nNotice 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 .
Priority
This application is a national stage entry of PCT/US2019/065103, filed 12/6/2019. PCT/US2019/065103 claims priority to provisional application 62/776,461, filed 12/6/2018.
Claim Status
Receipt of Remarks/Amendments filed on 7/28/2026 is acknowledged. Claims 1, 4-8, 10-11, 15-17 are currently pending. Claims 8, 10-11 have been withdrawn. Accordingly, claims 1, 4-7, 15-17 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Rejection(s) not reiterated from the previous Office Action are hereby withdrawn.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)
New Matter
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 4-7, 15-17 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites “applying less than a manufacturer-recommended amount of a chemical pesticide…. less than the manufacturer-recommended amount of the chemical pesticide is applied…. without significantly reducing pesticidal activity of the chemical pesticide relative to pesticidal activity of the chemical pesticide at the manufacturer-recommended amount”. The instant specifications fail to provide support for a manufacturer-recommended amount or less than a manufacturer-recommended amount of a chemical pesticide. Applicant point to paragraphs 0036 and 00163-00170 for support for the amendments to claim 1. Paragraph 0036 states a method of reducing the (necessary or applied) amount of agrochemical, particularly chemical pesticides, applied to a crop. This does not provide support for the manufacturer-recommended amount recited in the claim because “reducing the (necessary or applied) amount of agrochemical, particularly chemical pesticides” does not mean that the necessary or applied amount of a agrochemical is a manufacturer recommended amount. The necessary or applied amount of agrochemical can be different than the manufacturer recommended amount and would depend on, e.g., the type of pest being controlled, the intensity of the pest being controlled, etc. Further, paragraphs 00163-00170 provide examples which state using “full fungicide rate (100%)” and “reduced fungicide rate (50%)”. However, full fungicide rate does not mean that this is a manufacturer recommended amount or that a reduced fungicide rate is reduced manufacturer recommended amount of the fungicide. Therefore, the instant specifications fail to provide support for a manufacturer-recommended amount or less than a manufacturer-recommended amount of a chemical pesticide.
If Applicant believes this rejection is in error, applicant must disclose where in the specification support for the entire scope of the amendment(s) and/or new claims can be found. As a result, claims 1, 4-7, 15-17 represent new matter.
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, 4-7, 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Jenkins et al. (WO 2010/110677 A1; Sept. 30, 2010) in view of Cornell (Cornell University, Cover crop fact sheet series, Department of Horticulture, 2010), UC IPM (Pest Management Guidelines: Turfgrass, (2016), Rhizoctania Blight), Paveley (Plant Pathology (2000) 49, 748-766) and Pscheidt (https://web.archive.org/web/20160920091035/https://pnwhandbooks.org/plantdisease/pesticide-articles/fungicides-disease-management-home-landscape; Sep. 20, 2016).
Jenkins throughout the reference teaches bio-stimulant composition for obtaining improved plant growth. In particular, the bio-stimulant composition of the invention comprises a fermentation broth comprising one or more species or strains of microorganisms (including Lactobacillus species) which have been grown in the fermentation broth and then killed or lysed to produce a mixture of cellular components in the fermentation broth (e.g., lysed fermentation broth) (page 3, line 21-25; page 4, lines 26-34). Jenkins also teaches the bio-stimulant produced by fermentation of lactic acid bacteria that is then killed or lysed. This reads on the bacterial fermentation product being substantially devoid of living microorganisms and wherein the bacterial fermentation product comprises whole culture lysate recited in instant claims.
The fermentation involve growing a liquid broth that includes carbohydrates and mineral sources for the microorganism (page 4, lines 16-24). The microorganisms produce a range of growth promoting compounds including cytokinins. There is also a range of amino acids, oligopeptides and cell fragments resulting from the lysis of the microorganisms (page 5, line 7-11). The composition may comprise a range of naturally produced and balanced growth promotion factors, including cytokinin (page 6, line 30-35). Jenkins teaches the composition further comprising agricultural compounds such as fungicides (page 3, line 7-19; claims). Jenkins does not require the inclusion of urea or nitrogen based fertilizer and thus reads on claim 17.
The composition is applied to plants by various means, including foliar spray, in furrow sprays, soil drenches, soil drips, and soil injections. (page 5, line 34 – page 6, line 5). Jenkins teaches the bio-stimulant composition can be used for improving pasture growth, including white clover (dicotyledon plant), and is also useful on a wide range of crops (see e.g. pages 6-7; Background of Invention). Jenkins in examples 1-3 discloses application of the composition to the desired plant and cultivating the plant. Examples 1-3 of Jenkins also disclose the composition in liquid form and Jenkins teaches the method taught improves the plant growth or plant development compared to control which did not include the bacterial fermentation product (see: claims 17-18; Examples).
Regarding the bacterial fermentation product comprising anaerobic metabolites recited in instant claims, as discussed supra, Jenkins teaches the microorganisms produce a range of growth promoting compounds, including amino acids (identified by Applicant as metabolites; see e.g., as-filed specification, paragraph [0085]), and exemplifies the presence of organic acid fermentation products (metabolites). While Jenkins does not specifically identify the organic acid fermentation products by the term ‘anaerobic metabolites’, it is noted that the products of fermentation are, by definition, produced usually in an anaerobic environment, and thus the skilled artisan would envisage the presence of anaerobic metabolites. “[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom.” See MPEP 2144.01.
The teachings of Jenkins have been set forth above.
While Jenkins teaches the composition further comprising agricultural compounds such as fungicides, Jenkins does not teach specifically the elected chlorothalonil fungicide species. However, Cornell and UC IPM cure this deficiency.
Cornell teaches that white clover plant is a host for root rot diseases such as pythium and rhizoctonia (fungal diseases). (see entire document).
UC IPM teaches use of chlorothalonil fungicide for treating rhizoctonia blight (caused by rhizoctonia solani) in plants/grass. (see entire document).
The above references do not teach applying less than a manufacturer recommended amount of the chemical pesticide. However, Paveley and Pscheidt cure this deficiency.
Paveley discloses that commercial pressures for consistent efficacy ensure that the recommended dose will always be set well above the median of target population sensitivity distribution. In setting a recommended dose for a new fungicide, manufacturers and regulatory authorities have to consider the range of diseases against which activity will be claimed. The dose required to provide reliable control of one important pathogen may therefore substantially exceed the dose required for others. Agrochemical manufacturers and the pesticide regulatory authorities have responded to variability in dose±response curves by setting a recommended dose for each new fungicide that will give a high level of control consistently across locations and seasons. It is implicit that, in the majority of cases, acceptable control could be obtained with less than the recommended dose. As a result, European cereal producers commonly apply reduced doses. (see e.g. Title, Abstract, page 751, page 763: Dose-response curves, page 764: Left Column, Entire document).
Pscheidt also discusses fungicides for disease management in home landscape and teaches that if the label (of the fungicide) says to use a certain amount of product, you cannot use more of it. Pscheidt teaches that you can use less if it is still effective at lower rates. Pscheidt teaches chlorothalonil as one of the fungicides. (see entire document).
It would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made to combine the teachings of Jenkins, Cornell and UC IPM and specifically use chlorothalonil as the fungicide in the bio-stimulant composition of Jenkins. As mentioned above, Jenkins teaches the bio-stimulant composition can be used for improving pasture growth, including white clover (dicotyledon plant) and Jenkins also teaches the composition further comprising agricultural compounds such as fungicides. Cornell teaches that white clover plant is a host for root rot diseases such as pythium and rhizoctonia (fungal diseases) and UC IPM teaches use of chlorothalonil fungicide for treating rhizoctonia blight (caused by rhizoctonia solani) in plants/grass. Therefore, one skilled in the art would have found it obvious to include specifically chlorothalonil as the fungicide because white clover plant is a host for root rot diseases such as pythium and rhizoctonia (fungal diseases) and chlorothalonil was known to treat rhizoctonia fungal disease in plants.
It would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made to combine the teachings of Jenkins, Cornell, UC IPM, Paveley and Pscheidt apply less than a manufacturer recommended amount of the chemical pesticide (e.g. chlorothalonil). One would have been motivated to do so because Paveley discloses that commercial pressures for consistent efficacy ensure that the recommended dose of fungicides will always be set well above the median of target population sensitivity distribution. In setting a recommended dose for a new fungicide, manufacturers and regulatory authorities have to consider the range of diseases against which activity will be claimed. The dose required to provide reliable control of one important pathogen may therefore substantially exceed the dose required for others. Agrochemical manufacturers and the pesticide regulatory authorities have responded to variability in dose±response curves by setting a recommended dose for each new fungicide that will give a high level of control consistently across locations and seasons. It is implicit that, in the majority of cases, acceptable control could be obtained with less than the recommended dose. As a result, European cereal producers commonly apply reduced doses. Pscheidt also discusses fungicides for disease management in home landscape and teaches that if the label (of the fungicide) says to use a certain amount of product, you cannot use more of it. Pscheidt teaches that you can use less if it is still effective at lower rates. Pscheidt teaches chlorothalonil as one of the fungicides. Therefore, one skilled in the art would have found it prima facie obvious to use less than a manufacturer recommended amount of the fungicide (i.e. chlorothalonil) because the prior art teaches that acceptable control could be obtained with less than the recommended dose and one skilled in the art would want to use lesser amount to obtain effectiveness and reduce adverse effects of the pesticide on the plants from the higher manufacturer recommended dose.
With regards to the claimed limitations wherein application of the bacterial fermentation product reduces plant damage caused by application of the chemical pesticide as compared to a seed, seedling, and/or plant to which the chemical pesticide has been applied and the bacterial fermentation product has not been applied, without significantly reducing pesticidal activity of the chemical pesticide relative to pesticidal activity of the chemical pesticide at the manufacture recommended amount, Jenkins teaches improved plant growth as a result of the product and method taught by Jenkins and Paveley teaches acceptable control could be obtained with less than the recommended dose. While not expressly taught by Jenkins and the other cited references, the claimed limitation wherein application of the bacterial fermentation product reduces plant damage caused by application of the chemical pesticide would necessarily occur because the cited prior art references in combination teach the same product and method steps recited in the instant claims. 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). See: MPEP 2145.
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.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Jenkins et al. (WO 2010/110677 A1; Sept. 30, 2010) in view of Cornell (Cornell University, Cover crop fact sheet series, Department of Horticulture, 2010), UC IPM (Pest Management Guidelines: Turfgrass, (2016), Rhizoctania Blight), Paveley (Plant Pathology (2000) 49, 748-766) and Pscheidt (https://web.archive.org/web/20160920091035/https://pnwhandbooks.org/plantdisease/pesticide-articles/fungicides-disease-management-home-landscape; Sep. 20, 2016) as applied to claims 1, 4-7, 16-17 above and further in view of Mittler (Trends in Plant Science, January 2017, Vol. 22, No. 1).
The teachings of previously cited references have been set forth above.
The reference cited above do not teach the bacterial fermentation product further comprises aerobically produced metabolites as recited in claim 15. However, Mittler cures this deficiency.
Mittler teaches reactive oxygen species (ROS) are aerobically produced metabolites and recent studies reveal that ROS are necessary for the progression of several basic biological processes including cellular proliferation and differentiation. Mittler teaches that ROS are beneficial to plants and that having ROS levels within a proper range promotes plant health. (see: Abstract; Entire document).
It would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made to combine the teachings of the previously cited references above and Mittler and further include reactive oxygen species in the bio-stimulants of Jenkins. One would have been motivated to do so because Jenkins is directed to using the bio-stimulant for improved plant growth and development and Mittler teaches that ROS, which are aerobically produced metabolites, are beneficial to plants and that having ROS levels within a proper range promotes plant health. Further, Jenkins teaches that the bio-stimulant composition can further include other agricultural compounds and therefore, one skilled in the art would have had reasonable expectation of success in including the ROS taught by Mittler for plant growth.
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 the previously cited art fails to teach the limitations of claim 1 as currently amended.
In response, applicant’s attention is respectfully drawn to the modified 103 rejections above which render obvious the limitations of claim 1 as currently amended. Further, with regards to the claimed limitations wherein application of the bacterial fermentation product reduces plant damage caused by application of the chemical pesticide as compared to a seed, seedling, and/or plant to which the chemical pesticide has been applied and the bacterial fermentation product has not been applied, without significantly reducing pesticidal activity of the chemical pesticide relative to pesticidal activity of the chemical pesticide at the manufacture recommended amount, as discussed supra, Jenkins teaches improved plant growth as a result of the product and method taught by Jenkins and Paveley teaches acceptable control could be obtained with less than the recommended dose. While not expressly taught by Jenkins and the other cited references, the claimed limitation wherein application of the bacterial fermentation product reduces plant damage caused by application of the chemical pesticide would necessarily occur because the cited prior art references in combination teach the same product and method steps recited in the instant claims. 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). See: MPEP 2145.
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.
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/ALI S SAEED/ Examiner, Art Unit 1616
