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 .
Election/Restrictions
Applicant’s election without traverse of Group II, claims 2-3, 7-17, 25 and 26 in the reply filed on 9/29/25 is acknowledged.
Applicant’s election of humic acid in the reply filed on 9/29/25 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claim 26 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 9/29/25.
Priority
Application claims priority to 62/535,109 and 62/635,984 provisional application with an effective filing date of 7/20/17 and 2/27/2018. Those applications have support for a third mixture comprising a carrier and oxygen but not for the claimed third carbohydrate or claimed third fermented time interval. Therefore, the filing date 1/27/22 is the effective priority date of instant application.
Information Disclosure Statement
The IDS filed on 4/29/22, 6/23/23, 12/20/24 have been fully considered except where references have been lined through.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 2-3, 7-17, 25 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for a bio-stimulant comprising torulaspora delbruekii, acetobacter indonesiensis, acetobacter orientalis, acetobacter melorum, and sporolactobacillus nakayamae, or comprising lactobacillus mali, paenibacillus glycanilyticus, pichia membranifaciens, pichia manshurica, candida boidinii, lachancea fermentati, or comprising arthrobacter sp., candida membranifaciens, leuconostoc mesenteroides, penicillium canescens, geotrichum candidum, or comprising torulaspora delbruekii, bacillus subtilis, leuconostoc mesenteroides, brevibacterium frigoritolerans, or comprising pichia membranifaciens, wickerhamomyces anomalus, weissella paramesenteroids, bacillus megaterium, leuconostoc mesenteroides, raouftelle omithinolytica, does not reasonably provide enablement for the broad genus of bio-stimulant. The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to practice the invention commensurate in scope with these claims.
Whether a disclosure satisfies the enablement requirement is assessed with respect to the factors set forth in In re Wands, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988); MPEP 2164.01 (a). These factors include: breadth of the claims, nature of the invention, state of the prior art, level of one of ordinary skill, level of predictability in the art, amount of direction provided by the inventor, existence of working examples and quantity of experimentation needed to make or use the invention.
All of the Wands factors have been considered with respect to the instant claims, and the most relevant factors are discussed in detail below.
Breadth of the claims/Nature of the invention
The elected species of the invention currently under examination is directed a bio-stimulant produced by a series of fermentation steps. Thus, carrying out the invention requires the knowledge of bacteria that could be beneficial to plants.
State of the prior art/Level of predictability
There is no structure-functional provided as to the mechanisms of action of the species recited in the specification. There is no indication if the species produce beneficial compounds, inhibit pathogens, or are used as a feedstock for whatever the bio-stimulant is being applied to. Therefore, the state of the prior art is extremely broad and unpredictable
Amount of direction provided/Existence of working examples
The instant specification discloses only the above list of strains. No working examples provided for in the specification. The specification does not provide any additional information, nor any structure-function relationship or other guidance that would allow one skilled in the art to determine such information.
Quantity of experimentation needed to make or use the invention
The claimed invention requires knowledge of any microorganism strain and/or byproducts produced by the strain capable of being fermented and applied as a fertilizer. Such information is not available in the prior art, as such, one of ordinary skill in the art would be required to undertake undue experimentation to carry out the claimed method.
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 2-3, 7-17, 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.
Claim 7 recites the limitation "the bio stimulant" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Further regarding claim 7, the order of steps is highly confusing as the second step listed following preparing the water immediately goes to a third mixture. This can lead to different interpretations of the claim rendering the claim unclear.
Further regarding claims 7 and 8, the claim requires preparing water followed by preparing a first mixture comprising water. It is unclear if this water for the first mixture is supposed to be the prepared water that is recited first in the claim or some other water. Additionally, the carrier can also be water and it is unclear if the carrier water is the prepared water, the water from the first mixture or some other source of water. With claim 8 requiring addition of carbon nanomaterial to the prepared water, in view of the above confusion it is impossible to tell when the carbon nanomaterial is added.
Claim Rejections - 35 USC § 102
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.
Claims 2-3, 7, 11-17, and 25 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by 028, (CN110195028A) as evidenced by Dihman (Extraction of humic acid from biological matrix – dry cow dung powder, Green Chemistry Letters and Reviews, 2:4, 217-221), Barot ( (2009) Extraction of humic acid from biological matrix – dry cow dung powder, Green Chemistry Letters and Reviews, 2:4, 217-221 (Year: 2009)), Cornell ("Nitrogen Credits from Manure" available from https://cceonondaga.org/resources/nitrogen-credits-from-manure (Year: 2005)), Beef extract (available from https://www.geneseesci.com/product/beef-extract/), and The cattle site (available from https://www.thecattlesite.com/articles/4672/how-much-manure-should-be-applied-to-land#:~:text=Increasing%20levels%20of%20various%20elements,crop%20grown%20on%20the%20land).
Regarding claims 2, 7, and 12-13 028 teaches a method for preparing a fertilizer (bio-stimulant) (p2 9th full paragraph). 028 teaches the bacteria used were isolated from cow dung (natural environment) (p3 Embodiment 1). 028 teaches that the media comprising water can have the pH adjusted (p3 2. Preparation method of beef extract peptone solid medium). 028 teaches that the strains can be activated (cultured/fermented) three times (p3 last full paragraph). 028 teaches that following the initial cultivation, the bacteria can be placed in a liquid media comprising beef extract and cultivated for 48 hours (second mixture/addition of second carbohydrate and fermented) (p4 paragraph 5). As evidenced by Beef Extract, beef extract comprises carbohydrates (p3). 028 teaches that following the second fermentation the mixture is diluted to 1% in fresh medium (carrier comprising water and 3rd carbohydrate), and further fermented (p5 paragraph 6). 028 teaches this mixture can be added to cow dung (fertilizer ingredient) (p4 Embodiment 3).
Regarding claim 11, as evidenced by Dihman, cow dung contains both micro and macronutrients (title and “4.9 Dung in Agrobiological Practices”).
Regarding claims 14 and 25, as evidenced by Barot, humic acid can be extracted from cow dung (abstract). As evidenced by Cornell, cow manure comprises urea (“Nitrogen in Manure”).
Regarding claim 15, As evidenced by The Cattle Site, cow manure comprises metal salt (p1).
Regarding claim 16, 028 teaches that the manure and bacteria can be fermented a 4th time for up to 14 days (p4 embodiment 3).
Regarding claims 3 and 17, 028 teaches that the compost piles were only ventilated with oxygen every 3 days (anaerobic conditions, facultative anaerobic bacteria) (p4 embodiment 3).
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.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over 028 (CN110195028A) as applied to claims 2-3, 7, 11-17, and 25 above and further in view of 625 (KR20040059625A).
Regarding claim 4, 028 does not explicitly teach the starting environment of soil or humus.
625 teaches the isolation and cultivation of soil microorganisms (abstract). 625 teaches that soil comprises fluids from animals and microorganisms that exist with the soil and animal fluids (p2 11th paragraph). 625 teaches their invention results in improved efficiency and synergy in the desired uses (p2 paragraphs 2-5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the isolate microorganisms from soil as taught by 625 in the method of 028. One of ordinary skill in the art would be motivated to do so because 625 teaches their microorganisms result in improved efficiency and synergy. There would be a reasonable expectation of success as both 028 and 625 are in the same field of endeavor of isolating and cultivating natural bacteria.
Claims 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over 028 (CN110195028A) as applied to claims 2-3, 7, 11-17, and 25 above, and further in view of 003 (CN102816003A) Anzar ("Carbon nanotube-A review on Synthesis, Properties and plethora of applications in the field of biomedical science." Sensors International 1 (2020): 100003)
Regarding claims 8-10, 028 does not teach the addition of a carbon nanotube.
003 teaches a nanocarbon fertilizer fermented by bacteria (claim 1). 003 teaches their fertilizer is particularly effective (p2 3rd paragraph). MPEP 2144.04 states that “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”
003 does not teach where the nanocarbon is carbon nanotubes.
Anzer teaches that carbon nanotubes are most exploited carbon nanomaterial in various applications (introduction).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a carbon nanotube in the method of 028 as taught by 003 and Anzer. One of ordinary skill in the art would be motivated to do so because 003 teaches their fertilizer is particularly effective and Anzer teaches that carbon nanotubes are the most used form of carbon nanomaterial. There would be a reasonable expectation of success as both 028 and 003 are in the same field of endeavor of fertilizer.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TREVOR L KANE whose telephone number is (571)272-0265. The examiner can normally be reached M-F 7:00 am-4:00pm.
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/TREVOR KANE/Examiner, Art Unit 1657
/ROBERT J YAMASAKI/Primary Examiner, Art Unit 1657