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 .
DETAILED ACTION
Applicant’s arguments, filed 2/23/2026, have been fully considered but they are not deemed to be fully persuasive. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objects are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
New Grounds of Rejection
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.
Claim 7 is 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. Claim 7 recites the method of claim 1 “wherein the infection of the plant species to be prevented and/or treated is caused by a mildew-causing pathogen.” As the infection of the plant species to be prevented/treated in claim 1 is fungal pathogens, the recitation in claim 7 “wherein the infection of the plant species to be prevented and/or treated is caused by a mildew-causing pathogen” lacks antecedent basis.
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.
The declaration under 37 C.F.R. 1.132 filed 2/23/2026 is not sufficient to overcome the following grounds of rejection
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3, 5-9, 11-15 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2018/051344 to Avidov (IDS filed 4/20/2021) in view of De (Springer Briefs in molecular Science, 2014) in further view of Wang (Pesticide Biochemistry & Physiology, 2007). Avidov teaches a method for preventing and/or treating infection of plant by fungal pathogens, wherein said method comprises the steps of: a) providing a mixture of one or more non-pathogenic bacteria and one or more activating agents; and b) administering the mixture of step (a) to said host species (claim 1), and further a method for preventing and/or treating infection of plant or animal host species by fungal, bacterial and/or viral pathogens, wherein said method comprises the steps of: a) providing separately: (i) a composition comprising one or more non-pathogenic bacteria; and (ii) a composition comprising one or more activating agents; and b) separately administering each of compositions (i) and (ii) to said host species (claim 2), wherein the strain is Bacillus subtilis and is the QST 713 strain (claims 4-5), wherein the non-pathogenic bacteria are one or more species of pro biotic bacteria (claim 6), wherein the probiotic bacteria are selected from the group consisting of L. rhamnosus, L. Casei, L. Plantarum, L. helveticus Longum, B. breve, Pediococcus Acidilactici, Lactococcus lactis and combinations thereof (claim 7), the agent may be applied to soil (Example 13), wherein the first composition to be administered to the host species is the composition comprising the non-pathogenic bacteria (claim 8), wherein the first composition to be administered to the host species is the composition comprising one or more activating agents (claim 9) ,wherein the one or more non-pathogenic bacteria, one or more activating agents and/or combinations thereof are administered to the plant by means of foliar administration (claim 22), wherein the one or more non-pathogenic bacteria, one or more activating agents and/or combinations thereof are administered to the plant by means of adding these substances to the medium in which said plant is growing (claim 23), wherein the non-pathogenic bacteria, one or more activating agents and/or combinations thereof are administered in the form of granules coated with these substances (claim 24), wherein the infection of the plant species to be prevented and/or treated is caused by a mildew-causing pathogen (page 45, item 5), wherein the one or more activating agents the activating agents comprise a mixture of Sdareol, Naringin, Nootkatone, Steviol glycoside and cannabidiol (substances having anti-inflammatory activity, and wherein said anti-inflammatory substances each have an IC50 for the inhibition of NO production of less than 1.5 mg/ml and/or an IC50 for the inhibition of TNF-alpha production of less than 2.5 mg/ml) (claim 16).
Although Avidov teaches adding a mixture of non-pathogenic bacteria and one or more activating agents to soil, or in the alternative, applying a foliar spray comprising the mixture, it fails to teach the combination of the two steps as required by instant claim 1, and further fails to teach a kit according to instant claim 9 comprising a container comprising granules coated with a mixture of one or more nonpathogenic bacte1ia and one or more activating agents; and a container comprising a liquid composition suitable for administration by foliar spraying, comprising one or more non-pathogenic bacteria and one or more activating agents.
De teaches granular (GR) formulations applied to soil are used for pesticide reduction in plants, including herbicides and insecticides. The active ingredient concentration is usually from 1 to 40 %, and the granule mesh size is generally between 250 and 1,000 l. The granules should be non-caking, non-dusty, free flowing and should disintegrate in the soil so as to release the active ingredient. Granules are usually made either by coating a fine powder onto a substrate, e.g., sand (using a sticker such as PVP solution), or by solvent impregnation onto an absorbent carrier. Resins or polymers may be sprayed onto the granules to control release rates. (Section 5.1.1).
Wang teaches that Foliar uptake of pesticides is a diffusion process across the epicuticular wax, the cuticle, and the plasma membrane of epidermal cells (section 2.1.) One of the ways to improve the efficacy of pesticides is through increasing the penetration of AIs into plant foliage (1. Introduction). Adjuvants (activators) such as surfactants, oils, and ammonia salts significantly increase the foliar penetration of pesticides (Section 5).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to treat infection of plant species by fungal pathogens by providing a mixture of one or more non-pathogenic bacteria and one or more activating agents, as taught by Avidov; and administer the mixture by means of both adding a plurality of granules coated with said mixture to the medium in which said plant is growing; and applying a foliar spray comprising said mixture to the aerial parts of said plant species. The motivation for this is that the art teaches that each of these steps is efficacious for the treatment of infection of plant species, and the two steps applied in combination, which have different routes of administration of the active agent into the plant, will treat the plant by two different mechanisms and increase the efficacy of the formulation. It would have been further obvious to prepare a kit comprising a first container containing granules coated with a mixture of one or more non pathogenic bacteria and one or more activating agents; and a second container containing a liquid composition suitable for administration by foliar spraying, comprising one or more non-pathogenic bacteria and one or more activating agents. The motivation for this is that by having such a kit, the agents will be together for the time of administration.
Applicant’s arguments have been fully considered but are not found persuasive. The examiner appreciates the declaration declaration under 37 C.F.R. 1.132 filed 2/23/2026 and the clarification requested in the previous office action that the missing “2kg/Dunam” from Rx no. 9 in However, the results are not sufficient to overcome the rejection at least because they are not commensurate in scope for the followings reasons. The examiner agrees that one would not expect the combination shown in Rx no. 9 to have the large % inoculation as shown in the table. However, the results are not commensurate in scope with the claimed invention. As there is only one example given, the results are limited to mildew formation of cucumber plants in the amounts provided. By contrast, the invention encompasses the genus of fungal pathogens. Fungal pathogens that infect plants are in the thousands. Further, the claims are open to any time difference between the administration steps. The artisan would not accept, based on the one example given, related to specific agents in specific amounts administered at a specific time for treating milder in a particular plant, that the results would extend over the scope of the much broader invention. The examiner again notes that the claims are open to any time difference between step (i) and step (ii), and in step (i), which is directed to adding a plurality of coated granules with said mixture to the medium in which said plant is growing, there is no indication that the adding step is limited to when the plant is post-emergent, but only requires that the “plant is growing.” If applicant intends their invention to be limited to a method for preventing and/or treating infection of post-emergent plants only, the claim should reflect this, and if the plant that is growing is required to have aerial parts in steps (i) and (ii), this should also be reflected in the claim. The examiner recognizes that at 5.1.1 of De that the term “preemergence” appears, but the complete teaching in this section is that granular formulations “are used for direct broadcasting to the field often as preemergence herbicides or as soil insecticides.” The language use indicates that direct broadcasting is used often (but not always) as preemergence herbicides, or as soil insecticides. Thus, this sentence does not teach away from application of granular formulations for herbicides and soil insecticides, only that herbicides are broadcasted to the field often as preemergence herbicides. Regarding the sentence that “granules are becoming less popular now because of the increasing use of postemergence herbicides,” the examiner’s response is that applicant’s step (i) does not require postemergence application, and further regarding applicant’s step (ii), that De teaches that particles (granules) in spray form are used in postemergence application (Sections 5.1.4 and 5.1.5), which is not a teaching away from postemergence application using a spray, but for postemergence application using a spray. Regarding applicant’s argument that none of the granular formulations taught comprise bacterial cells, the examiner’s response is that Avidov teaches a method for preventing and/or treating infection of plant by fungal, bacterial and/or viral pathogens, wherein said method comprises the steps of: a) providing a mixture of one or more non-pathogenic bacteria and one or more activating agents; and b) administering the mixture of step (a) to said host species (claim 1), and further a method for preventing and/or treating infection of plant or animal host species by fungal, bacterial and/or viral pathogens, wherein said method comprises the steps of: a) providing separately: (i) a composition comprising one or more non-pathogenic bacteria; and (ii) a composition comprising one or more activating agents; and b) separately administering each of compositions (i) and (ii) to said host species (claim 2), wherein the strain is Bacillus subtilis and is the QST 713 strain (claims 4-5 Regarding applicant’s argument that Wang is focused on chemical agents having small molecular weight, whereas the present invention requires application of a mixture of non-pathogenic bacteria and activating agents, the examiner’s response is that a reference is not limited to preferred embodiments but may be relied on for all that it teaches. Wang was relied on for its teaching that a way known in the art to improve the efficacy of pesticides is through increasing the penetration of AIs into plant foliage (1. Introduction) and adjuvants (activators) such as surfactants, oils, and ammonia salts increase the foliar penetration of pesticides (Section 5). Wang does not limit this teaching to only those pesticides with low molecular weight components, and there is nothing in Wang that would dissuade one to treat infection of plant species by fungal pathogens and one or more non-pathogenic bacteria and one or more activating agents, as the art teaches that each of these steps is efficacious for the treatment of infection of plant species, and the two steps applied in combination, which have different routes of administration of the active agent into the plant, will treat the plant by two different mechanisms and increase the efficacy of the formulation.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAUL W DICKINSON whose telephone number is (571)270-3499. The examiner can normally be reached on M-F 9 AM to 7:30 PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Hartley can be reached on 571-272-0616. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAUL W DICKINSON/Primary Examiner, Art Unit 1618
Mach 25, 2026
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