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
Claims 12-15 are pending.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114 was filed in this application after a decision by the Patent Trial and Appeal Board, but before the filing of a Notice of Appeal to the Court of Appeals for the Federal Circuit or the commencement of a civil action. 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examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant’s submission filed on 09/23/2025 has been entered.
Claim Objections
Claim 12 is objected to because of the following informalities: the phrase “temperature is between” should be replaced with “temperature between”. A comma should be added after 250 RPM in line 13, and “and” should be added after “18 h” in line 14. The phrase “selected from” in line 17 should be replace with “selected from the group consisting of” since it is reciting a Markush group.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 12-15 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 12 recites in line 11 the limitation “growing Pseudomonas bacteria”. The claim is indefinite because it is not clear if the Pseudomonas bacteria claimed in step (i) is the same as the one recited in the growing step. Applicant may consider amending the claim to recite “growing the Pseudomonas bacteria” in order to obviate the rejection.
Claims 13-15, which depend from claim 12, do not cure the indefiniteness and are also rejected.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over Deng (Deng, Peng. "Genetic Characterization of Antimicrobial Activities of the Bacteria Burkholderia Contaminans MS14 and Pseudomonas chlororaphis UFB2." (2016), of record in Office Correspondence mailed on 04/21/2023) in view of Shi (Shi et al. "Isolation, identification, and decomposition of antibacterial dialkylresorcinols from a Chinese Pseudomonas aurantiaca strain." Journal of natural products 83.2 (2020): 194-201, of record in Office Correspondence mailed on 04/21/2023) and as evidenced by MK744062.1 (Blast search GenBank MK744062.1-2023, hereinafter MK744062.1) and ATCC (ATCC 763 NBY medium, 2025)
Regarding claims 12-15, Deng teaches Pseudomonas chlororaphis strains are used as biocontrol agents in agriculture due to their antimicrobial secondary metabolites (page 63 paragraph 1). Deng teaches Pseudomonas chlororaphis strain UFB2 with broad spectrum of antimicrobial activities especially against bacterial canker pathogen of tomato, Clavibacter michiganensis (page 64 paragraph 2). Deng teaches greenhouse trials were performed by spraying tomato plants with cell-free extract of the strain (page 83 para. 2). Deng teaches the cell-free extract inhibited the Gram-positive bacteria Clavibacter michiganensis subsp. michiganensis, the pathogen of tomato bacterial canker disease (page 84 paragraph 2). Deng teaches that P. chlororaphis strain UFB2 was cultured in liquid NBY medium overnight at 28oC in a shaker at 220 rpm (page 64 last para.). ATCC reports that NBY medium comprises yeast extract and glucose (whole document).
Deng does not teach the strain has a metabolite identical to the recited compounds and does not teach separating the liquid media from the bacteria after a period of time to produce a protective supernatant comprising the protective metabolite.
Shi teaches Pseudomonas aurantiaca with accession number MK744062 (page 200 left column first paragraph). Evidentiary reference MK744062.1 shows 100% identity to 16s RNA sequences of several Pseudomonas chlororaphis subsp. aurantiaca (whole document). Shi teaches that after 10 days of fermentation under optimized conditions (shaking under 200 rpm, at 30 °C, in a 2 L Erlenmeyer flask), cell and supernatant fractions of the cultures were separated by centrifugation (page 200 para. “Isolation and Purification”). Shi teaches extraction and purification of metabolites from the supernatant (Figure 1, page 200 para. “Isolation and Purification”). Compound 2 shown in Shi’s Figure 1 is the same as claimed compound shown below.
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Thus, Shi teaches a compound that is the same as the claimed compound obtained from a strain of Pseudomonas chlororaphis subsp. aurantiaca as evidenced by MK744062.1. Shi’s strain is from the same genus, species and subspecies as the strain recited in the claim and producing the claimed compound. Shi teaches compound 2 displayed an antimicrobial activity against Gram-positive bacteria (page 199 right column paragraph 2).
The claim is directed to the application of a metabolite compound produced by the recited bacterium and not the bacterium itself. The source of the compound is a product-by-process limitation. The process does not distinguish the structurally identical metabolite disclosed in Shi. There is no evidence that the source of the source (i.e. purified from Pseudomonas chlororaphis subsp. aurantiaca 1214-CHY4 bacterium with Accession No. PTA-126941) imparts any additional structure to the metabolite.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Deng’s method of treating plant disease caused by bacteria by fermenting the Pseudomonas strain for 10 days in a flask, separating the cell and supernatant fractions as suggested by Shi, and substituting the purified compound 2 taught by Shi for the cell-free extract of the Pseudomonas strain taught by Deng, or by adding the purified compound 2 taught by Shi together with the cell-free extract of the Pseudomonas strain taught by Deng with a reasonable expectation of success. One of ordinary skill in the art would be motivated to do so because compound 2 showed antibacterial activity against a panel of Gram-positive pathogens compared to other extracted compounds (Abstract). It would be beneficial to use a purified metabolite that has the strongest antibacterial activity instead of, or in combination with, unpurified cell-free extract since the compound will be more concentrated and thus more efficient at killing the bacteria causing the plant disease.
Response to Arguments
Applicant's arguments filed 09/23/2025 have been fully considered but they are not persuasive.
Applicants argue that the combined teachings of Deng and Shi do not fairly suggest or teach the amended claim 12 or any claims depending on claim 12.
In response to the argument, Deng teaches P. chlororaphis strain UFB2 was cultured in liquid NBY medium overnight at 28oC in a shaker at 220 rpm (page 64 last para.). NBY medium comprises glucose and yeast extract as evidenced by ATCC. Shi teaches fermenting the Pseudomonas strain for 10 days with shaking under 200 rpm, at 30 °C, in a flask and teaches separating cell and supernatant fractions and extraction and purification of metabolites from the supernatant (page 200 para. “Isolation and Purification”). One of ordinary skill in the art would be motivated to modify the method taught by Deng by growing the Pseudomonas strain for 10 days in a flask, separating the cell and supernatant fractions, extracting and purifying the metabolites and using the purified metabolites with antibacterial activity to treat canker pathogen of tomato.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARY A CRUM whose telephone number is (571)272-1661. The examiner can normally be reached M-F 8:00-5:00 CT with alternate Fridays off.
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/MARY A CRUM/Examiner, Art Unit 1657
/THANE UNDERDAHL/Primary Examiner, Art Unit 1699