DETAILED ACTION
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 .
Claim Status
The amendment of 09/05/2025 has been entered. Claims 2-3, 5-9, and 12-20, are pending (claim set as filed on 09/05/2025). Claims 2-3, 9, 12, 14, 17-18 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election of invention Group III, drawn to a pesticide composition, of ‘compounds that improve adherence’ as species of agriculturally acceptable compounds, and of ‘bacterial strain with antifungal and/or antibacterial activity’ as additional pesticide species, was made without traverse in the reply filed on 12/23/2024. In Applicant’s reply filed on 09/05/2025, Applicant requests rejoining of claims 2-3, 9, 12, 14, and 17-18. However, said claims are not drawn to the elected invention, as discussed in the Requirement for Restriction/Election filed on 10/24/2024, and are therefore not rejoined.
Claims 5-8, 13, 15-16, and 19-20 are currently under examination and were examined on their merits.
Declaration under 37 CFR 1.132 and Statement under 37 CFR 1.808
The Declaration under 37 CFR 1.132 and Statement under 37 CFR 1.808 filed on 09/05/2025 have been received and considered.
Withdrawn Objections/Rejections
The objections to the drawings set forth in the previous Office action are withdrawn in light of the amended drawings filed on 09/05/2025.
The rejections of claims 5-8, 13, and 15-16 under 35 U.S.C. 112(a) or 35 U.S.C.
112 (pre-AIA ), first paragraph, set forth in the previous Office action are withdrawn in light of Applicant’s statement under 37 CFR 1.808 filed on 09/05/2025.
The rejections of claims 5-8 and 15-16 on the ground of nonstatutory double
patenting set forth in the previous Office action are withdrawn in light of Applicant’s amendment filed on 09/05/2025.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 5-8, 13, 15-16, and 19-20 are newly rejected as necessitated by amendment under 35 U.S.C. 101 because the claimed invention is directed to a combination of judicial exceptions without significantly more. The statutory categories of invention under 35 U.S.C. 101 are processes, machines, manufactures, and compositions of matter. However, certain members of these categories constitute judicial exceptions, i.e., the courts have determined that these entities are not patentable subject matter. These judicial exceptions include abstract ideas, laws of nature, and natural phenomena. The Office released guidance on January 7, 2019 for the examination of claims reciting natural products under 35 U.S.C. 101 in light of the recent Supreme Court decisions in Association for Molecular Pathology v. Myriad Genetics, Inc. (569 U.S., 133 S. Ct. 2107, 2116, 106 USPQ2d 1972 (2013)) and Mayo Collaborative Services v. Prometheus Laboratories (566 U.S.,132 S. Ct. 1289, 101 USPQ2d 1961 (2012)). This guidance indicates that claims must pass an eligibility test to avoid rejection under 35 U.S.C. 101. Under this test, the product must (a) not be directed to a judicial exception or must (b) contain additional elements that amount to significantly more than the judicial exception itself.
'Directed to a judicial exception' analysis:
Prong One: Does the claim recite an abstract idea, law of nature, or natural
phenomenon?
Independent claim 5, from which claims 6-8, 15-16, and 19-20 depend, and independent claim 13 recite a natural bacterial isolate from soil, that is not genetically modified (“strain of Pseudomonas sp. deposited at the “Colección Española de Cultivos Tipo” (CECT) under the accession number CECT8708”, “The embodiment wherein the ANI is of 100% corresponds to the exact strain isolated by the inventors, which was isolated from an agricultural soil in Almeria (Spain) and was deposited, …, under the accession number CECT8708.”; page 9, lines 20-24; see claim 5), which is a natural phenomenon. Claims 5 and 13 further recite ‘oil’, and claims 19 and 20 recite ‘vegetable oil’ and ‘soy oil’, respectively, wherein all recited oils are natural phenomena. Claims 6 and 15 further recite ‘agriculturally accepted compounds’ which is defined as nutrients or compounds that improve adherence in claims 6 and 15. Nutrients read on compounds such as water, glucose, amino acids, nitrate, which are natural phenomena, and compounds that improve adherence read on bacterial extracellular polymeric substances (EPS), alginate, which are natural phenomenona. Claims 7, 8, 15 and 16 recite an ‘additional pesticide’ which is defined as a ‘bacterial strain with antifungal and/or antibacterial activity’ in claims 8 and 16, which is a natural phenomenon.
The claimed natural microorganism is found in soil (specification, page 9, lines 20-24), and since soil has oil in form of seeds, other natural bacteria, agriculturally accepted compounds such as nitrates or compounds for improved adherence, such as bacterial EPS, the compositions recited in claims 5-8, 13, 15-16, and 19-20 are natural phenomena.
The claimed microorganism, the oil such as vegetable or soy oil, the agriculturally accepted compounds or nutrients such as nitrate or compounds that improve adherence such as EPS, the additional pesticide or bacterial strain with antifungal and/or antibacterial activity, are all directed to judicial exceptions that do not interact to yield significantly more.
Prong Two: Does the claim recite additional elements that integrate the judicial exception into a practical application?
Claim 13 recites the additional element ‘kit’ which is routine and conventional (“each composition comprising at least one of the strains in the consortium. In such instances, the consortium can be a kit of parts comprising at least two different compositions”; see De Laat et al., WO 2017/178529, published on 10/19/2017, page 3, lines 10-12).
Therefore, the additional element ‘kit’ does not integrate the judicial exceptions into practical applications.
'Significantly more' analysis:
The claims do not include additional elements that are sufficient to amount to
significantly more than the judicial exceptions because the claims do not include any
additional elements other than the judicial exceptions.
Therefore, claims 5-8, 13, 15-16, and 19-20 are directed to subject matter that is not patent-eligible and are rejected under 35 U.S.C. 101.
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 15 and 20 are newly rejected as necessitated by amendment 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 15 recites “the one or more agriculturally acceptable compounds” which is indefinite for lacking antecedent basis because ‘one or more agriculturally acceptable compounds’ is not recited within the claim or in claim 5 from which claim 15 depends. One of ordinary skill in the art would not be able to determine the metes and bounds of the claim, and thus, could not clearly determine how to avoid infringement of claim 15.
In the interest of compact prosecution, claim 15 is interpreted to the broadest embodiment claimed.
Claim 20 recites “the pesticide composition according to claim 20”, which renders the claim indefinite since the proper dependency of claim 20 is unclear. One of ordinary skill in the art would not be able to determine the metes and bounds of the claim, and thus, could not clearly determine how to avoid infringement of claim 20.
In the interest of compact prosecution, claim 20 is interpreted as depending from claim 5.
Claim Rejections - 35 USC § 102/103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
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 5 and 19-20, are newly rejected as necessitated by amendment under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Peeran et al. (“Water in oil based PGPR formulation of Pseudomonas fluorescens (FP7) showed enhanced resistance against Colletotrichum musae”, published on 08/23/2014, Crop Protection 65 (2014), pages 186-193), hereinafter ‘Peeran’.
Peeran’s general disclosure relates to “six Pseudomonas fluorescens superior strains that were tested for their inhibition on mycelial growth of C. musae” (see entire document, including abstract).
Regarding claim 5, pertaining to a pesticide composition, Peeran teaches a pesticide composition (“In vitro efficacy of six Pseudomonas fluorescens superior strains were tested for their inhibition on mycelial growth of C. musae. P. fluorescens (FP7) showed significantly higher inhibition of 41.12 per cent over control”; see abstract) comprising:
a strain of Pseudomonas sp. (“P. fluorescens (FP7)”, see abstract and page 187, right column, paragraph 3), the strain being at a concentration of 3 x 108 cfu/mL (“A 3 x 108 cfu/ml concentration of FP7 strain was introduced into the formulation”; page 187, right column, paragraph 3), which falls into the instantly recited range of 105 cfu/mL to 1012 cfu/mL; and
an oil (“Ingredients of the water in oil emulsion (water-in-oil type) that was used in the present research for formulation of P. fluorescens (FP7) … The emulsion contained the following ingredients (w/w), … and a mixture of 19.00% soybean oil + 28.50% castor oil”; see abstract and page 187, right column, paragraph 3).
Regarding claim 19, pertaining to the oil, Peeran teaches wherein the oil is vegetable oil (“soybean oil”; see abstract and page 187, right column, paragraph 3).
Regarding claim 20, please note the rejection under 35 U.S.C. 112(b) above. Pertaining to the oil, Peeran teaches wherein the oil is soy oil (“soybean oil”; see abstract and page 187, right column, paragraph 3).
Peeran teaches wherein Pseudomonas fluorescens PF7 has antifungal properties (see inhibition of mycelial growth of C. musae by strain FP7 in Table 2 on page 188; see abstract).
The Examiner notes that the instantly recited assigned accession number
CECT8708 of the claimed strain under which said strain is deposited at the “Colección Española de Cultivos Tipo” (CECT) is a label and does not further characterize the instant strain. Therefore, the claimed strain is interpretated by the pesticidal property of the claimed strain. According to the specification, the instant strain has antifungal properties (see specification, page 2, lines 15-16).
Peeran does not expressly teach wherein the Pseudomonas fluorescens PF7 is Pseudomonas sp. deposited at the “Colección Española de Cultivos Tipo” (CECT) under the accession number CECT8708 (instant claim 5). However, based on Peeran's teachings, it is highly likely that Peeran's strain and Applicant's strain are the same strain since both Pseudomonas strains share antifungal properties. Still, if there should be a slight variation between Peeran’s strain and the instantly recited strain, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have used the instant strain in lieu of Peeran’s strain since both strains, Peeran's strain and the instant strain, belong to the genus Pseudomonas and have antifungal properties.
Claim Rejections - 35 USC § 103
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.
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 factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
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 5-8, 13, and 15-16 are newly rejected as necessitated by amendment under 35 U.S.C. 103 as being unpatentable over Peeran et al. (“Water in oil based PGPR formulation of Pseudomonas fluorescens (FP7) showed enhanced resistance against Colletotrichum musae”, published on 08/23/2014, Crop Protection 65 (2014), pages 186-193), hereinafter ‘Peeran’, in view of De Laat et al. (WO 2017/178529 A1, published on 10/19/2017), hereinafter ‘De Laat’.
Peeran’s teachings have been set forth above.
Peeran does not teach
wherein the pesticide composition further comprises one or more agriculturally acceptable compounds wherein the compounds are compounds that improve adherence (instant claims 6 and 15),
wherein the pesticide composition comprises at least one additional pesticide (instant claims 7 and 15), wherein the at least one additional pesticide is a bacterial strain with antifungal and/or antibacterial activity (instant claims 8 and 16),
a kit comprising an effective amount of the pesticide composition (instant claim 13).
De Laat’s general disclosure relates to “Pseudomonas strains and consortia thereof that are useful in protecting plants against microbial plant diseases” (see entire document, including abstract).
Regarding claim 15, please note the rejection under 35 U.S.C. 112(b) above.
Regarding claims 6 and 15, pertaining to the agricultural acceptable compounds, please see under Claim Status above. Pertaining to the agriculturally accepted compound, De Laat teaches a compound that improves adherence (“each composition comprising one or more of the strains of the consortium and an agriculturally acceptable carrier. The agriculturally acceptable carrier preferably is an inert material that facilitates that storage and application of the strains or the strains in the consortium … By inert carriers, we mean any material that preferably does not biologically react with the bacteria and plants. Examples of inert carrier materials include e. g. talc, silica, fir bark, perlite, vermiculite, alginate, and clay.”; page 7, lines 27-33). The Examiner notes that the instant specification lists alginate as a compound that improves adherence (see specification, page 17, line 7)
Regarding claims 7 and 15, pertaining to an additional pesticide, De Laat teaches wherein a pesticidal composition comprises an additional pesticide (“A consortium of different antagonistic strains is more effective in competing with the pathogens than an individual strain alone because the consortium can be assembled on the basis of different agonistic properties that are less likely to be found in a single bacterial strain. Such agonistic properties preferably include one or more of … 4) the ability to produce a wide spectrum of antibiotic compounds to inhibit the growth of the target pathogens,”; page 2, lines 12-22).
Regarding claims 8 and 16, please see under Claim Status above. Pertaining to the additional pesticide, De Laat teaches wherein the additional pesticide is a bacterial strain with antifungal and/or antibacterial activity (“A consortium of different antagonistic strains is more effective in competing with the pathogens than an individual strain alone because the consortium can be assembled on the basis of different agonistic properties that are less likely to be found in a single bacterial strain. Such agonistic properties preferably include one or more of 1) … 4) the ability to produce a wide spectrum of antibiotic compounds to inhibit the growth of the target pathogens,”; page 2, lines 12-22; see Table 1; Table 1 shows different Pseudomonas strains with antibacterial and/or antifungal properties).
Regarding claim 13, pertaining to a kit, De Laat teaches a kit (“the consortium can be a kit of parts”; page 3, line 11) comprising an effective amount of a pesticide composition (“The invention further relates to compositions comprising the strains or consortia of the invention, preferably lyophilized compositions, and to methods wherein they are used in protecting a wide variety of plants against a wide variety of microbial plant diseases”; “A consortium of bacterial strains is herein understood as a combination of at least two different bacterial strains that are applied and act together in the prevention and/or treatment of plant diseases caused by microbial plant pathogens. The (at least two) different bacterial strains in the consortium can be present in a single composition. However, the (at least two) different bacterial strains in the consortium can be present in on more than one different compositions, e.g. each composition comprising at least one of the strains in the consortium. In such instances, the consortium can be a kit of parts comprising at least two different compositions, each composition comprising at least one of the strains in the consortium, and whereby preferably the comprising at least two different compositions are intended to be used in combination, as may e.g. be described in a manual for use that may also be part of the kit.”; page 3, lines 5-15; see abstract). It is noted that since De Laat’s compositions are used in protecting a wide variety of plants against a wide variety of microbial plant diseases (see above), the disclosed compositions intrinsically comprise an effective amount.
While Peeran does not teach wherein the pesticide composition comprising Pseudomonas and oil further comprises a compound that improves adherence (instant claims 6 and 15), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have combined Peeran’s pesticide composition with De Laat’s teachings on alginate, to have created an oil comprising pesticide composition that further comprises alginate as a compound that improves adherence. One would have been motivated to do so to create a superior pesticide composition that allows for improved application of the bacterial strain (see De Laat, page 7, lines 27-33).
While Peeran does not teach wherein the pesticide composition according to claim 5 comprises at least one additional pesticide (instant claims 7 and 15), wherein the at least one additional pesticide is a bacterial strain with antifungal and/or antibacterial activity (instant claims 8 and 16), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have combined Peeran’s pesticide composition with De Laat’s teachings on an additional pesticide to have created a pesticide composition that comprises an additional pesticide wherein the additional pesticide is a bacterial strain with antifungal and/or antibacterial activity. One would have been motivated to do so to create a superior pesticide composition with improved and/or broadened pesticidal activity (see De Laat, page 2, lines 12-22, and Table 1).
While Peeran does not teach a kit comprising an effective amount of the pesticide composition (instant claim 13), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined Peeran’s pesticide composition with De Laat’s teaching on a kit, in order to create a kit comprising an effective amount of Peeran’s pesticide composition. One would have been motivated to do so to have an effective amount of pesticidal composition available for application when needed.
A skilled artisan would have reasonably expected success in combining Peeran’s with De Laat’s teachings since both references are directed to Pseudomonas based pesticide compositions.
Claims 5-8, 13, 15-16, and 19-20 are newly rejected as necessitated by amendment under 35 U.S.C. 103 as being unpatentable over De Laat et al. (WO 2017/178529 A1, published on 10/19/2017), hereinafter ‘De Laat’, in view of Peeran et al. (“Water in oil based PGPR formulation of Pseudomonas fluorescens (FP7) showed enhanced resistance against Colletotrichum musae”, published on 08/23/2014, Crop Protection 65 (2014), pages 186-193), hereinafter ‘Peeran’.
De Laat’s general disclosure relates to “Pseudomonas strains and consortia thereof that are useful in protecting plants against microbial plant diseases” (see entire document, including abstract).
Regarding claim 5, pertaining to the pesticide composition, De Laat teaches a pesticide composition ("The invention further relates to compositions comprising the strains or consortia of the invention, preferably lyophilized compositions, and to methods wherein they are used in protecting comprising a wide variety of plants against a wide variety of microbial plant diseases"; see abstract and claim 2) comprising: (a) a strain of Pseudomonas sp. ("Production of Pseudomonads in economic amounts"; page 20, lines 3-17; see Pseudomonas strains in Table 1). De Laat further teaches a Pseudomonas concentration of 5x1010 – 3x1012 CFU/mL (“5*1010 - 3*1012 CFU/ml”; page 20, lines 3-7).
De Laat teaches wherein a pesticidal Pseudomonas sp. strain has antifungal and antibacterial properties ("Table 1 present an over view of these strains and their various relevant properties", "P. brassicacearum ... Curtobacterium inhibition++ ... Fusarium inhibition ++ .. "; "Pseudomonas strain that inhibits growth of a microbial plant pathogen, inhibits the growth of at least one microbial plant pathogen selected from the group consisting of Ralstonia, Clavibacter, Xanthomonas, Erwinia, Curtobacterium, Fusarium, Rhizoctonia, Botrytis, Pythium, Verticillium, Phytophthora and Helminthosporium."; page 16, line 16; see Table 1 and claim 2). The Examiner notes that the instantly recited assigned accession number CECT8708 of the claimed strain under which said strain is deposited at the “Colección Española de Cultivos Tipo” (CECT) is a label and does not further characterize the instant strain. Therefore, the claimed strain is interpretated by the pesticidal property of the claimed strain. According to the instant specification, the instant strain has antifungal and antibacterial properties (see specification, page 2, lines 15-16). Based on De Laat's teachings, it is highly likely that De Laat's strain and Applicant's strain are the same strain since both Pseudomonas strains share antifungal and antibacterial properties.
Regarding claim 15, please note the rejection under 35 U.S.C. 112(b) above.
Regarding claims 6 and 15, pertaining to the agriculturally acceptable compounds, please see under Claim Status above. Pertaining to the agriculturally accepted compound, De Laat teaches a compound that improves adherence (“each composition comprising one or more of the strains of the consortium and an agriculturally acceptable carrier. The agriculturally acceptable carrier preferably is an inert material that facilitates that storage and application of the strains or the strains in the consortium … By inert carriers, we mean any material that preferably does not biologically react with the bacteria and plants. Examples of inert carrier materials include e. g. talc, silica, fir bark, perlite, vermiculite, alginate, and clay.”; page 7, lines 27-33). The Examiner notes that the instant specification lists alginate as a compound that improves adherence (see specification, page 17, line 7)
Regarding claims 7 and 15, pertaining to an additional pesticide, De Laat teaches wherein a pesticidal composition comprises an additional pesticide (“A consortium of different antagonistic strains is more effective in competing with the pathogens than an individual strain alone because the consortium can be assembled on the basis of different agonistic properties that are less likely to be found in a single bacterial strain. Such agonistic properties preferably include one or more of … 4) the ability to produce a wide spectrum of antibiotic compounds to inhibit the growth of the target pathogens,”; page 2, lines 12-22).
Regarding claims 8 and 16, please see under Claim Status above. Pertaining to the additional pesticide, De Laat teaches wherein the additional pesticide is a bacterial strain with antifungal and/or antibacterial activity (“A consortium of different antagonistic strains is more effective in competing with the pathogens than an individual strain alone because the consortium can be assembled on the basis of different agonistic properties that are less likely to be found in a single bacterial strain. Such agonistic properties preferably include one or more of 1) … 4) the ability to produce a wide spectrum of antibiotic compounds to inhibit the growth of the target pathogens,”; page 2, lines 12-22; see Table 1; Table 1 shows different Pseudomonas strains with antibacterial and/or antifungal properties).
Regarding claim 13, pertaining to a kit, De Laat teaches a kit (“the consortium can be a kit of parts”; page 3, line 11) comprising an effective amount of a pesticide composition (“The invention further relates to compositions comprising the strains or consortia of the invention, preferably lyophilized compositions, and to methods wherein they are used in protecting a wide variety of plants against a wide variety of microbial plant diseases”; “A consortium of bacterial strains is herein understood as a combination of at least two different bacterial strains that are applied and act together in the prevention and/or treatment of plant diseases caused by microbial plant pathogens. The (at least two) different bacterial strains in the consortium can be present in a single composition. However, the (at least two) different bacterial strains in the consortium can be present in on more than one different compositions, e.g. each composition comprising at least one of the strains in the consortium. In such instances, the consortium can be a kit of parts comprising at least two different compositions, each composition comprising at least one of the strains in the consortium, and whereby preferably the comprising at least two different compositions are intended to be used in combination, as may e.g. be described in a manual for use that may also be part of the kit.”; page 3, lines 5-15; see abstract). It is noted that since De Laat’s compositions are used in protecting a wide variety of plants against a wide variety of microbial plant diseases (see above), the disclosed compositions intrinsically comprise an effective amount.
De Laat does not teach an oil (instant claim 5), wherein the oil is vegetable oil (instant claim 19), or wherein the oil is soy oil (instant claim 20).
Peeran’s general disclosure relates to “six Pseudomonas fluorescens superior strains that were tested for their inhibition on mycelial growth of C. musae” (see entire document, including abstract).
Regarding claim 5, pertaining to a pesticide composition, Peeran teaches a pesticide composition (“In vitro efficacy of six Pseudomonas fluorescens superior strains were tested for their inhibition on mycelial growth of C. musae. P. fluorescens (FP7) showed significantly higher inhibition of 41.12 per cent over control”; see abstract) comprising:
a strain of Pseudomonas sp. (“P. fluorescens (FP7)”, see abstract and page 187, right column, paragraph 3), the strain being at a concentration of 3 x 108 cfu/mL (“A 3 x 108 cfu/ml concentration of FP7 strain was introduced into the formulation”; page 187, right column, paragraph 3), which falls into the instantly recited range of 105 cfu/mL to 1012 cfu/mL; and
an oil (“Ingredients of the water in oil emulsion (water-in-oil type) that was used in the present research for formulation of P. fluorescens (FP7) … The emulsion contained the following ingredients (w/w), … and a mixture of 19.00% soybean oil + 28.50% castor oil”; see abstract and page 187, right column, paragraph 3).
Regarding claim 19, pertaining to the oil, Peeran teaches wherein the oil is vegetable oil (“soybean oil”; see abstract and page 187, right column, paragraph 3).
Regarding claim 20, please note the rejection under 35 U.S.C. 112(b) above. Pertaining to the oil, Peeran teaches wherein the oil is soy oil (“soybean oil”; see abstract and page 187, right column, paragraph 3).
Additionally, Peeran teaches that “[f]ormulations have a profound effect on biocontrol agents and products, including shelf life, ability to grow and survive after application, effectiveness in disease control, ease of operation and application cost” (page 186, right column, paragraph 3).
While De Laat does not teach the pesticide composition comprising a Pseudomonas sp. concentration from 105 cfu/mL to 1012 cfu/mL, and an oil (instant claim 5), wherein the oil is vegetable oil (instant claim 19), or wherein the oil is soy oil (instant claim 20), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined De Laat’s pesticide composition with Peeran’s teachings on the Pseudomonas concentration and on oil in a pesticide composition, to have created a pesticide composition comprising a Pseudomonas sp. concentration of 3 x 108 cfu/mL and soybean oil, which is a vegetable oil. One would have been motivated to do so in order to create a superior pesticide composition that has improved shelf life, ability of the Pseudomonas strain to grow and survive after application, effectiveness in disease control, ease of operation and/or application cost (see Peeran, page 186, right column, paragraph 3).
A skilled artisan would have reasonably expected success in combining De Laat’s teachings with Peeran’s teachings since both references are directed to Pseudomonas based pesticide compositions.
As discussed above, based on De Laat's teachings, it is highly likely that De Laat's strain and Applicant's strain are the same strain since both Pseudomonas strains share antifungal and antibacterial properties (see De Laat, page 16, line 16, and Table 1 and claim 2; see instant specification, page 2, lines 15-16). However, De Laat does not expressly teach wherein the Pseudomonas strain of the pesticidal composition is Pseudomonas sp. deposited at the " Colección Española de Cultivos Tipo" (CECT) under the accession number CECT8708 (instant claim 5). If there should be a slight variation between De Laat’s strain and the instantly recited strain, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have used the instant strain in lieu of De Laat’s strain, since both strains, De Laat's strain and the instant strain, belong to the genus Pseudomonas and have antifungal and antibacterial properties.
Response to Arguments
Applicant has traversed the previous rejections of claims 5-8, 13, and 15-16 under 35 U.S.C. 101, 35 U.S.C. 112(a), and 35 U.S.C. 102/103, and further traversed the previous double patenting rejection of claims 5-8 and 15-16 (remarks, pages 9-12). As discussed above, the previous rejections under 112(a) and the double patenting rejections have been withdrawn in light of Applicant’s amendment. Applicant’s arguments regarding the rejection under 35 U.S.C. 101 and Applicant’s Declaration under 37 CFR 1.132 have been fully considered but they are not persuasive. Regarding the prior art rejections, De Laat’s teachings are not relied upon for teaching oil recited in amended base claim 5 and in new claims 19-20. As such, Applicant’s arguments regarding the rejection of claim 5 over De Laat’s teachings are moot.
In Applicant’s reply, Applicant states that “the CECT8708 strain and an oil is not a natural product”, and that “as set forth in the Declaration, the combination of the CECT8708 strain and an oil significantly enhances the longevity of the CECT8708 strain” (see remarks, page 9).
The Examiner responds that, as discussed above, both, strain CECT8708 and and oil are natural products that do not interact to yield significantly more.
The Examiner notes that the significance of the impact of soybean oil on the longevity of strain B2021 bacterium (CECT8708) as presented in the Declaration is unclear since no statistical evaluation of the presented data in the Declaration is provided (see Tables and charts on pages 4-7), and therefore, proper interpretation of the presented results is not possible (see MPEP 716.02(b)). Additionally, it is noted that the presented experimental results in the Declaration only relate to soybean oil (Declaration, page 2, lines 1-7). Therefore, the Declaration is not applicable to base claim 5 or to claim 19 which have a broader scope, since the recited composition in claim 5 comprises any oil and in claim 19 comprises any vegetable oil. However, oils other than soybean oil could have different or no effects on the bacterial strain.
Conclusion
No claims are allowed.
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.
Correspondence Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANDRA ZINGARELLI whose telephone number is (703)756-1799. The examiner can normally be reached M-F 9-5.
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/SANDRA ZINGARELLI/ Examiner, Art Unit 1653
/SHARMILA G LANDAU/ Supervisory Patent Examiner, Art Unit 1653