DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 08/13/2026 has been entered.
Status of Claims
Receipt of Remarks/Amendments filed on 08/13/2026 is acknowledged. Claims 1, 6, 8, 23-26, and 28-30 are amended, claims 2-5, 7, 9-10, 14, 16-17, 19, and 22 are canceled, and claim 31 is new. Claims 11-13, 15, and 21 remain withdrawn as being directed to a non-elected invention. Claims 1, 6, 8, 18, 20, and 23-31 are examined on the merits herein.
Priority
The instant application filed 05/28/2021, is a 371 filing of PCT/EP2019/083149, filed 11/29/2019, which claims benefit to Provisional Application No. 62/772,780, filed 11/29/2018.
Withdrawn Objections/Rejections
Claims 8, 25-26, and 29 were objected to for informalities. Applicant’s amendments to the claims have overcome the objections and the objections are withdrawn.
Claims 16-17 and 30 were rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement (New Matter). Applicant’s cancellation of claims 16-17 and amendment to claim 30 have overcome the rejection and the rejection is withdrawn.
Claims 25 and 29 were rejected under 35 U.S.C. 112(a) as failing to comply with the enablement requirement (Biological Deposits). In view of Applicant’s remarks and amendments to the claims the rejection is overcome and withdrawn.
Claims 8, 18, 20, and 24-28 were rejected under 35 U.S.C. 112(b) as being indefinite. Applicant’s amendments to the claims have overcome the rejection and the rejection is withdrawn.
Claims 1, 8, 16-18, 20, 23-24, 26-28, and 30 were rejected under 35 U.S.C. 103 as being unpatentable over Mor, Chen, and Gothandapani. Upon further consideration this rejection is withdrawn.
Claims 1, 6, 8, 16-18, 20, 23-24, 26-28, and 30 were rejected under 35 U.S.C. 103 as being unpatentable over Mor, Chen, Gothandapani, and Çakmakçı. Upon further consideration this rejection is withdrawn.
Claims 1, 6, 8, 16-18, 20, and 23-30 were rejected under 35 U.S.C. 103 as being unpatentable over Mor, Chen, Gothandapani, Çakmakçı, and Antonio. Upon further consideration this rejection is withdrawn.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 6, 23, 26-27, and 29-31 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites wherein the growth rate is measured between 24 and 96 hours after “the microorganism incubation”, however, there is no other recitation of “microorganism incubation” in the claim. As such, there is insufficient antecedent basis for this limitation in the claim.
Claims 6, 23, 26-27, and 29-31 are rejected by virtue of their dependency on claim 1.
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 1, 8, 18, 20, 23-24, 26-28, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Kloepper et al. (1981). Development of a powder formulation of rhizobacteria for inoculation of potato seed pieces. Phytopathology 71:590-592 (PTO-892), hereinafter Kloepper, in view of Chen, Z., et al. (US 2012/0220454 A1, 30 AUG 2012, on record), hereinafter Chen, as evidenced by Mudgil, D. et al. (2014). Guar gum: processing, properties and food applications-A Review. J Food Sci Technol. 51(3): p. 409-18 (on record), hereinafter Mudgil, and Talc (2026). Wikipedia (PTO-892), hereinafter Wikipedia.
Kloepper discloses a dried formulation of plant growth-promoting rhizobacteria (PGPR) that could be applied to potato seed pieces.
Regarding claim 1: Kloepper teaches a dried formulation of plant growth-promoting rhizobacteria (PGPR) that could be applied to potato seed pieces. Genetically marked bacterial suspensions were mixed with various concentrations of commercially available plant gums, xanthan gum (XG), or methylcellulose and then mixed with talc. Populations of PGPR per gram of dried talc mixtures were 1 x 103 with 10% gum guar following 1 week of storage (abstract; Table 1). Guar gum is derived from the seeds of Cyamopsis tetragonoloba, as evidenced by Mudgil (Intro para. 1). As such, the guar composition reads on a biostimulant composition comprising microorganisms (i.e., PGPR) and Cyamopsis tetragonoloba (guar) gum, hereinafter guar gum. The PGPR microorganisms read on bacteria. Natural guar gum has an average molecular weight in the range of 0.25-5.0 million (Daltons), as evidenced by Mudgil (Composition and Structure, para. 3), which falls within the instantly claimed range (i.e., 2,000-5,000,000 Da). In order to prepare the composition, 5 milliliters of gum were mixed with 5 ml of a 109 colony forming units (CFU) per milliliter suspension of 24-hr-old potato PGPR strain A1 (materials and methods, para. 1). A 10% solution of guar gum is taught (Table 1), which means the mixed solution was prepared by combining 0.5 g of guar (i.e., 5 ml x 0.10 g/ml) with 5 x 109 CFU of PGPR (i.e., 5 ml x 109 CFU/ml), resulting in a ratio of 1010 CFU of microorganisms per gram of guar gum (i.e., 5 x 109 CFU ÷ 0.5 g), which falls within the instantly claimed range (i.e., 104 to 1015 CFU/g).
Regarding claim 8: As discussed above, Kloepper teaches formulations comprising guar gum, PGPR, and talc (abstract; materials and methods, para. 1; Table 1), which read on a biostimulant composition comprising Cyamopsis tetragonoloba (guar) gum, a carrier and microorganisms as claimed. The talc of Kloepper is a clay mineral as evidenced by Wikipedia. Since the specification provides no definition of a “clay” it is believed that a clay mineral reads on the clay carrier as claimed.
Regarding claim 18: It is discussed above that the mixed solution of guar gum and bacteria is prepared by combining 0.5 g of guar (i.e., 5 ml x 0.10 g/ml) with 5 x 109 CFU of PGPR (i.e., 5 ml x 109 CFU/ml), resulting in a ratio of 1010 CFU of microorganism per gram of guar gum (i.e., 5 x 109 CFU ÷ 0.5 g), which falls within the instantly claimed range (i.e., 104 to 1015 CFU/g).
Regarding claim 20: The PGPR are bacteria in the genus Pseudomonas (materials and methods, para. 1.
Regarding claim 26: The dried formulation of Kloepper comprises talc (materials and methods, para. 1), which is a clay mineral as evidenced by Wikipedia. Since the specification provides no definition of a “clay” it is believed that a clay mineral reads on the clay carrier as claimed.
Gums yielding populations of A1 greater than those in methylcellulose were selected for further study (p. 590, left col., para. 5). Dried preparations were prepared using 1% MC (methylcellulose) and 20% XG (xanthan gum). Potato seed pieces were dusted with the dried formulations prior to planting at a rate of 0.5 kg dust per 46 kg potato seed pieces (p. 580, right col., para. 1), which reads on applying a biostimulant composition to a seed as defined in claims 1 and 8. Both MC and XG dried inoculum preparations enhanced stolon development (which relates to yield increases) in the field as well or better than aqueous inocula (effectiveness of dry powder inoculum, para. 1). A dried powder formulation of PGPR is especially important for potato since the seed pieces cannot be economically pelleted as can seeds of other plants (p. 590, right col., para. 1).
The teachings of Kloepper differ from that of the instantly claimed invention in that Kloepper does not explicitly teach applying/contacting the guar gum biostimulant composition to a plant, seed or soil, as recited in claims 1 and 8, and therefore the application rates of claims 8 and 23-24. Kloepper also fails to explicitly teach the carrier ratio of claims 8 and 26-27, and the specific molecular weight of claim 30.
Chen teaches methods and compositions relating to agricultural coatings and, in particular, to seeds or agglomeration of seeds coated with guar or guar derivatives (¶ [0002]). The polymer making up a layer of the coating (i.e., guar gum) has a weight average molecular weight of between about 5,000 daltons and 500,000 daltons. In another embodiment, the polymer has a weight average molecular weight of between about 200,000 daltons and 1,000,000 daltons. In another embodiment, the soil additive is a polymer having a weight average molecular weight of up to about 5,000,000 daltons (¶ [0034]). Typically when the layer is acting as a water retention agent, the polymer utilized is generally associated with a higher molecular weight such as greater than 1,000,000 or 2,000,000 Da (¶ [0035]). The higher molecular weight embodiments of Chen read on the instantly claimed molecular weight of claim 30 (i.e., 1,000,000 to 5,000,000 Da). The composition can further act as a carrier coating that contains fungicides and beneficial microbials that protect the seed and emerging seedling (¶ [0050]). For example, alfalfa seed coating with incorporated rhizobacteria is used to inoculate the field with beneficial microbials (¶ [0050]).
Regarding the application of the guar gum composition to a seed as defined in claims 1 and 8, although Kloepper does not select the guar gum formulations for further investigation and therefore, application to seeds, it would have been prima facie obvious to one of ordinary skill in the art to use the guar gum formulation in a method of applying it to potatoes seeds since this is the intended use of the compositions taught by Kloepper. The guar gum formulation of Klopper results in a comparable amount of CFU per gram of dried powder as the methylcellulose formulation, one week after preparation (Table 1). As such, one of ordinary skill in the art could have substituted the MC formulation used in the application method of Kloepper with the guar gum formulation to predictably yield the instantly claimed method. While guar gum provides slightly lower viability in the formulation following a week of storage, it still comprises a comparable amount of PGPR as the methylcellulose formulation which indicates that it would also be effective in inoculating potato seeds to enhance stolon development. The application of the powdered guar gum formulation to potato seeds entails no more than the use of a known technique (i.e., incorporating PGPR into a died guar gum powder) to improve similar methods (i.e., potato seed inoculation) in the same way as the powdered MC formulations.
Regarding the application rate of microorganisms as recited in claim 8, the guar gum composition comprises 103 CFU per gram of dried powder 1 week after preparation (Table 1). The application rate taught by Kloepper is 0.5 kg dust per 46 kg potato seed pieces. Therefore, if the guar gum formulation was used in said method, as discussed above, the amount of microorganism applied per 100 kg of seed would be calculated as such:
10
3
C
F
U
1
g
p
o
w
d
e
r
×
1000
g
1
k
g
×
0.5
k
g
p
o
w
d
e
r
46
k
g
s
e
e
d
=
1.09
x
10
4
C
F
U
p
e
r
k
g
s
e
e
d
=
1.09
x
10
6
C
F
U
p
e
r
100
k
g
s
e
e
d
Such an amount falls within the instantly claimed range (i.e., 104 to 1015 CFU/100 kg of seed). In any case, it would have also been prima facie obvious to one of ordinary skill in the art to optimizes the CFU amount applied in relation to the amount of seeds since the CFU amount is directly responsible for the therapeutic effect of the method. The optimization of a result effective parameter is considered within the skill of the artisan. See, In re Boesch and Slaney (CCPA) 204 USPQ 215. This is what research chemists do, optimization of result-effective variables through routine experimentation (MPEP 2144.05 IIA and B).
Regarding the concentration of guar gum and the increase in growth rate as recited in claims 1 and 8, the instant claims do not define the concentration of guar gum used to achieve the recited effect. However, as discussed above, Kloepper teaches a ratio of microorganism to guar gum which reads on the instantly claimed ratio, meaning one of ordinary skill in the art would expect the guar gum formulation of Klopper to have same effect on the microorganism’s growth rate as claimed. Additionally, The instant specification discloses that guar powder was added at 0.7 wt% in the incubation media (p. 19, lines 12-14). As such, it seems that the inoculant composition of Kloepper made by adding 10% guar gum would necessarily result in the instantly claimed increase in growth rate which is achieved with as little as 0.7% guar. The combined method above would inherently cause the growth rate of microorganisms to increase by 2-550% or at least 5% as compared to without guar gum regardless of how the growth rate is measured since the instantly claimed increase in growth rate is an inherent property (i.e., result) of the claimed method. When the method made obvious by the prior art is structurally identical to the method claimed, the method must necessarily have the characteristics claimed as an inherent property. It is noted that In re Best (195 USPQ 430) and In re Fitzgerald (205 USPQ 594) discuss the support of rejections wherein the prior art discloses subject matter, which there is reason to believe inherently includes functions that are newly cited, or is identical to a product instantly claimed. In such a situation the burden is shifted to the applicants to “prove that subject matter to be shown in the prior art does not possess the characteristic relied on” (205 USPQ 594). There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the time of invention, but only that the subject matter is in fact inherent in the prior art reference.
Regarding the ability of the guar gum to promote plant metabolism, sugar content, etc., as recited in claims 1 and 28, such properties are also inherent to the instantly claimed method which is made obvious in its entirety above. When the method made obvious by the prior art is structurally identical to the method claimed, the method must necessarily have the characteristics claimed as an inherent property. See In re Best (195 USPQ 430) and In re Fitzgerald (205 USPQ 594) above. Furthermore, the ability of guar gum to provide the instantly recited properties is inherent to the guar gum itself. "Products of identical chemical composition cannot have mutually exclusive properties." See In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). As such, the presence of guar gum in the biostimulant will inherently provide the claimed properties.
Regarding the carrier to guar ratio of claims 8 and 26-27, Kloepper teaches that after allowing the gum and bacteria mixture to set for 20 minutes, talc (approximately five times the volume of the bacteria-gum mixture) was added and mixed thoroughly (materials and methods, para. 1). While the specifically claimed ratio of carrier to guar gum is not taught, it is well within the abilities of an ordinary artisan to optimize the amount of talc in the composition depending on the desired stability and bacterial survival desired in the final product. As such, one of ordinary skill in the art would have arrived at the instantly claimed ranges through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding the application rate of the guar gum as recited in claims 23 and 24, the application rate taught by Kloepper for other carriers is 0.5 kg dust per 46 kg potato seed pieces. The guar gum formulation above is made with a 10% guar gum solution. While Kloepper does not explicitly teach the final amount of guar gum in the powder composition, the combined method above would necessarily result in some amount of guar gum being applied per 100 kg of seeds. It is well within the abilities of an ordinary artisan to optimize the amount of the composition, and therefore the amount of guar gum, applied to 100 kg of seed depending on the desired inoculation effect of the final product. As such, one of ordinary skill in the art would have arrived at the instantly claimed range of 50 to 500 g guar per 100 kg seed through no more than routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding the molecular weight of the guar gum in claim 30, natural guar gum has an average molecular weight in the range of 0.25-5.0 million (Daltons) as evidenced by Mudgil, which overlaps with that of claim 30. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05. In any case, it would have been prima facie obvious to one of ordinary skill in the art to use a high average molecular weight guar gum, such as 2 million Daltons, in the composition of Kloepper since such a molecular weight is known and routine in the art as taught by Chen. One of ordinary skill in the art would have been motivated to select a guar gum having a high molecular weight such as 2 million Da since larger molecular weight guars are good water retention agents for seed coating which may contain beneficial microbes such as rhizobacteria.
One of ordinary skill in the art would have had a reasonable expectation of success in making the above modifications since all of the relied on references teach the use of guar gum in combination with rhizobacteria in inoculant compositions for seeds. One of ordinary skill would have had a reasonable expectation of arriving at the instantly claimed method through no more than small changes and routine optimization.
Claims 1, 6, 8, 18, 20, 23-24, 26-28, and 30-31 are rejected under 35 U.S.C. 103 as being unpatentable over Kloepper and Chen as applied to claims 1, 8, 18, 20, 23-24, 26-28, and 30 above, and further in view of Amer, G. A., et al. (2000). Development of formulations of biological agents for management of root rot of lettuce and cucumber. Can. J. Microbiol. 46:809-816 (PTO-892), hereinafter Amer.
The combined teachings of Kloepper and Chen are discussed above, as are the rejections of claims 1, 23, 26, 27, and 30.
Kloepper, as discussed above, teaches preparing the formulations by combining five milliliters of gum with 5 ml of a 109 colony forming units (CFU) per milliliter suspension of 24-hr-old potato PGPR strain A1 (Materials and methods, para. 1). This step reads on adding guar gum to a liquid medium containing the at least one microorganism (i.e., suspension of PGPR), as claimed in claim 31. A 10% solution of guar gum is taught (Table 1), which means the mixed solution is prepared by combining 0.5 g of guar (i.e., 5 ml x 0.10 g/ml) and 5 x 109 CFU of PGPR (i.e., 5 ml x 109 CFU/ml), resulting in a ratio of 1010 CFU of microorganism per gram of guar gum (i.e., 5 x 109 CFU ÷ 0.5 g), which falls within the instantly claimed range of claim 31 (i.e., 104 to 1015 CFU/g). Kloepper then teaches that the mixture is allowed to set 20 minutes (Materials and methods, para. 1).
The combined teachings of Kloepper and Chen differ from that of the instantly claimed invention in that neither explicitly teach the bacteria species of claim 6 nor the incubation step of claim 31.
Amer discloses the effect of various carrier formulations of Bacillus subtilis and Pseudomonas putida on germination, growth, and yield of lettuce and cucumber crop. Survival of B. subtilis and P. putida in various carriers under refrigeration (about 0oC) and at room temperature (about 22oC) was also studied (abstract). Plant-growth-promoting rhizobacterium (PGPR) Pseudomonas putida has been shown to suppress plant diseases caused by fungal pathogens (Intro, para. 2) and is known to be a growth promoter and increase yield in potato (Discussion, final paragraph). Bacillus subtilis has the potential to increase growth, fruit yield, and fruit number (Intro., para. 1) and may be a plan growth promoting rhizobacteria (PGPR) and/or it may induce systemic resistance in plants (Discussion, para. 2). Both Bacillus subtilis and Pseudomonas putida read on the bacterial species of claim 6.
Bacterial survival was tested at about 108 colony forming units (CFU)/L in eight carriers which were combined with carboxymethylcellulose and bacterial suspension in broth. The carriers included talc powder; alginate ; kaolin; vermiculite; peat moss; wheat bran; oat bran; and bacterial broth alone. The materials were stored in sealed bottles and incubated in a refrigerator (0oC) and at room temperature (22oC) (materials and methods), which reads on incubating the biostimulant in a liquid medium as recited in claim 31.
Regarding claim 6, it would have been prima facie obvious to one of ordinary skill in the art, prior to the effective filing date of the claimed invention, to use the Pseudomonas putida or Bacillus subtilis bacteria of Amer in the combined method of Kloepper and Chen above, since both are known and routine PGPRs in the art as taught by Amer. One of ordinary skill in the art would have been motivated to select P. putida as the PGPR in the combined method since it is taught to suppress plant diseases caused by fungal pathogens and increase yield in potato, while one of ordinary skill would have been motivated to select B. subtilis due to its potential to increase growth, fruit yield, and fruit number and ability to induce systemic resistance in plants. One of ordinary skill in the art could have performed simple substitution of one know PGPR for another to predictably yield the instantly claimed invention.
Regarding the incubation step of claim 31, it would have been prima facie obvious to one of ordinary skill in the art, prior to the effective filing date of the claimed invention, to incubate the gum-bacteria mixture of the combined method in a refrigerator (0oC) or at room temperature (22oC) during the setting period taught by Kloepper since incubating carrier-bacterial broth mixtures at these temperatures is known and routine in the art as taught by Amer. Kloepper teaches allowing the gum-bacteria mixture to set for 20 minutes following their combination and prior to application of the composition to the seeds. Amer teaches that incubating bacterial broth combined with CMC and other carriers may be done at 0oC or at room temperature (22oC). Thus, one of ordinary skill in the art could have used the incubation method of Amer to set the gum-bacteria mixture of the combined method prior to application simply by applying a known technique (i.e., incubation) to a known product (bacterial suspension) ready for improvement. Regarding the recitation of “to increase the growth rate of the at least one microorganism” such a recitation is an intended result. Such a recitation imparts no structural limitations on the claim and is considered an inherent result of the incubation step.
One of ordinary skill in the art would have had a reasonable expectation of success in making the above modifications since all of the relied on references disclose the used of known PGPR’s and carriers for inoculating seeds.
Claims 1, 6, 8, 18, 20, and 23-31 are rejected under 35 U.S.C. 103 as being unpatentable over Kloepper, Chen, and Amer, as applied to claims 1, 6, 8, 18, 20, 23-24, 26-28, and 30-31 above, and further in view of Antonio Renato De Oliveira Santos (BR 102016014248 A2, PE2E translation used, 01/02/2018, on record), hereinafter Antonio.
The teachings of Kloepper, Chen, and Amer are discussed above.
The teachings of Kloepper, Chen, and Amer differ from that of the instant invention in that none explicitly teach the bacterial strains of claims 25 and 29.
Antonio discloses formulations of silage inoculant additive containing microorganisms Bacillus subtilis and Lactobacillus buchneri mixed in a lactose vehicle for dilution in water. The formulation reduces fermentative losses, aerobic deterioration after silo opening, undesirable development of microorganisms such as fungi and yeasts, losses of dry matter and nutritional value, the occurrence of alcoholic fermentation (abstract). The composition is made up of the specific genera / species / strains of the microorganisms Bacillus subtilis CCT 0089 with a minimum concentration of 1x109 CFU / g and Lactobacillus buchneri CCT 3746 with a minimum concentration of 9x109 CFU / g of product ([003]; claim 1). The formulation has the advantage of reducing the undesirable development of microorganisms such as fungi and yeasts ([059]).
It would have been prima facie obvious to one of ordinary skill in the art, prior to the effective filing date of the instantly claimed invention, to use the Bacillus subtilis CCT 0089 of Antonio as the PGPR in the combined method of Kloepper, Chen, and Amer since Bacillus subtilis is a known and routine PGPR as taught by Amer and CCT 0089 is a known and routine strain of B. subtilis as taught by Antonio. One of ordinary skill in the art would have been motivated to use the Bacillus subtilis CCT 0089 of Antonio in the combined method since it is known reduce the development of fungi and yeasts. One of ordinary skill in the art could have replaced the PGPR of Kloepper with the Bacillus subtilis CCT 0089 strain of Antonio via no more than simple substitution of one known element for another to yield predictable results.
One of ordinary skill in the art would have had a reasonable expectation of success making the above modification since all of the references disclose beneficial bacteria which may be applied in inoculants to reduce the undesirable development of harmful microorganisms on plants.
Response to Arguments
Applicant’s arguments with respect to the previous 35 USC 103 rejections have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
(1) Applicant presents arguments primarily against Mor, which is no longer a cited reference.
(2) Applicant’s argument that Chen does not suggest the use of guar to increase the growth of microbes, is not found convincing since 1) all naturally known guar gum has a molecular weight within the range of claim 1, as evidenced by Mudgil, and 2) Chen teaches the high molecular weight guar gum of claim 30 which one of ordinary skill in the art would have been motivated to use for the reasons discussed in the rejection above. Regardless of whether or not Chen teaches the specific technical effect discovered by the applicant is irrelevant if there is other reasoning to rely on. The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336.
(3) Applicant presents arguments against Gothandapani, which is no longer a cited reference.
(4) Applicant presents arguments against Cakmakci, which is no longer a cited reference. (5) Applicant argues that Antonio does not teach or suggest providing the specific strains in a biostimulant composition in amounts relative to the grams of the guar gum. Arguments against references individually are not convincing when the rejection is based on a combination of references. In the instant case, Kloepper is relied on for teaching the desired CFU amount of microorganisms per gram of guar gum. When the bacterial strain of Antonio is substituted in, as made obvious above, such an amount would have been maintained.
Conclusion
No claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUSANNAH S ARMSTRONG whose telephone number is (571)272-0112. The examiner can normally be reached Mon-Fri 9-5 (Flex).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue X Liu can be reached at (571)272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SUSANNAH S ARMSTRONG/Examiner, Art Unit 1616
/ERIN E HIRT/Primary Examiner, Art Unit 1616
