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 I, claims 62-66, in the reply filed on 5/2/2025 is acknowledged.
Applicant’s election without traverse of the species C. rosea var catenuata (claim 64; see (i)) as the microbial spore; and glycine betaine as the germinant in the reply filed on 5/2/2025 is acknowledged.
Claims 48-61 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 5/2/2025.
Claims 68-69, 73, 75-81 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim.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 5/2/2025.
Response to Arguments
Applicants' arguments, filed 10/17/2025, have been fully considered but they are not deemed to be persuasive. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 62-67, 70-72, 74 is/are rejected under 35 U.S.C. 103 as being unpatentable over Seiskari (WO 2006/070061 A1; 2006).
Examiner notes that, according to https://verdera.fi/en/product/prestop/; accessed 5/15/2025, Prestop®, which contains naturally occurring soil fungus Clonostachys rosea J1446, this fungus is (formally Gliocladium catenulatum). The instant disclosure states that Prestop® is C. rosea f. catenulate J1446 (specification, 9:4); i.e., the elected species, now recited in claims 70-72. This evidence establishes Gliocladium catenulatum is an alternate name for the same fungus species as that elected.
Seiskari teaches a stable storage paste of microbial inoculants (3:22-23); microorganisms mixed with solutions containing various protective substances (3:30-32); spores are in most cases the preferred form of living unit when sporulating microbes are cultivated (5:33-35); preferable protective substances include, inter alia, Applicant elected glycinebetaine (6:5-6), which is used in Examples 1, 3 (the amount used in Example 1 was (2.5/2)/20 or 0.0625 %, within the ranges of claim 66, (i), at least 0.06%). Gliocladium catenalatum fungus (a.k.a., Applicant elected C. rosea f. catenulata J1446) was used in Example 6 in sporulated form. Concentrations of viable units range from 1 x 107 to 5 x 107 cfu/g (Table 6), reading on the ranges of at least about 1 x 107 in claim 66 (iii).
Claim 1 is drawn to a stable storage paste include 0.25-5% microorganism, and 5-35% protective substance; claim 2 is drawn to an inoculant of claim 1 comprising lower amounts of microorganism and protective substance; the inoculant contains microorganism Gloicladium catenulatum (claim 4). The protective substance is selected from a listing that include glycinebetain (claim 9).
Seiskari teaches the elected composition, with the exception that the formulations are not dry powders. Regarding the recited intended use, “for controlling a plant pathogen or a pest or improving growth, development and/or productivity of a plant”, Example 6 was sprayed to turf grass on a golf course for controlling a common disease, snow mould (satisfying for controlling a plant pathogen). Additionally, the alternatives recited are construed as characteristic of the elected combination, absent evidence to the contrary. Claim 66 is construed as reciting alternatives for this intended use, which are also construed as characteristic of the elected combination.
It is noted that In re Best (195 USPQ 430) and In re Fitzgerald (205 USPQ 594) discuss the support of rejections wherein the prior art discloses subject matter which there is reason to believe inherently includes functions that are newly cited or is identical to a product instantly claimed. In such a situation the burden is shifted to the applicants to "prove that subject matter shown to be in the prior art does not possess characteristic relied on" (205 USPQ 594, second column, first full paragraph).
The claims amend the compositions recited to require a dry powder composition. The stable storage paste of microbial inoculants of Seiskari are not reasonable construed as a dry powder. However, in the background section microbes were made cultivated on particulate carrier, such as fine peat, and stored in this form; the solid medium is suspended in water containing an optional thickening agent just prior to application by spraying; in this method the product is stored in a dry state, not suspension; products obtained using this method are wettable powders which have to be suspended in liquid upon application (3:2-8). This product is dry and is a wettable powder; i.e., these compositions are dry powders. Thus, Seiskari teaches an alternate formulation that is a dry powder. Accordingly, dry powders are art recognized alternate formulations from the pastes taught. It would have been obvious to reformulate the pastes in the form of dry powders, rendering the claimed compositions as prima facie obvious, substituting an alternate suitable dry powder known in the art for the paste.
Conclusion
No claim is allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 TIMOTHY P THOMAS whose telephone number is (571)272-8994. The examiner can normally be reached M-Th 6:30-5:00.
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, Ali Soroush can be reached at (571)272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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TIMOTHY P. THOMAS
Primary Examiner
Art Unit 1614
/TIMOTHY P THOMAS/Primary Examiner, Art Unit 1614