DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 29 October 2025 has been entered.
Claims 1, 2, 4, 7, 8, and 12 have been amended. Claim 3 has been cancelled. Claims 1 and 12-15 remain withdrawn. Claims 2, 4, and 6-11 are currently pending and under examination.
This Application is the U.S. national phase of International Application No. PCT/EP2020/065773, filed June 8, 2020, which claims the benefit of European Patent Application No. 19181291.6, filed June 19, 2019.
Withdrawal of Rejections:
The rejection of claims 2-4 and 6-11 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite, is withdrawn.
New Rejections:
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 7 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 7 recites that the glycol is “selected from 1,2-propylene glycol, ethylene glycol, diethylene glycol, 1,2-butylene glycol, polyethylene glycol having an average molecular mass Mn of 180 to 250 g/mol, and glycerol.” However, independent claim 1, from which claim 7 depends, now recites that the glycol is “selected from the group consisting of ethylene glycol, 1,2-propylene glycol, 1,3 propylene glycol, 1,2-butylene glycol, diethylene glycol, triethylene glycol, polyethylene glycol having an average molecular mass Mn of 150 to 600 g/mol, and glycerol.” As such, claim 7 fails to further limit claim 1 with respect to the limitations that the glycol is selected from the group consisting of ethylene glycol, 1,2-propylene glycol, 1,3 propylene glycol, 1,2-butylene glycol, diethylene glycol, triethylene glycol, and glycerol.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Maintained/Modified Rejections:
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.
Claims 2, 4, and 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. (IDS; US 2011/0033436, Published 2011).
With regard to claims 2 and 7, Chen et al. teach a liquid dispersion formulation comprising bacterial spores (Abs.; Para. 14-16), an aqueous continuous phase comprising at least one glycol (Abs.; Para. 20), at least one surfactant including sorbitan ethoxylates and sorbitol oleate ethoxylates (Abs.; Para. 45-48), which are an ethoxylate of a sugar alcohol, and optionally further auxiliaries (Para. 23), where the bacterial spores are dispersed in the continuous phase (Abs.). The formulation comprises glycol in amounts including about 5% to about 90% w/w, where water may be used to bring the total formulation weight to 100% (Abs.; Para. 20, 63). It would have been obvious to one of ordinary skill the art to utilize glycol within the expressly taught range, which fully encompasses at least 40 wt%, where water makes up the balance and thus may be present at 15% to 40%. Thus, the formulation can comprise glycol in a weight amount that exceeds the weight amount of water in the formulation, wherein the glycol is 1,2-propylene glycol, ethylene glycol, diethylene glycol, glycerol, and polyethylene glycols (Para. 20, 61).
With regard to claim 4, Chen et al. teach that the formulation comprises at least one nonionic surfactant, where more than one surfactant may be included in the formulation (Abs.; Para. 23, 50), which provides for at least one additional surface active compound S.
With regard to claim 6, Chen et al. teach that the formulation including the bacterial spores are milled to a particle size of 14.4 microns (Para. 96), which is fully encompassed within bacterial spores having an average particle size of 1 to 25 microns.
With regard to claims 8 and 9, Chen et al. teach that the bacterium includes at least one of Bacillus firmus, Bacillus subtilis, Bacillus pumilus, and Bacillus amyloliquefaciens (Para. 30, 35).
With regard to claim 10, Chen et al. teach that the formulation further comprises xanthan gum (Para. 75).
With regard to claim 11, Chen et al. teach that the formulation further comprises aluminum or magnesium silicates, attapulgite, bentonite, or silica (Para. 87).
Response to Arguments
Applicant urges that Chen et al. do not disclose formulations having an excess of glycol over water. Despite the broad teaching of about 2% to about 90% w/w solvent, Chen et al. leads a skilled person to a formulation having more water than solvent as seen in the noted examples, where there is no reason or incentive to switch the disclosed ratio. Further, Chen et al. teach numerous surfactants, where surfactants are optional, and there is no guidance for an ordinary artisan to select sorbitan ethoxylates as the optional surfactant in the formulation. Additionally, there is no reason to modify Chen et al. to arrive at the instant invention, as Chen et al. clearly teaches a formulation that includes more water than solvent, and fails to lead a skilled person to select an ethoxylate of a sugar alcohol given the large list of surfactants.
Applicant’s arguments have been fully considered, but have not been found persuasive.
With regard to Applicant’s argument that Chen et al. do not disclose formulations having an excess of glycol over water, and leads a skilled person to a formulation having more water than solvent; as noted in the rejection above, the formulation as taught by Chen et al. comprises glycol in amounts including about 5% to about 90% w/w, where water may be used to bring the total formulation weight to 100% (Abs.; Para. 20, 63). It would have been obvious to one of ordinary skill the art to utilize glycol within the expressly taught range, which includes amounts up to about 90% w/w, with the balance being water. Thus, the formulation can comprise glycol in a weight amount that exceeds the weight amount of water in the formulation.
Recitation in Chen et al. of examples that include more water do not teach away from the expressly taught amounts of glycol including up to 90% w/w. It is noted that a reference is relevant for all that it contains, including non-preferred embodiments, and such preferred embodiments do not constitute a teaching away from the other recited embodiments (see for example, MPEP 2143.01, I.; 2144.05, III., B.; 2141.02, VI.). As such, an ordinary artisan would have been led to follow the express teaching of up to 90% w/w glycol, and it is not a switch in the ratio to include more glycol than water, as more glycol than water is expressly taught as an option.
With regard to Applicant’s argument that Chen et al. teach numerous surfactants, and there is no guidance for an ordinary artisan to select sorbitan ethoxylates as the optional surfactant in the formulation; it is noted that the guidance to select a surfactant including an ethoxylate of a sugar alcohol, such as sorbitan ethoxylates and sorbitol oleate ethoxylates, is the express disclosure of these surfactants by Chen et al. (Abs.; Para. 45-48). It is noted that a reference is relevant for all that it contains, including non-preferred embodiments, and such preferred embodiments do not constitute a teaching away from the other recited embodiments (see for example, MPEP 2143.01, I.; 2144.05, III., B.; 2141.02, VI.). The recitation of a variety of possible surfactants do not teach away from a specifically taught surfactant, which includes sorbitan ethoxylates and sorbitol oleate ethoxylates. There is no teaching is Chen et al. that disparages the inclusion of sorbitan ethoxylates or sorbitol oleate ethoxylates in the formulation.
With regard to Applicant’s argument that there is no reason to modify Chen et al.; it is noted that Chen et al. has not been modified. Chen et al. teach at least one surfactant including an ethoxylate of a sugar alcohol, such as sorbitan ethoxylates and sorbitol oleate ethoxylates (Abs.; Para. 45-48), and as discussed previously, recitation in Chen et al. of examples that include more water do not teach away from the expressly taught amounts of glycol including up to 90% w/w.
For the forgoing reasons, the rejection over Chen et al. is maintained.
Conclusion
No claims are allowable.
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/JENNIFER M.H. TICHY/Primary Examiner, Art Unit 1653
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