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.
Response to Amendment
Applicant amended claim 12 and deleted the elected chemical structure species.
The objection to claim 12 is withdrawn in view of the amendment.
The rejection of claims 12-15 under 35 U.S.C. 112(b) is withdrawn in view of the amendment.
Maintained Rejection
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 (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, of record in Office Correspondence mailed on 04/21/2023) and ATCC (ATCC 763 NBY medium, 2025, of record in Office Correspondence mailed on 12/12/2025)
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 second recited compound 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 1 (R=C5H11) shown in Shi’s Figure 1 is the same as the second recited chemical structure shown below.
PNG
media_image1.png
151
402
media_image1.png
Greyscale
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 1 displayed an antimicrobial activity against Gram-positive pathogens (page 199 right column paragraph 2, Figure S1, Abstract).
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. For clarity of record, Shi teaches the strain is Pseudomonas aurantiaca, and Shi’s strain 16S rRNA sequence shows 100% identity to 16S RNA sequences of several Pseudomonas chlororaphis subsp. aurantiaca, as evidenced by MK744062.1. The identity demonstrated by analysis of the 16S gene is evidence suggesting that Shi's strain is a Pseudomonas chlororaphis subsp. aurantiaca. Moreover, the fact that at least some of the metabolite's isolated from Shi's strain, i.e., compounds 1 and 2 in Shi's Figure 1, are identical to those produced by the instant strain is further circumstantial evidence that Shi's strain is also a Pseudomonas chlororaphis subsp. aurantiaca. Based on this evidence, it is understood that Shi's strain is a Pseudomonas chlororaphis subsp. aurantiaca strain.
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 1 taught by Shi for the cell-free extract of the Pseudomonas strain taught by Deng, or by adding the purified compound 1 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 1 showed antibacterial activity against Gram-positive pathogens (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 06/12/2026 have been fully considered but they are not persuasive.
Applicants argues that the combined teachings of Deng and Shi do not suggest or teach the amended claim 12 or any claims depending on claim 12.
In response to the argument, Deng teaches that Pseudomonas chlororaphis strains are promising biocontrol agents for plants because they produce antimicrobial metabolites with a broad spectrum of activities and teaches trials where extracts from the strain UFB2 was applied to tomato plants and demonstrated significant antimicrobial activity against a broad array of plant bacterial and fungal pathogen. While Deng does not identify the particular metabolites produced by UFB2, Shi teaches antimicrobial compound 1 with R=C5H11 in Figure 1 produced by a Pseudomonas aurantiaca strain identical to the second chemical structure recited in claim 12. Shi teaches that compound 1 showed antibacterial activity against a panel of Gram-positive pathogens compared to other extracted compounds. One of ordinary skill in the art would be motivated to substitute the purified compound 1 taught by Shi for the cell-free extract of the Pseudomonas strain taught by Deng, or by adding the purified compound 1 taught by Shi together with the cell-free extract of the Pseudomonas strain taught by Deng with a reasonable expectation of success in order to inhibit or eliminate the bacteria causing the plant disease.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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.
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, LOUISE W HUMPHREY can be reached at 571-272-5543. 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.
/MARY A CRUM/Examiner, Art Unit 1657
/THANE UNDERDAHL/Primary Examiner, Art Unit 1699
Prosecution Insights