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
Claims 2, 16, 18 and 20-21 have been cancelled.
Claim 29 has been added.
Claims 1, 3-15, 17, 19 and 22-29 are currently pending.
Claims 1, 3-15, 17, 19 and 22-29 are being examined in this application.
Priority
This application claims priority to US provisional applications 63/119,284 (filed on 11/30/2020) and 63/108,392 (filed on 11/4/2020).
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01. For example, page 51.
The specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant's cooperation is requested in correcting any errors of which applicant may become aware in the specification. MPEP 608.01.
Claim Objections
Claim 29 is objected to because of the following informalities: the claim recites “...with the microorganism…” in line 9 of the claim, which the term microorganism should be in plural form (i.e. “microorganisms”) since the composition requires two bacteria species. Appropriate correction is required.
Claim Rejections - 35 USC § 112
112(b) Rejection
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 3-9, 11-15, 17 and 25 are rejected 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.
Claims 3-9 recite the limitation “the composition” in line one of the claims. There is insufficient antecedent basis for this limitation in the claim. It is recommended to amend to “the oil treatment composition”.
Claims 3 and 4 recite “the composition comprises at least one…” which language is recommended to amend to “the soil treatment composition further comprises…” to be consistent with claim 1 language and clarify the scope of the claim.
Claim 4 recites “…one microorganism selected from… NRRL Y-68030 and …NRRL B-68031”, which the NRRL B-68031 is the required microorganism in the independent claim 1. It is not clear if the claim 4 is duplicating the same limitation as claim 1 or if the said strain is a different Bacillus strain.
Claims 5 and 7 recite “the composition comprises” which language is recommended to amend to “the soil treatment composition further comprises…” to be consistent with claim 1 language and clarify the scope of the claim.
Claim 6 recites “the composition comprises the growth by-product without the microorganism”, which renders the claim scope unclear. Claim 1 from which claim 6 depends recites the soil treating composition much have “one or more organism”, which is in conflict with claim 6 recitation of “without the microorganism.” It is not clear if the composition used in the claimed method comprises a microorganism or not. Thus, the scope of the claim is unclear and renders it indefinite.
Claims 8 and 9 recite “The method of claim 7, wherein the composition…” which language are recommended to amend to “The method of claim 7, wherein the glycolipids are selected from…” for Claim 8, and “The method of claim 7, wherein the lipopeptides are selected from…” for Claim 9 to simplify and clarify the scope of the claims.
Claim 11 recites “… one or more microorganisms and/or microbial growth by-products…” in line 10 of the claim, which the phrase “microbial growth by-products” lack clear antecedent basis. It is not clear if the “microbial” is referring to the “one or more microorganisms” or it’s referring to any other microbes. Thus, the metes and bounds of the claimed invention are not clearly defined.
Claim 17 recites the limitation “the reduced carbon-footprint grain by-product” in line 1 of the claim. There is insufficient antecedent basis for this limitation in the claim. In addition, claim 17 is dependent on the canceled claim 16, and thus renders the claim indefinite.
Claim 25 recites the limitation “the composition” in line 1-2 of the claim. There is insufficient antecedent basis for this limitation in the claim. It is recommended to amend to “the oil treatment composition”.
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.
Farmer and others
Claims 1, 3-15, 17, 19 and 22-29 are rejected under 35 U.S.C. 103(a) as being unpatentable over Farmer et al (WO2018049182; 3/15/2018), in view of Ahmad et al (Journal of Integrative Agriculture. Vol.18(9): 2080-2092; Sept., 2019), Yi (CN106551106A; 4/5/2017; Machine Translation is relied upon for the below rejection), and Ida et al (WO2014170233, 10/23/2014).
The instant claims recite a method of cultivating farmland with a composition comprising at least one microorganism, and feeding a ruminant livestock animal on the farmland.
Farmer et al., throughout the reference, teach method of improving plant health or agricultural yield through the use of various bacteria (e.g. claim 68+).
For claims 1, 11 and 29, the reference teaches treating soil with microbes (e.g. claims 68-81; p.4, lines 8+; p.5, ll. 10+), which reads on the instant claimed step of “applying to the farmland a soil treatment composition comprising… microorganism…” The reference also teaches microorganisms used can be Bacillus spp. including Bacillus subtilis (e.g. p.23, ll. 23+; p.35, ll.1+; claims 13-14, 29), and Trichoderma spp. (e.g. p.24, ll.5+; p.36, ll.16+; claim 31).
The Farmer reference also teaches applying the microbe-based product “to animals or their environment” (e.g. claim 57), which their environment would include the field where the animal feeds. The reference also teaches supporting “grazing animal” with the plants that were treated with the microorganism (e.g. p.24, ll. 30+).
For claim 3, the reference teaches Trichoderma harzianum (e.g. p.36, ll.16+).
For claim 5, the reference teaches culturing the bacteria strains with fermentation medium (e.g. p.12, ll. 25+; p.4, ll. 16+; p.15, ll.27+).
For claim 6-9, the reference teaches producing biosurfactant from the microbes including glycolipids such as sophorolipds and lipopeptides (e.g. p.23, ll. 5+).
For claim 12, the reference teaches applying the microbes to various plants including various grasses, vegetables, seeds, etc. (e.g. p. 26, p.21, ll.5+; p.20, ll. 23+).
For claims 13, 15, the reference teaches making fodder using the plants that benefitted from application of the microbes (e.g. p. 24, ll. 25+; p.25, ll. 1+) and the plants including crops such as corn, wheat etc. (e.g. p.26, ll. 3+).
For claims 19, and 22-24, the instant recitation of claims 22-24 are recitation of necessary results of the claimed method, and do not provide additional structural limitations.
For claims 25-28, the recitation of claims 25-27 is a recitation of the property of the microorganism applied. The reference teaches the same microorganism and thus would necessarily be capable of “colonize the soil…” and “causes… increase in foliar volume” etc. Further, the reference teaches the microorganism can colonize “an environment, such as soil…” (e.g. p.19, ll. 5+) which would necessarily results in increase biodiversity, and improve plant health (e.g. p.20, ll. 33+), which would include “increase numbers of plants.” The recitations of “wherein atmospheric carbon dioxide is reduced…” and “carbon sequestration is enhanced” are the necessary result of the claimed method steps, and inherent property of the microorganism applied. As evidenced by the instant specification and claims, as long as the bacteria is applied to the plants, and the animals are fed on the plants, then the atmospheric CO2 would necessarily be reduced.
The Farmer reference does not explicitly teach the livestock animal are ruminant animals of claims 1, 10-11, 14, 29 and the specific Bacillus subtilis strain (B4 NRRL B-68031) of claim 1, the strain of claim 4, the specific lipopeptide of claim 9, fodder comprising by-product of grain fermentation of claims 11 and 17.
However, Ahmad et al., throughout the reference, teach isolates of Bacillus subtilis B4 and application of the bacteria to crops fields as bioagent for treating plant diseases, and thus increased crop plant (peanuts) yield (e.g. Abstract), which the Bacillus subtilis B4 isolate read on the instant claimed Bacillus subtilis B4 with deposit number NRRL B-68031 (of claims 1 and 4) without evidence to the contrary. In fact, the instant specification discloses “A culture of the B. subtilis B4 microbe… deposited… accession number NRRL B-68031” (instant spec., p.25, lines 13+). Thus, the Bacillus subtilis B4 of Ahmad reference appears to be the same bacteria strain as the instant claimed. The reference also teaches applying the bacteria to both the seeds and soil (e.g. p.2083, left col., para 1). The Ahmad reference also teaches generating lipopeptide such as surfactin, fengycin etc from Bacillus subtilis strain for use with plant application to improve plant growth (e.g. p.2081, left-right col., bridging para; p.2089, right col., para 2), which the lipopeptide reads on the instant claim 9.
Yi, throughout the reference, teach feeding sheep (a ruminant livestock as recited in claims 1, 10-11, 14 and 29) with grains including corns and rice bran with Bacillus subtilis (e.g. Claim 1), which provides immune boosting feed for sheep.
Ida et al., throughout the publication, teach using fermented feed product from plants as feed for milk-producing animals (e.g. Abstract). The reference teaches generating fermented grain product and by-product such as (brewer’s spent grain) (e.g. pp.3-4, bridging para), and using these products as feed for cows (e.g. pp.2-3, bridging para). The reference also teaches the benefit of using such fermented feed so that milk production is increased (e.g. p.6, lines 29+).
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to apply the Bacillus subtilis B4 isolate or various lipopeptides (produced as the fermentation product from B. subtilis) to crop fields (including corn, wheats fields) of the Farmer reference so that the crops yield can be improved as taught by Ahmad et al. In addition, because both the Farmer and Ahmad references teach methods of improving plants growth by application of various bacteria strains (such as Bacillus subtilis) and/or its fermentation products (such as various lipopeptides), it would have been obvious for one of skilled in the art to substitute one Bacillus strain for another to achieved the desired effect of increasing plant production.
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide feed that are derived from plants treated with beneficial microbes such as Bacillus subtilis to livestock animals including various ruminant animals (such as sheep) as the Farmer reference teaches supporting “grazing animal” with the plants that were treated with the microorganism (including Bacillus subtilis) e.g. p.24, ll. 30+), and the Yi reference teaches inclusion of Bacillus subtilis in ruminant livestock animals (such as sheep) is beneficial to the animal. Thus, it would have been obvious to one of ordinary skill in the art to apply the standard technique of including microorganisms (such as Bacillus subtilis to ruminant animals as their feed through the grazing of plants that were exposed to the microorganism as taught by both Farmer and Yi, to improve the feed plant growth as well as the health of the animals.
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide feed that are comprised of product or by-product from grain fermentation to ruminant animals such as cows so that milk production can be increased or improved as taught by Ida et al. Thus, it would have been obvious to one of ordinary skill in the art to apply the standard technique generating fodder comprising grain fermentation products or by-products as taught by Ida and feed ruminant animal such as cows with the fodder of Farmer, to improve the animals’ health and consequently milk production.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
‘969 (or ‘062) Patent
Claims 1, 3-15, 17, 19 and 22-29 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No. 11760969 (hereinafter referred to as ‘969 patent) or its child, U.S. Patent No. 11959062 (hereinafter referred to as ‘062 patent) in view of Farmer et al (WO2018049182; 3/15/2018), Ahmad et al (Journal of Integrative Agriculture. Vol.18(9): 2080-2092; Sept., 2019), Yi (CN106551106A; 4/5/2017; Machine Translation is relied upon for the below rejection), and Ida et al (WO2014170233, 10/23/2014).
The ‘969 patent claims the followings: (Since the ‘062 patent has similar claims as the ‘969 patent, its claims are not cited for the sake of simplicity.)
1. A method for providing a microbe-based product selected from the group consisting of microbes, a broth in which the microbes were grown, a biosurfactant, and combinations thereof, wherein said method comprises growing the microbes in a microbe growth facility under specific growth conditions, harvesting said microbes, broth and/or biosurfactant to produce said microbe-based product and transporting the microbe-based product to a location for use, wherein the biosurfactant is selected from the group consisting of a sophorolipid (SLP) and a mannosylerythritol lipid (MEL),
wherein said microbes are selected from the group consisting of Pseudomonas aeruginosa, Starmerella bombicola, Pichia anomala, Wickerhamomyces anomalus, Trichoderma harzianum, Bacillus amyloliquefaciens, and Pseudozyma aphidis…
5. The method, according to claim 1, further comprising applying the microbe-based product to a site and/or environment selected from the group consisting of: soil, agricultural pests, weeds, seeds, plants, plant roots, animals, animal waste, animal feed, ore, an oil spill, a hazardous waste site, an oil well, an oil rig, piping, and tanks.
7. The method, according to claim 5, wherein the site and/or environment is selected from the group consisting of soil, agricultural pests, weeds, seed, plants, or plant roots, and wherein said applying is done via an irrigation system.
The reference patent does not claim feeding the plant that were treated with the microbes to ruminant animals as recited in claims 1, 10-11, 14, and 29, the specific Bacillus subtilis strain (B4 NRRL B-68031) of claim 1, the strain of claim 4, the specific lipopeptide of claim 9, fodder comprising by-product of grain fermentation of claims 11 and 17.
However, Farmer et al., throughout the reference, teach method of improving plant health or agricultural yield through the use of various bacteria (e.g. claim 68+). The reference also teaches supporting “grazing animal” with the plants that were treated with the microorganism (e.g. p.24, ll. 30+).
Ahmad et al., throughout the reference, teach isolates of Bacillus subtilis B4 and application of the bacteria to crops fields as bioagent for treating plant diseases, and thus increased crop plant (peanuts) yield (e.g. Abstract), which the Bacillus subtilis B4 isolate read on the instant claimed Bacillus subtilis B4 with deposit number NRRL B-68031 (of claims 1 and 4) without evidence to the contrary. In fact, the instant specification discloses “A culture of the B. subtilis B4 microbe… deposited… accession number NRRL B-68031” (instant spec., p.25, lines 13+). Thus, the Bacillus subtilis B4 of Ahmad reference appears to be the same bacteria strain as the instant claimed. The reference also teaches applying the bacteria to both the seeds and soil (e.g. p.2083, left col., para 1). The Ahmad reference also teaches generating lipopeptide such as surfactin, fengycin etc from Bacillus subtilis strain for use with plant application to improve plant growth (e.g. p.2081, left-right col., bridging para; p.2089, right col., para 2), which the lipopeptide reads on the instant claim 9.
Yi, throughout the reference, teach feeding sheep (a ruminant livestock as recited in claims 1, 10-11, 14 and 29) with grains including corns and rice bran with Bacillus subtilis (e.g. Claim 1), which provides immune boosting feed for sheep.
Ida et al., throughout the publication, teach using fermented feed product from plants as feed for milk-producing animals (e.g. Abstract). The reference teaches generating fermented grain product and by-product such as (brewer’s spent grain) (e.g. pp.3-4, bridging para), and using these products as feed for cows (e.g. pp.2-3, bridging para). The reference also teaches the benefit of using such fermented feed so that milk production is increased (e.g. p.6, lines 29+).
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to apply the Bacillus subtilis B4 isolate or various lipopeptides (produced as the fermentation product from B. subtilis) to crop fields (including corn, wheats fields) of the Farmer reference so that the crops yield can be improved as taught by Ahmad et al. In addition, because both the Farmer and Ahmad references teach methods of improving plants growth by application of various bacteria strains (such as Bacillus subtilis) and/or its fermentation products (such as various lipopeptides), it would have been obvious for one of skilled in the art to substitute one Bacillus strain for another to achieved the desired effect of increasing plant production.
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide feed that are derived from plants treated with beneficial microbes such as Bacillus subtilis to livestock animals including various ruminant animals (such as sheep) as the Farmer reference teaches supporting “grazing animal” with the plants that were treated with the microorganism (including Bacillus subtilis) e.g. p.24, ll. 30+), and the Yi reference teaches inclusion of Bacillus subtilis in ruminant livestock animals (such as sheep) is beneficial to the animal. Thus, it would have been obvious to one of ordinary skill in the art to apply the standard technique of including microorganisms (such as Bacillus subtilis to ruminant animals as their feed through the grazing of plants that were exposed to the microorganism as taught by both Farmer and Yi, to improve the feed plant growth as well as the health of the animals.
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide feed that are comprised of product or by-product from grain fermentation to ruminant animals such as cows so that milk production can be increased or improved as taught by Ida et al. Thus, it would have been obvious to one of ordinary skill in the art to apply the standard technique generating fodder comprising grain fermentation products or by-products as taught by Ida and feed ruminant animal such as cows with the fodder of Farmer, to improve the animals’ health and consequently milk production.
‘924 Patent
Claims 1, 3-15, 17, 19 and 22-29 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 11758924 (hereinafter referred to as ‘924 patent), in view of Farmer et al (WO2018049182; 3/15/2018), Ahmad et al (Journal of Integrative Agriculture. Vol.18(9): 2080-2092; Sept., 2019), Yi (CN106551106A; 4/5/2017; Machine Translation is relied upon for the below rejection), and Ida et al (WO2014170233, 10/23/2014).
The ‘924 patent claims the followings:
1. A method for killing a methanogenic microorganism in a livestock animal's digestive system, the method comprising applying a composition comprising one or more non-genetically-modified beneficial microorganisms and one or more growth by-products thereof to a field or pasture, said field or pasture comprising grasses and/or other plants upon which livestock animals graze, and placing the livestock animals in the field or pasture to graze,
wherein the livestock animals ingest the composition in addition to the grasses and/or other plants, wherein at least one of the one or more beneficial microorganisms is Bacillus amyloliquefaciens NRRL B-67928 at a concentration of about 1×106 to about 1×1013 CFU/ml of the composition, wherein the one or more growth by-products are lipopeptide biosurfactants, and wherein the killing of the methanogenic microorganism reduces enteric deleterious atmospheric gases and/or precursors thereof.
2. The method of claim 1, wherein the livestock animals are ruminants.
3. The method of claim 1, wherein the method further comprises applying an additional microorganism selected from Bacillus subtilis, Pleurotus ostreatus and Saccharomyces boulardii.
4. The method of claim 1, wherein the microbial growth by-products are in crude form, said crude form comprising a supernatant resulting from fermentation of a microorganism that produces said growth by-products.
8. The method of claim 1, wherein said method enhances plant and microbial biomass in the soil of the field or pasture, thereby producing a carbon sink in the field or pasture.
The ‘924 patent does not claim the specific Bacillus subtilis strain (B4 NRRL B-68031) of claim 1, the strain of claim 4, the specific lipopeptide of claim 9, fodder comprising by-product of grain fermentation of claims 11 and 17.
However, Farmer et al., throughout the reference, teach method of improving plant health or agricultural yield through the use of various bacteria (e.g. claim 68+). The reference also teaches supporting “grazing animal” with the plants that were treated with the microorganism (e.g. p.24, ll. 30+).
Ahmad et al., throughout the reference, teach isolates of Bacillus subtilis B4 and application of the bacteria to crops fields as bioagent for treating plant diseases, and thus increased crop plant (peanuts) yield (e.g. Abstract), which the Bacillus subtilis B4 isolate read on the instant claimed Bacillus subtilis B4 with deposit number NRRL B-68031 (of claims 1 and 4) without evidence to the contrary. In fact, the instant specification discloses “A culture of the B. subtilis B4 microbe… deposited… accession number NRRL B-68031” (instant spec., p.25, lines 13+). Thus, the Bacillus subtilis B4 of Ahmad reference appears to be the same bacteria strain as the instant claimed. The reference also teaches applying the bacteria to both the seeds and soil (e.g. p.2083, left col., para 1). The Ahmad reference also teaches generating lipopeptide such as surfactin, fengycin etc from Bacillus subtilis strain for use with plant application to improve plant growth (e.g. p.2081, left-right col., bridging para; p.2089, right col., para 2), which the lipopeptide reads on the instant claim 9.
Yi, throughout the reference, teach feeding sheep (a ruminant livestock as recited in claims 1, 10-11, 14 and 29) with grains including corns and rice bran with Bacillus subtilis (e.g. Claim 1), which provides immune boosting feed for sheep.
Ida et al., throughout the publication, teach using fermented feed product from plants as feed for milk-producing animals (e.g. Abstract). The reference teaches generating fermented grain product and by-product such as (brewer’s spent grain) (e.g. pp.3-4, bridging para), and using these products as feed for cows (e.g. pp.2-3, bridging para). The reference also teaches the benefit of using such fermented feed so that milk production is increased (e.g. p.6, lines 29+).
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to apply the Bacillus subtilis B4 isolate or various lipopeptides (produced as the fermentation product from B. subtilis) to crop fields (including corn, wheats fields) of the Farmer reference so that the crops yield can be improved as taught by Ahmad et al. In addition, because both the Farmer and Ahmad references teach methods of improving plants growth by application of various bacteria strains (such as Bacillus subtilis) and/or its fermentation products (such as various lipopeptides), it would have been obvious for one of skilled in the art to substitute one Bacillus strain for another to achieved the desired effect of increasing plant production.
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide feed that are derived from plants treated with beneficial microbes such as Bacillus subtilis to livestock animals including various ruminant animals (such as sheep) as the Farmer reference teaches supporting “grazing animal” with the plants that were treated with the microorganism (including Bacillus subtilis) e.g. p.24, ll. 30+), and the Yi reference teaches inclusion of Bacillus subtilis in ruminant livestock animals (such as sheep) is beneficial to the animal. Thus, it would have been obvious to one of ordinary skill in the art to apply the standard technique of including microorganisms (such as Bacillus subtilis to ruminant animals as their feed through the grazing of plants that were exposed to the microorganism as taught by both Farmer and Yi, to improve the feed plant growth as well as the health of the animals.
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide feed that are comprised of product or by-product from grain fermentation to ruminant animals such as cows so that milk production can be increased or improved as taught by Ida et al. Thus, it would have been obvious to one of ordinary skill in the art to apply the standard technique generating fodder comprising grain fermentation products or by-products as taught by Ida and feed ruminant animal such as cows with the fodder of Farmer, to improve the animals’ health and consequently milk production.
‘000 Patent
Claims 1, 3-15, 17, 19 and 22-29 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12529000 (hereinafter referred to as ‘000 patent), in view of Farmer et al (WO2018049182; 3/15/2018), Ahmad et al (Journal of Integrative Agriculture. Vol.18(9): 2080-2092; Sept., 2019), Yi (CN106551106A; 4/5/2017; Machine Translation is relied upon for the below rejection), and Ida et al (WO2014170233, 10/23/2014).
The ‘000 patent claims the followings:
1. A method for producing reduced carbon footprint biofuels, wherein the method comprises an agricultural aspect and a production aspect, wherein:
the agricultural aspect comprises cultivating farmland in which plants that will serve as biofuel feedstock are, or will be, grown using at least one technique that: enhances soil nutrient and moisture content and dispersion, enhances plant health and growth, reduces nitrogen-rich fertilizer usage, reduces soil greenhouse gas emissions, and/or enhances carbon sequestration in soil and/or plant matter; and
the production aspect comprises harvesting the plants as feedstock and converting the feedstock into a biofuel or biofuel component,
wherein the agricultural aspect results in reduced greenhouse gas emissions compared with traditional agricultural techniques, thereby reducing the carbon footprint of producing biofuel feedstocks and/or biofuels, and
wherein the techniques for growing the plants comprise applying a microbe-based soil treatment composition comprising one or more soil colonizing microorganisms and/or microbial growth by-products to the farmland, wherein the one or more microorganisms are selected from Trichoderma harzianum, Bacillus amyloliquefaciens, Meyerozyma MEC14XN, Meyerozyma guillermondii and Wickerhamomyces anomalus.
4. The method of claim 1, wherein the microbial growth by-product is a biosurfactant selected from glycolipids and lipopeptides.
5. The method of claim 4, wherein the glycolipid is selected from sophorolipids, mannosylerythritol lipids, rhamnolipids and trehalose lipids.
6. The method of claim 4, wherein the lipopeptide is selected from surfactin, iturin, fengycin, arthrofactin and lichenysin.
9. The method of claim 1, further comprising an animal husbandry aspect, wherein the animal husbandry aspect comprises making the plants grown according to the agricultural aspect available to a livestock animal so that the livestock animal ingests the plants.
10. The method of claim 9, wherein the livestock animals are placed on the farmland to graze the plants.
The ‘000 patent does not claim the specific Bacillus subtilis strain (B4 NRRL B-68031) of claim 1, the strain of claim 4, ruminant animals as recited in claims 1, 10-11, 14, and 29, fodder comprising by-product of grain fermentation of claims 11 and 17.
However, Farmer et al., throughout the reference, teach method of improving plant health or agricultural yield through the use of various bacteria (e.g. claim 68+). The reference also teaches supporting “grazing animal” with the plants that were treated with the microorganism (e.g. p.24, ll. 30+).
Ahmad et al., throughout the reference, teach isolates of Bacillus subtilis B4 and application of the bacteria to crops fields as bioagent for treating plant diseases, and thus increased crop plant (peanuts) yield (e.g. Abstract), which the Bacillus subtilis B4 isolate read on the instant claimed Bacillus subtilis B4 with deposit number NRRL B-68031 (of claims 1 and 4) without evidence to the contrary. In fact, the instant specification discloses “A culture of the B. subtilis B4 microbe… deposited… accession number NRRL B-68031” (instant spec., p.25, lines 13+). Thus, the Bacillus subtilis B4 of Ahmad reference appears to be the same bacteria strain as the instant claimed. The reference also teaches applying the bacteria to both the seeds and soil (e.g. p.2083, left col., para 1). The Ahmad reference also teaches generating lipopeptide such as surfactin, fengycin etc from Bacillus subtilis strain for use with plant application to improve plant growth (e.g. p.2081, left-right col., bridging para; p.2089, right col., para 2), which the lipopeptide reads on the instant claim 9.
Yi, throughout the reference, teach feeding sheep (a ruminant livestock as recited in claims 1, 10-11, 14 and 29) with grains including corns and rice bran with Bacillus subtilis (e.g. Claim 1), which provides immune boosting feed for sheep.
Ida et al., throughout the publication, teach using fermented feed product from plants as feed for milk-producing animals (e.g. Abstract). The reference teaches generating fermented grain product and by-product such as (brewer’s spent grain) (e.g. pp.3-4, bridging para), and using these products as feed for cows (e.g. pp.2-3, bridging para). The reference also teaches the benefit of using such fermented feed so that milk production is increased (e.g. p.6, lines 29+).
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to apply the Bacillus subtilis B4 isolate or various lipopeptides (produced as the fermentation product from B. subtilis) to crop fields (including corn, wheats fields) of the Farmer reference so that the crops yield can be improved as taught by Ahmad et al. In addition, because both the Farmer and Ahmad references teach methods of improving plants growth by application of various bacteria strains (such as Bacillus subtilis) and/or its fermentation products (such as various lipopeptides), it would have been obvious for one of skilled in the art to substitute one Bacillus strain for another to achieved the desired effect of increasing plant production.
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide feed that are derived from plants treated with beneficial microbes such as Bacillus subtilis to livestock animals including various ruminant animals (such as sheep) as the Farmer reference teaches supporting “grazing animal” with the plants that were treated with the microorganism (including Bacillus subtilis) e.g. p.24, ll. 30+), and the Yi reference teaches inclusion of Bacillus subtilis in ruminant livestock animals (such as sheep) is beneficial to the animal. Thus, it would have been obvious to one of ordinary skill in the art to apply the standard technique of including microorganisms (such as Bacillus subtilis to ruminant animals as their feed through the grazing of plants that were exposed to the microorganism as taught by both Farmer and Yi, to improve the feed plant growth as well as the health of the animals.
Therefore, it would have been prima facie obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide feed that are comprised of product or by-product from grain fermentation to ruminant animals such as cows so that milk production can be increased or improved as taught by Ida et al. Thus, it would have been obvious to one of ordinary skill in the art to apply the standard technique generating fodder comprising grain fermentation products or by-products as taught by Ida and feed ruminant animal such as cows with the fodder of Farmer, to improve the animals’ health and consequently milk production.
Conclusion and Correspondence
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUE LIU whose telephone number is (571)272-5539. The examiner can normally be reached M-F 9-5.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor (director), Jennifer Michener can be reached at 571-272-1424. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
Prosecution Insights