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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/15/2025 has been entered.
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 12/15/2025 is acknowledged. Claims 1, 4-8, 10-11, 13, 15-17 and 19-23 are currently pending. Claims 8, 10-11 and 19-22 have been withdrawn. Accordingly, claims 1, 4-7, 13, 15-17 and 23 are currently under examination.
Withdrawn Rejections
Applicant’s arguments/amendments, filed 12/15/2025, with respect to the previous claim objections have been fully considered and are persuasive. The previous claim objections have been withdrawn due to appropriate claim amendments.
Applicant’s arguments/amendments, filed 12/15/2025, with respect to the 112(d) rejections have been fully considered and are persuasive. The 112(d) rejections have been withdrawn due to appropriate claim amendments.
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, 4-7, 13, 16-17 and 23 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) and UC IPM (Pest Management Guidelines: Turfgrass, (2016), Rhizoctania Blight).
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).
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.
With regards to the claimed limitation 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, Jenkins teaches improved plant growth as a result of the product and method taught by Jenkins. While not expressly taught by Jenkins, the claimed limitation wherein application of the bacterial fermentation product reduces plant damage caused by application of the chemical pesticide would necessarily occur because Jenkins teaches 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) and UC IPM (Pest Management Guidelines: Turfgrass, (2016), Rhizoctania Blight) as applied to claims 1, 4-7, 13, 16-17 and 23 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’s arguments regarding the Taghavi reference have been considered and are moot since the new/modified 103 rejection above does not utilize Taghavi.
With respect to applicant’s arguments of Taghavi not rendering obvious the use of the claimed fungicide, Applicant’s attention is respectfully drawn to the modified 103 rejection above wherein Cornell and UC IPM render obvious inclusion of the claimed fungicide.
In the remarks, applicant also stated that applicant reiterates the arguments previous presented regarding the focus and object of Jenkins. Applicant had previously argued Jenkins fails to teach that application of the bio-stimulant composition to plants can reduce plant damage caused by application of a chemical pesticide. It was argued that the entire focus of Jenkins is reducing the need for over use of urea, while still achieving plant growth benefits by applying the bio-stimulant composition to plants. Nothing in Jenkins suggests a purpose or function for the bio-stimulant composition other than improved plant growth. Applicant also argued of surprising and unexpected result wherein the method of claim 1 is shown to reduce plant damage caused by application of chemical pesticide.
In response, as discussed in the 103 rejection above, Jenkins teaches the claimed method of applying a bacterial fermentation product to a plant/seed, applying a pesticide to the plant/seed and all the other steps recited in the instant claims. As acknowledged by applicant, Jenkins teaches improved plant growth as a result of the product and method taught by Jenkins. While not expressly taught by Jenkins, the claimed limitation wherein application of the bacterial fermentation product reduces plant damage caused by application of the chemical pesticide would necessarily occur because Jenkins teaches 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. Further, ““[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. Therefore, applicant’s argument that nothing in Jenkins suggests a purpose or function for the bio-stimulant composition other than improved plant growth is not found persuasive. Further, examiners argument discussed supra also apply to the applicant’s arguments regarding unexpected results. Jenkins teaches the same product (bacterial fermentation product and fungicide) and method steps recited in the instant claims and applicant’s experimental data in the specification (e.g., Table 12-16) also discloses the same product and method steps. Applicant have not shown what step of the present application claims is critical or provides unexpected results and is not taught by the prior art. Therefore, applicant’s arguments are not found persuasive.
Conclusion
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/ALI S SAEED/ Examiner, Art Unit 1616