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 .
DETAILED ACTION
Status of Claims
Note: The amendment of February 25th, 2026 has been considered.
Claim 1 has been amended.
Claims 2-4, 6-15 and 17-32 are cancelled.
Claims 1, 5, 16 and 33-36 are pending in the current application.
Claims 33-36 are withdrawn from consideration (see discussion, below).
Claims 1, 5 and 16 are examined in the current application.
Any rejections not recited below have been withdrawn.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 25th, 2026 has been entered.
Election/Restrictions
Newly submitted claims 33-36 directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Elected and examined claims 1, 5 and 16, drawn to a silage inoculants comprising heterofermentative and homofermentative lactic acid bacteria strains, and newly added claims 33-36, drawn to methods of inoculating plant material using the silage inoculants of claims 1, 5 and 16, are related as product and process of use. The inventions can be shown to be distinct if either or both of the following can be shown: (1) the process for using the product as claimed can be practiced with another materially different product or (2) the product as claimed can be used in a materially different process of using that product. See MPEP § 806.05(h). In the instant case the silage inoculants can be used as probiotics, which is materially different process.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 33-36 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Rejections - 35 USC § 101
In view of the Amendment filed on February 25th 2026, and per pages 2-13 of the Patent Trial and Appeal Board decision of November 21st, 2025, the rejection of claims 1, 3-5, 7, 9, 10 and 16-32 under 35 USC §101 has been withdrawn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
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, 5 and 16 1, 3-5, 7, 9-10 and 16-32 are rejected under 35 U.S.C. 103 as being unpatentable over NPL Contreras-Govea et al., “Microbial inoculants for Silage” (from Focus on Forage – Vol 8: No. 4) in view of Holzer et al., “The role of Lactobacillus buchneri in forage preservation” (from TRENDS in Biotechnology Vol. 21 No. 6. Pp. 282-287). As evidenced by NPL Jones at al., “Nisin and the Market for Commercial Bacteriocins” (from Http://ageconsearch.umn.edu/bitstream/90779/2/).
Regarding claim 1: Contreras-Govea discloses fermenting silage with at least one obligatory heterofermentative lactic acid bacteria (i.e., lactobacillus buchneri) and at least one homofermentative bacterial strain (e.g., an enterococcus species) in order to provide silage with better dry matter recovery and aerobic stability (see Contreras-Govea page 1 left column to page 2 top left column). A fact that is also observed in Holzer (see Holzer page 285 right column to page 286 right column). Contreras-Govea fails to disclose selecting a homofermentative bacterial strain which does not reduce the growth of the heterofermentative lactic acid bacteria and does not produce an excess amount of lactic acid; However, Contreras-Govea discloses that the lactic acid formed by the homofermentative lactic acid bacteria quickly lowers the pH which inhibits other bacteria (see Contreras-Govea page 1, right column). Contreras-Govea also discloses that the speed and efficiency of the fermentation (i.e., pH drop rate) depends on the number and type of bacteria, and that the speed of pH drop affects the quantity of lactic acid produced by the bacteria (see Contreras-Govea page 1, left column). Holzer, discloses that aerobic deterioration is directly related to excess lactic acid and aerobic stability is directly related to acetic acid content, where homofermentative lactic acid bacteria are known to form lactic acid and heterofermentative lactic acid bacteria (e.g., lactobacillus buchneri) are known to convert lactic acid to acetic acid (see Holzer pages 284-286). Accordingly, during a speedy and efficient fermentation, the pH drops quickly without excess lactic acid. Given the fact that there are performance difference between different strains of a bacterial organism and selecting the right strain to meet desired traits is well known (see Contreras-Govea page 3, top right column; and Holzer pages 284-286), it would have been obvious to a skilled artisan to have selected a strain of homofermentative lactic acid bacteria that will not produce excess lactic acid, as recited in the claim, which will lower the pH to a point that will inhibit the obligatory heterofermentative bacteria to a degree as claimed, and thus arrive at the claimed limitations.
As to the heterofermentative lactic acid bacterial strain: Contreras-Govea discloses of fermenting silage with at least one obligatory heterofermentative lactic acid bacteria (i.e., lactobacillus buchneri) and at least one homofermentative bacterial strain in order to provide silage with better dry matter recovery and aerobic stability (see Contreras-Govea page 1 right column to page 2 top left column). A fact that is also observed in Holzer (see Holzer page 285 right column to page 286 right column).
As to the homofermentative lactic acid bacterial strain: Contreras-Govea and Holzer disclose of fermenting silage with at least one obligatory heterofermentative lactic acid bacteria (i.e., lactobacillus buchneri) and at least one homofermentative bacterial strain (e.g., an enterococcus species) in order to provide silage with better dry matter recovery and aerobic stability (see Contreras-Govea page 1 left column to page 2 top left column; and Holzer page 285 right column to page 286 right column), and silage aerobic deterioration is directly related to excess lactic acid and silage aerobic stability is directly related to acetic acid content, where homofermentative lactic acid bacteria are known to form lactic acid and heterofermentative lactic acid bacteria (e.g., lactobacillus buchneri) are known to convert lactic acid to acetic acid (see Holzer pages 284-286), but Contreras-Govea and Holzer fail to disclose of the homofermentative lactococcus lactis bacteria; However, given the fact that the synergistic relations between homofermentative and heterofermentative silage inoculants are known (see Contreras-Govea page 2, top of left column; and Holzer pages 285-286), and there are performance difference between different strains of a bacterial organism and selecting the right strain to meet desired traits is well known (see Contreras-Govea page 3, top right column; and Holzer page 285 right column to page 286 right column), and since there are finite homofermentative lactic acid bacterial species that are present in silage and are commonly known and used to ferment silage (e.g., Lactococcus lactis) (see Holzer Box 1 on page 283), it would have been obvious to a skilled artisan to have selected a strain of lactobacillus lactis in order to optimize the synergistic effect imparted by the homofermentative and heterofermentative bacterial mixture in the silage inoculant, and thus arrive at the claimed limitations.
As to the lack of production of nisin of the homofermentative strain: Contreras-Govea discloses of fermenting silage with at least one obligatory heterofermentative lactic acid bacteria (i.e., lactobacillus buchneri) and at least one homofermentative bacterial strain (e.g., an enterococcus species) in order to provide silage with better dry matter recovery and aerobic stability (see Contreras-Govea page 1 left column to page 2 top left column). Since nisin is known to be produced by Lactococcus lactis and not enterococcus species (see Jones page 2). Contreras-Govea meets the claimed limitations.
As to the claimed lactobacillus buchneri recited in claims 1 and 16: Contreras-Govea fails to disclose of the specific strain of lactobacillus buchneri recited in claims 1 and 16; However, Contreras-Govea discloses that lactobacillus buchneri convert lactic acid to acetic acid, which is a good inhibitor of yeasts and molds that cause heating ad spoilage of silages, thus lactobacillus buchneri imparts aerobic stability (see Contreras-Govea page 1, right column). Given the fact that there are performance difference between different strains of a bacterial organism and selecting the right strain to meet desired traits is well known (see Contreras-Govea page 3, top right column), it would have been obvious to a skilled artisan to have selected a strain of lactobacillus in order to optimize the aerobic stability imparted by the lactobacillus buchneri bacteria, and thus arrive at the claimed limitations. The fact that Applicant determined the naturally occurring lactobacillus buchneri strain recited in claims 1 and 16 provided the optimum advantage sought, does not render the claimed invention patentable, as selecting an organism exhibiting optimum traits is clearly taught by the prior art as routine and conventional.
Regarding claims 5 and 17: While the homofermentative and heterofermentative bacterial combinations recited in the claims 5 and 17 are not specifically disclosed in Contreras-Govea and Holzer, given the fact that there are performance difference between different strains of a bacterial organism and selecting the right strain to meet desired traits is well known (see Contreras-Govea page 3, top right column; and Holzer pages 284-286), it would have been obvious to a skilled artisan to have selected a strain of homofermentative lactic acid bacteria that will not produce excess lactic acid, as recited in claims 5 and 17, which will lower the pH to a point that will inhibit the obligatory heterofermentative bacteria (see discussion, above), and thus arrive at the claimed limitations.
Response to Arguments
Applicant's arguments filed on February 25th, 2026 have been fully considered but they are not persuasive.
Applicant argues the prior art references fail to render the claimed invention obvious, because neither Contreras-Govea, nor any other prior reference discloses the degree synergy (i.e., inhibition) between the homofermentative and obligatory heterofermentative strains observed by applicant. The examiner respectfully disagrees.
Given the fact that the synergistic relations between homofermentative and heterofermentative silage inoculants are known (see Contreras-Govea page 2, top of left column; and Holzer pages 285-286), and there are performance difference between different strains of a bacterial organism and selecting the right strain to meet desired traits is well known (see Contreras-Govea page 3, top right column; and Holzer page 285 right column to page 286 right column), and since there are finite homofermentative lactic acid bacterial species that are present in silage and are commonly known and used to ferment silage (e.g., Lactococcus lactis) (see Holzer Box 1 on page 283), it would have been obvious to a skilled artisan to have selected a strain of lactobacillus lactis in order to optimize the synergistic effect imparted by the homofermentative and heterofermentative bacterial mixture in the silage inoculant, and thus arrive at the claimed limitations. Accordingly, the synergistic results observed by Applicant, were not unexpected.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached on M-F 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ASSAF ZILBERING/Examiner, Art Unit 1792