting tomato seedlings growth, increasing leaves chlorophyll content, increasing leaves and stems growth, roots volume, and altering its diameter partitioning, improving the rate of thinner roots.
In Applicant’s Remarks, see paragraph bridging p.6-7, Applicant disagrees that the obviousness double patenting rejection teaches the instantly claimed invention. Applicant argues the double patenting rejection does not satisfy several elements of the claimed composition but does not specifically point to any elements. This is not found persuasive because no specific arguments have been made. Thus, the rejection is maintained but no longer relies on Shah or Hu as previously applied.
Conclusion
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/J.P.S./ Examiner, Art Unit 1651
/MELENIE L GORDON/ Supervisory Patent Examiner, Art Unit 1651