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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 3/2/2026 has been entered.
Claim Status
Receipt of Remarks/Amendments filed on 3/2/2026 is acknowledged. Claims 1, 4, 8, 11-14, 16-17, 19-20 and 22-29 are currently pending. Claims 4, 11-14 and 16-17 have been withdrawn. Accordingly, claims 1, 8, 19-20 and 22-29 are currently under examination.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
New/Maintained Claim Objection(s) / Rejection(s)
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, 19-20 and 22-29 are rejected under 35 U.S.C. 103 as being unpatentable over Castaing et al. (WO2016101862A1) in view of Aparicio Adaro et al. (WO2017089641) and Mateen et al. (African Journal of Biotechnology, 2012).
Castaing et al. is directed to the growth enhancement of plant by using cationic guars. Example 1 is directed to an aqueous solution comprising 1% of a guar hydroxypropyltrimonium chloride (table 1). Taught is spraying the composition on seeds (Example 1). The composition is claimed as further comprising a plant biostimulant (claim 17). Plant biostimulants are usually components other than fertilizers which affect plant growth and/or metabolism upon foliar application or when being added to soil. (paragraph 0048). Castaing teaches the cationic guar preferably has an average MW of between 10,000-50,000 Daltons (para 0042).
While Castaing et al. teaches the inclusion of a plant biostimulant, Castaing et al. does not expressly teach the plant biostimulant is a suppressive microorganism selected from fungi and bacteria such as the bacteria and fungi recited in the instant claims. Castaing et al. also does not disclose the composition comprising from 1x10^4 to 1x10^15 CFU of microorganism per gram of guar derivative. However, these deficiencies are cured by Aparicio Adaro et al.
Aparicio Adaro et al. (wherein a machine translation is utilized) is directed to biostimulant composition comprising microorganism strains. Plant biostimulants contain substances and/or microorganism whose function when applied to plants or the rhizosphere is to simulate natural processes to enhance/benefit nutrient uptake, nutrient efficiency, tolerance to abiotic stress (background, page 1). Claimed is a biostimulant composition of plants comprising the strain Pseudomonas putida CECT 9011 (a bacterium) (claim 3 and 7) and Trichoderma harzanium CECT 20946 (an Ascomycetes fungi) (claim 2 and 7). The composition is taught as being applied to seeds (page 7). It is taught that the concentration of the biostimulant is 10^4 to 10^9 CFU/g product (page 12, section 3).
Castaing expressly teaches the composition comprising 1% of a guar hydroxypropyltrimonium chloride (table 1), which reads on the concentrations recited in claims 1, 8 and 23-24. However, Castaing does not teach the guar derivative is present at a concentration to increase the growth rate of the microorganisms at least 5% compared to without the presence of the guar derivative. Mateen et al. addresses this deficiency.
Mateen et al. teaches guar gum is a known agar substitute in a microbiological growth medium. It is taught that guar gum supports the growth of microoganisms. Media solidified with 2.8% guar gum was supportive for the growth of microorganisms. (see e.g., Abstract; Results and Discussion).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Castaing et al. and Aparicio Adaro et al. and utilize Pseudomonas putida (a bacterium) and Trichoderma harzanium (an Ascomycetes fungi) as a plant biostimulant in combination with the cationic hydroxypropyl guar of Castaing et al. One skilled in the art would have a reasonable expectation of success in combining the Pseudomonas putida and Trichoderma harzanium with the guar as Castaing et al. teaches the composition can comprise a plant biostimulant and Aparicio Adaro et al. teaches the Pseudomonas putida and Trichoderma harzanium are a plant biostimulant whose function when applied to plants or the rhizosphere is to simulate natural processes to enhance/benefit nutrient uptake, nutrient efficiency, tolerance to abiotic stress.
Regarding the claimed concentration of microorganism, Aparicio Adaro et al. teaches 104 to 109 CFU/g product which falls within the range recited in claim 1. Regarding the concentration of the microorganism recited in dependent claims 25-26, 104 to 109 CFU/g taught by Aparicio Adaro merely overlaps 1 x 10^10 CFU/gram recited in the claims. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of "having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium" as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. "The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties."). In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%). See: MPEP 2144.05(I). Further, the amount of a specific ingredient in a composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely be optimized. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and reasonably would expect success. It would have been customary for an artisan of ordinary skill to determine the optimal amount of each ingredient to add in order to best achieve the desired results. The amount of an active ingredient is a parameter that a person of ordinary skill in the art would routinely optimize based on the size of the area being treated, the number of plants, among other factors. It would have been obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where 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, 105 USPQ 233 (CCPA 1955). NOTE: MPEP 2144.05.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Castaing et al. and Mateen and have the guar derivative present at a concentration to increase the growth rate of the microorganism at least 5% because Mateen et al. teaches guar gum is a known agar substitute in a microbiological growth medium and that guar gum supports the growth of microoganisms. Media solidified with 2.8% guar gum was supportive for the growth of microorganisms. Therefore, one of ordinary skill in the art would expect that adding the biostimulant of Aparicio Adaro et al. with the composition Castaing et al. would result in microbial growth as suggested by Mateen and it would have been obvious to one skilled in the art to determine a concentration which would yield the desired and/or optimal microbial growth. Moreover, as discussed supra, Castaing teaches the composition comprising 1% of a guar hydroxypropyltrimonium chloride which reads on the concentrations recited in the instant claims and the specification, and therefore the composition taught by the cited references would necessarily result in the increase of the growth rate of the microorganism at least 5% compared to without the presence of the guar derivative and increase activity of the suppressive microorganisms required to kill or inhibit growth of pathogenic fungi.
Regarding claim 8, the recitation kit in the preamble does not structurally distinguish the claimed product from that suggested in the prior art. Therefore, the combination of the microorganism and the cationic guar suggested by Castaing et al. and Aparicio Adaro et al. suggests the claimed kit.
Regarding claim 22 and 27, Castaing teaches the composition comprising 1% of a guar hydroxypropyltrimonium chloride which reads on the concentrations recited in the instant claims and the specification. The instant claims are directed to a product and the combination of Castaing et al., Aparicio Adaro and Mateen teach the exact same product as claimed. The limitations recited in these claims are an intended use of the claimed product and the same product taught in the cited prior art having the same concentration as instantly claimed would necessarily be capable of performing the intended use or function recited in claim 22. Note: MPEP 2145: Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979); In re Baxter Travenol Labs., 952 F.2d 388, 21 USPQ2d 1281 (Fed. Cir. 1991); see also In re Woodruff, 919 F.2d 1575, 1577-78 (Fed. Cir. 1990) (obviousness rejection affirmed where using claimed elements in the manner suggested by the prior art necessarily resulted in claim-recited effect).
From the combined teaching of the cited references, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Response to Arguments
Applicant argued Castaing’s overall teaching focuses on the use of guar derivatives to promote plant growth and that Castaing does not teach or suggest the use of guars to affect suppressive microorganism growth, nor the use of guars to promote the suppressive microorganisms activity towards pathogenic fungi such that fungal infestations are reduced or prevented. It was argued that the present claims, however, are directed to the use of guars to increase the growth rate of the suppressive microorganisms to increase the suppressive microorganisms ability to kill/inhibit growth of pathogenic fungi. One skilled in the art would not have expected to promote suppressive microorganism activity to kill/inhibit growth of pathogenic fungi by using guars.
In response, as discussed supra, Mateen et al. teaches guar gum is a known agar substitute in a microbiological growth medium and that guar gum supports the growth of microoganisms. Media solidified with 2.8% guar gum was supportive for the growth of microorganisms. Therefore, one of ordinary skill in the art would expect that adding the biostimulant of Aparicio Adaro et al. with the composition Castaing et al. would result in microbial growth as suggested by Mateen and it would have been obvious to one skilled in the art to determine a concentration which would yield the desired and/or optimal microbial growth. Moreover, as discussed supra, Castaing teaches the composition comprising 1% of a guar hydroxypropyltrimonium chloride which reads on the concentrations recited in the instant claims and the specification. The prior art also teaches the claimed amount of the microorganism and therefore the composition taught by the cited references would necessarily result in the increase of the growth rate of the microorganism and increase activity of the suppressive microorganisms required to kill or inhibit growth of pathogenic fungi. Further, the instant claims are directed to a product and the combination of Castaing et al., Aparicio Adaro and Mateen teach the exact same product as claimed. The same product taught in the cited prior art having the same concentration as instantly claimed would necessarily be capable of performing the intended use or function recited in the instant claims (e.g. increasing the suppressive microorganisms ability to kill/inhibit growth of pathogenic fungi). Note: MPEP 2145: Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979); In re Baxter Travenol Labs., 952 F.2d 388, 21 USPQ2d 1281 (Fed. Cir. 1991); see also In re Woodruff, 919 F.2d 1575, 1577-78 (Fed. Cir. 1990) (obviousness rejection affirmed where using claimed elements in the manner suggested by the prior art necessarily resulted in claim-recited effect). ““[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art' s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).” MPEP § 2112, I.
Applicant also argued that the prior art no longer overlaps the concentration of 1 x 10^10 to 1 x 10^15 CFU per gram of guar derivative. It was argued Castaing does not teach guar with MW of 2,000 to 50,000 Daltons.
In response, as discussed supra, Castaing teaches the cationic guar preferably has an average MW of between 10,000-50,000 Daltons (para 0042). Regarding the claimed concentration of microorganism, Aparicio Adaro et al. teaches 104 to 109 CFU/g product which falls within the range recited in claim 1. Regarding the concentration of the microorganism recited in dependent claims 25-26, 104 to 109 CFU/g taught by Aparicio Adaro merely overlaps 1 x 10^10 CFU/gram recited in the claims. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of "having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium" as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. "The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties."). In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%). See: MPEP 2144.05(I). Further, the amount of a specific ingredient in a composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely be optimized. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and reasonably would expect success. It would have been customary for an artisan of ordinary skill to determine the optimal amount of each ingredient to add in order to best achieve the desired results. The amount of an active ingredient is a parameter that a person of ordinary skill in the art would routinely optimize based on the size of the area being treated, the number of plants, among other factors. It would have been obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where 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, 105 USPQ 233 (CCPA 1955). NOTE: MPEP 2144.05.
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 1, 8, 19-20 and 22-29 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of US12398367B2 in view of Aparicio Adaro et al. (WO2017089641).
‘367 claims a composition which comprises a microorganism, including bacteria and fungi, and at least one cationic hydroxyalkyl guar. The cationic hydroxyalkyl guar is guar hydroxypropyltrimonium chloride. The composition comprising the cationic guar and microorganisms maintains or increases growth of the microorganism. The guar is present at a concentration to increase the growth rate of the microorganisms at least 5% compared to without the presence of the cationic guar. The cationic hydroxyalkyl guar has an average molecular weight of between 5,000 Daltons and 60,000 Daltons.
The ‘367 application does not claim the specific microorganisms recited in the instant claims and that the microorganism is present in an amount ranging from 1x10^4 to 1x10^15 CFU per gram of the cationic hydroxyalkyl guar. However, Aparicio Adaro cures this deficiency.
As discussed supra, Aparicio Adaro et al. is directed to biostimulating composition comprising microorganism strains. Plant biostimulants contain substances and/or microorganism whose function when applied to plants or the rhizosphere is to simulate natural processes to enhance/benefit nutrient uptake, nutrient efficiency, tolerance to abiotic stress (background, page 1). Claimed is a biostimulant composition of plants comprising the strain Pseudomonas putida CECT 9011 (a bacterium) (claim 3 and 7) and Trichoderma harzanium CECT 20946 (an Ascomycetes fungi) (claim 2 and 7). It is taught that the concentration of the biostimulant is 10^4 to 10^9 CFU/g product (page 12, section 3).
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 ‘367 to incorporate the teachings of Aparicio Adaro and specifically include Pseudomonas putida and Trichoderma harzanium as the microorganism in the composition of ‘367. The ‘367 already teaches the composition comprises microorganisms and Aparicio Adaro discloses Pseudomonas putida and Trichoderma harzanium microorganisms whose function when applied to plants or the rhizosphere is to simulate natural processes to enhance/benefit nutrient uptake, nutrient efficiency, tolerance to abiotic stress. Thus, one skilled in the art would have been motivated to incorporate these specific microorganisms in the composition of ‘367.
Regarding the claimed concentration of microorganism, Aparicio Adaro et al. teaches 104 to 109 CFU/g product which falls within the range recited in claim 1. Regarding the concentration of the microorganism recited in dependent claims 25-26, 104 to 109 CFU/g taught by Aparicio Adaro merely overlaps 1 x 10^10 CFU/gram recited in the claims. The amount of a specific ingredient in a composition is clearly a result effective parameter that a person of ordinary skill in the art would routinely be optimized. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and reasonably would expect success. It would have been customary for an artisan of ordinary skill to determine the optimal amount of each ingredient to add in order to best achieve the desired results. The amount of an active ingredient is a parameter that a person of ordinary skill in the art would routinely optimize based on the size of the area being treated, the number of plants, among other factors. It would have been obvious to one of ordinary skill in the art at the time of the invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where 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, 105 USPQ 233 (CCPA 1955). NOTE: MPEP 2144.05.
Regarding claim 22 and 27, the instant claims are directed to a product and the combination of ‘367 and Aparicio Adaro teach the exact same product as claimed. The limitations recited in the instant claims are an intended use of the claimed product and the exact same product disclosed in the cited prior art would necessarily be capable of performing the intended use or function recited in the claims. Moreover, as discussed supra, ‘367 discloses the composition comprising the cationic guar and microorganisms maintains or increases growth of the microorganism.
From the combined teaching of the cited references, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
This is a provisional nonstatutory double patenting rejection.
Claims 1, 8, 19-20 and 22-29 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 9-11, 13-14, 16, 20-23 of copending Application No. 17/298,283 (US20220289870A1) in view of Castaing et al. (WO2016101862A1) and Aparicio Adaro et al. (WO2017089641).
‘283 teaches a method for increasing the growth rate of bacterium and a biostimulant composition comprising at least one microorganism and at least one guar derivative, applied to plant wherein said guar derivative contain carboxymethyl group and a hydroxypropyl group. The guar derivative is present at a concentration to increase a growth rate of the microorganism at least 5% compared to without the presence of the guar derivative. The microorganism is bacterium. The microorganism and the guar derivative are combined in a ratio microorganism: guar derivative ranging from 1x104 to 1x1015 CFU/g.
‘283 does not expressly teach the elected species of a guar hydroxypropyltrimonium chloride and its MW recited in the instant claims. ‘283 does not claim the specific microorganisms recited in the instant claims. However, Castaing and Aparicio Adaro cures these deficiencies.
The teachings of Castaing and Aparicio Adaro discussed supra are incorporated herein.
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 ‘283 to incorporate the teachings of Aparicio Adaro and specifically include Pseudomonas putida and Trichoderma harzanium as the microorganism in the composition of ‘283. The ‘283 already teaches the composition comprises microorganisms and Aparicio Adaro discloses Pseudomonas putida and Trichoderma harzanium microorganisms whose function when applied to plants or the rhizosphere is to simulate natural processes to enhance/benefit nutrient uptake, nutrient efficiency, tolerance to abiotic stress. Thus, one skilled in the art would have been motivated to incorporate these specific microorganisms in the composition of ‘283.
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 ‘283 to incorporate the teachings of Castaing and include hydroxypropyltrimonium chloride having MW of 10,000-50,0000 Daltons. Similar to ‘283, Castaing is also directed to application of biostimulant and guar derivatives to plant for plant growth and Castaing teaches hydroxypropyltrimonium chloride having MW of 10,000-50,0000 Daltons as a guar derivative used for application to plants in combination with plant biostimulants for plant growth. It would have been obvious to one of ordinary skill in the art to substitute the guar derivatives known in the art to be useful for the same purpose (i.e., plant growth) as a person with ordinary skill has good reason to pursue known options within his or her technical grasp. see MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
From the combined teaching of the cited references, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
This is a provisional nonstatutory double patenting rejection.
Claims 1, 8, 19-20 and 22-29 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 6, 8, 11-13, 15-21, 23-25 of copending Application No. 17/298,272 (US20220017857A1) in view of Castaing et al. (WO2016101862A1) and Aparicio Adaro et al. (WO2017089641).
‘272 teaches a method for increasing the growth rate of microorganisms and a biostimulant composition comprising at least one microorganism and at least Cyamopsis tetragonoloba (guar) gum having MW in range of 2,000 to 5,000,000 Daltons, applied to plants. The guar gum is present at a concentration to increase a growth rate of the microorganism by 2-550% compared to without the presence of the guar gum. The microorganism is bacterium such as B. thuringinesis. The microorganism and the guar gum are combined in a ratio microorganism: guar derivative ranging from 1x104 to 1x1015 CFU/g.
‘272 does not expressly teach the elected species of a guar hydroxypropyltrimonium chloride and its MW recited in the instant claims. ‘272 does not claim the specific microorganisms recited in the instant claims 19-20. However, Castaing and Aparicio Adaro cures these deficiencies.
The teachings of Castaing and Aparicio Adaro discussed supra are incorporated herein.
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 ‘272 to incorporate the teachings of Aparicio Adaro and specifically include Pseudomonas putida and Trichoderma harzanium as the microorganism in the composition of ‘272. The ‘272 already teaches the composition comprises microorganisms and Aparicio Adaro discloses Pseudomonas putida and Trichoderma harzanium microorganisms whose function when applied to plants or the rhizosphere is to simulate natural processes to enhance/benefit nutrient uptake, nutrient efficiency, tolerance to abiotic stress. Thus, one skilled in the art would have been motivated to incorporate these specific microorganisms in the composition of ‘272.
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 ‘272 to incorporate the teachings of Castaing and include hydroxypropyltrimonium chloride having MW of 10,000-50,0000 Daltons. Similar to ‘272, Castaing is also directed to application of biostimulant and guar to plant for plant growth and Castaing teaches hydroxypropyltrimonium chloride having MW of 10,000-50,0000 Daltons is a guar derivative used for application to plants in combination with plant biostimulants for plant growth. It would have been obvious to one of ordinary skill in the art to substitute the guar types known in the art to be useful for the same purpose (i.e., plant growth) as a person with ordinary skill has good reason to pursue known options within his or her technical grasp. see MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
From the combined teaching of the cited references, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant argued the claims are patentable for the same reasons as discussed with respect to the 103 rejection.
In response, as discussed supra, applicant’s arguments regarding the reference utilized in the 103 rejection above are not persuasive and therefore, the same response to applicant’s argument is applied with respect to the double patenting rejection.
Conclusion
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/ALI S SAEED/Examiner, Art Unit 1616