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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/8/2026 has been entered.
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 1-9, 11-13, 15-17, 19, and 25-26 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.
The term “shelf life” in claim 1 is a relative term which renders the claim indefinite. The term “shelf life” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Applicant appears to test “shelf life” in the specification using an accelerated shelf-life test at 40 °C for 62 days (Specification Para. 00074). Applicant states that at the conclusion of the test, the abundance of B. amyloliquefaciens “remained significant” (Specification Para. 00074) but does not provide an explicit definition as to what concentration of bacteria qualifies. Applicant appears to conflictingly state that “after 62 days there was a 10-fold loss in viable cells . . . compared to the Day 0 abundances,” (Specification Para. 00074) and this also seems to qualify as “shelf stable.” As such, it would not be readily apparent to one of ordinary skill in the art what criteria is being set forth (e.g., cell count, times, or temperatures, related to a measurable decrease in microbial stability) to establish the meaning of “shelf life.” For example, a formulation in which 90% of the bacteria die before 2 years could still be considered “shelf stable.”
It is noted that Applicant has amended claim 1 to include the limitation “wherein the composition maintains viable live organisms after accelerated aging at 40 °C for 62 days.” The Remarks state that Applicant has amended the claims to remove the term “shelf life” (Remarks Page 1). However, the term “shelf life” is still included in claim 1. Further, the new limitation does not clearly define or explain “shelf life” of at least 2 years, but rather appears to be a separate limitation. It does not refer back to “shelf life” or define it. It is also noted that the Specification states that “in the accelerated aging shelf life test, 60 days at 40 °C approximates storage at room temperature for 2 years” (Specification Para. 00070). However, the claims do not appear to be drafted in such a way as to incorporate this into the definition of “shelf life.”
As such, for purposes of examination, even a composition wherein most or even almost all of the microorganisms die in less than 2 years is still regarded as reading on this limitation, so long as the composition still contains at least one or more populations of live microorganisms at the 2 year mark.
Note that all other claims are being included as a result of their dependency upon a rejected claim as set forth above.
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(s) 1-6, 8-9, 11-12, 15, and 25-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kanagalingam (U.S. Patent Pub. No. 2020/0131096 A1, hereinafter "Kanagalingam") in view of Reinbergen (U.S. Patent No. 6471741 B1, hereinafter “Reinbergen”).
Regarding claim 1, Kanagalingam teaches a liquid biofertilizer composition (a biofertilizer composition which contains water and can be applied in liquid form) [Kanagalingam Abstract & Para. 0013] comprising:
One or more populations of live microorganisms (e.g., a microorganism consortium in culture medium which contains a live beneficial or useful microorganism or mixture thereof) [Kanagalingam Abstract & Para. 0198]; and
A chelate composition comprising at least one chelating agent and at least one micronutrient (the first additive in the composition can comprise a chelating agent which may be fulvic acid, humic acid, propionic acid, ethylenediaminetetraacetic acid, or a variety of other agents [Kanagalingam Para. 0083]; further, the second additive in the composition can comprise a chelated metal [Para. 0088] such as iron EDDHA, manganese EDTA or zinc EDTA [Para. 0092]);
Wherein the chelate composition is present in an amount from 20 wt. % to 99 wt. % (the first additive may be present at 5-15 wt. % and the second additive may be present at 5-15 wt. %; as such the first and second additives can add up to 30 wt. % of the composition) [Kanagalingam Claim 20].
Kanagalingam teaches that the composition has an appreciable shelf life [Kanagalingam Para. 0004] and is stable under various conditions as a liquid or dry formulation [Kanagalingam Para. 0121] but does not explicitly recite a shelf life of at least two years. However, Reinbergen teaches in a similar agricultural formulation for soil containing microorganisms such as bacillus and/or trichoderma bacteria that it is possible and advantageous to make such a formulation demonstrating stability for at least 18 months [Reinbergen Abstract] so that it can be stored long-term as a commercial agricultural product [Reinbergen Col. 1 lines 55-60]. Reinbergen states that the formulation further contains humic acid, cellulose, and other chelators, and is colloidal in nature [Reinbergen Col. 3 lines 43-45 & Col. 4 lines 40-45]. The formulation of Kanagalingam also contains humic acid [Kanagalingam Para. 0083], cellulose [Kanagalingam Para. 0098], chelators [Kanagalingam Abstract] and can be colloidal in nature [Kanagalingam Para. 0106]. Further, Reinbergen attributes the stability to the pH, ionic strength/salt index, and water activity of the formulation and teaches that these parameters can be adjusted within ranges to achieve a long shelf life [Reinbergen Col. 4 lines 5-15]. Specifically, for example, salt index can be adjusted by varying the nutrient sources and their amounts within the formulation [Reinbergen Col. 5 lines 4-35]. As such, in making the biofertilizer composition of Kanagalingam, one of ordinary skill in the art would look to Reinbergen and readily appreciate the advantages of implementing a shelf life of at least 18 months, and would know how to do so using ingredients that are already present (e.g., humic acid, cellulose, chelators) and by optimizing parameters such as the pH and salt index. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the composition of Kanagalingam to implement a shelf life overlapping with the claimed range as taught by Reinbergen (here, at least 18 months overlaps with at least 2 years). Overlapping ranges create a prima facie case of obviousness; see MPEP 2144.05.
Kanagalingam as modified by Reinbergen also does not explicitly state that the composition maintains viable live microorganisms after accelerated aging at 40 °C for 62 days. However, Applicant’s disclosure states that “60 days at 40 °C approximates storage at room temperature for 2 years” (Specification Para. 00070). As such, the composition of Kanagalingam as modified by Reinbergen having a shelf life of at least 18 months with preserved microbial spores and colonies [Reinbergen Col. 2 lines 60-63] appears to necessarily set forth a range which encompasses this limitation, as discussed above.
Regarding claim 2, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition further comprising one or more macronutrients (e.g., a nitrogen source such as urea) [Kanagalingam Para. 0088 & 0089].
Regarding claim 3, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition further comprising water (e.g., less than or equal to 10 wt. % water) [Kanagalingam Para. 0154].
Regarding claim 4, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition further comprising a biostimulant (e.g., substances that may support growth or metabolite production; specifically, organic acids, growth media, or vitamins [Kanagalingam Para. 0101], and optional excipients such as antioxidants, mineral salts, and nutritive agents, here interpreted as reading on biostimulants [Kanagalingam Para. 0111]).
Regarding claim 5, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition wherein the biostimulant comprises dead microorganism, fragments of dead microorganisms metabolites of microorganisms, microorganism fermentation products, enzymes, biological plant growth regulators, organic acids, chelators, or a combination thereof (e.g., substances that may support growth or metabolite production; specifically, organic acids, growth media, or vitamins) [Kanagalingam Para. 0101].
Regarding claim 6, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition wherein at least one or the one or more populations of live microorganisms promotes plant health, promotes plant growth, promotes micronutrient uptake, increases and/or accelerates nitrogen fixation, increases phosphorus availability, or a combination thereof (e.g., live beneficial or useful microorganisms which treat microbial imbalances in plants, protect plants from harmful microbes, and improve plant yield) [Kanagalingam Para. 0198].
Regarding claim 8, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition wherein the chelating agent is selected from EDTA, DTPA, EDDHA, NTA, EGTA, rhamnolipid, PEI, a lignosulfonate, a humic acid, a fulvic acid, an organic acid, a phenol, a polyflavonoid, citrate, ammonia, amines, or a combination thereof (the chelating agent may be fulvic acid, humic acid, ethylenediaminetetraacetic acid (EDTA), or a variety of other agents) [Kanagalingam Para. 0083].
Regarding claim 9, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition wherein the chelating agent is complexed with a micronutrient metal cation selected from the group consisting of zinc, iron, copper, cobalt, manganese, and magnesium (the composition can comprise a chelated metal [Kanagalingam Para. 0088] such as iron EDDHA, manganese EDTA or zinc EDTA [Kanagalingam Para. 0092]).
Regarding claim 11, Kanagalingam as modified by Reinbergen does not specifically state that the chelate composition is present in an amount from 50 wt. % to 85 wt. %. However, Kanagalingam teaches that the composition is made in a tank wherein the first additive (here, the chelating agent) may be present in an amount comprising less than 99.9% of the total in-tank solution [Kanagalingam Para. 0142]. Further, the second additive (here, the chelated metal) may be present in an amount comprising less than 99.9% of the total in-tank solution [Kanagalingam Para. 0143]. No other ingredients are necessarily added subsequent to forming the in-tank solution and before affording the final product. As such, it necessarily follows that the additives may be included in a wide variety of amounts in the final biofertilizer composition; i.e., anything less than 99.9%. In making the composition of Kanagalingam, one of ordinary skill in the art would look to the disclosed method and understand that the amounts of additives can be widely varied accordingly. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the composition of Kanagalingam to include the chelate composition component in an amount overlapping with the claimed range. Overlapping ranges create a prima facie case of obviousness; see MPEP 2144.05.
Regarding claim 12, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition wherein the one or more macronutrients is selected from nitrogen, phosphorous, and potassium (e.g., a nitrogen source such as urea) [Kanagalingam Para. 0089].
Regarding claim 15, Kanagalingam as modified by Reinbergen teaches a fertilizer formulation comprising the liquid biofertilizer composition of claim 1 and a conventional fertilizer (e.g., the biofertilizer composition may be used in simultaneous application or in combination with other fertilizers, the other fertilizers here interpreted as reading on conventional fertilizers) [Kanagalingam Para. 0177].
Regarding claim 25, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition wherein the chelating agent is complexed with a micronutrient metal cation selected from the group consisting of zinc, iron, copper, and manganese (the composition can comprise a chelated metal [Para. 0088] such as iron EDDHA, manganese EDTA or zinc EDTA [Kanagalingam Para. 0092]).
Regarding claim 26, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition, but does not explicitly state that the micronutrients of the chelate composition are 50 to 100% chelated. However, as discussed in the rejection of claim 1 above, Kanagalingam teaches that the first additive in the composition can comprise a chelating agent which may be fulvic acid, humic acid, propionic acid, ethylenediaminetetraacetic acid, or a variety of other agents [Kanagalingam Para. 0083] and the second additive in the composition can comprise a chelated metal [Kanagalingam Para. 0088] such as iron EDDHA, manganese EDTA or zinc EDTA [Kanagalingam Para. 0092]. The second additive supplying the chelated metal is regarded as supplying the micronutrients of the chelate composition. The micronutrients are regarded as being 100% chelated due to Kanagalingam’s definition of a chelated metal: “a central metal ion attached to a chelating agent in a chemical complex” [Kanagalingam Para. 0086]; i.e., the phrase “chelated metal” as used by Kanagalingam exclusively refers to the actual complex of the metal/micronutrient and the chelating agent. As such, the chelated metals of Kanagalingam in the composition are regarded as reading being 100% chelated and thus reading on a range of 50% to 100% chelated.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kanagalingam and Reinbergen as applied to claim 1 above, and further in view of Thompson (U.S. Patent Pub. No. 2016/0108096 A1, hereinafter “Thompson”).
Regarding claim 7, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition comprising live microorganisms (e.g., a microorganism consortium in culture medium which contains a live beneficial or useful microorganism or mixture thereof) [Kanagalingam Abstract & Para. 0198] and further teaches that the live microorganisms can be bacilli [Kanagalingam Para. 0012], but does not specifically teach that at least one or the one or more populations of live microorganisms is a population of Bacillus amyloliquefaciens. However, Thompson teaches that it is known in the fertilizer art when making formulations comprising micronutrients and bacterial inoculants [Thompson Para. 0649] to specifically include Bacillus amyloliquefaciens [Para. 0662]. Bacillus amyloliquefaciens is a preferable option because it is root-colonizing and also useful as a biofungicide [Thompson Para. 0668]. As such, in looking to include a live microorganism in the composition of Kanagalingam, one of ordinary skill in the art would look to Thompson and know that Bacillus amyloliquefaciens is known and even advantageous due to its root-colonizing and biofungicidal properties. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the composition in Kanagalingam to specifically include Bacillus amyloliquefaciens as taught by Thompson.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kanagalingam and Reinbergen as applied to claim 1 above, and further in view of Taghavi (U.S. Patent Pub. No. 2019/0191707 A1).
Regarding claim 13, Kanagalingam as modified by Reinbergen teaches the liquid biofertilizer composition consisting of:
The one or more populations of live organisms (e.g., a microorganism consortium in culture medium which contains a live beneficial or useful microorganism or mixture thereof) [Kanagalingam Abstract & Para. 0198];
The chelate composition wherein the chelating agent is selected from EDTA, HEDTA, DTPA, EDDHA, NTA, EGTA, rhamnolipid, and PEI (the first additive in the composition can comprise a chelating agent which may be fulvic acid, humic acid, propionic acid, ethylenediaminetetraacetic acid (EDTA), or a variety of other agents [Kanagalingam Para. 0083]; the second additive in the composition can comprise a chelated metal [Kanagalingam Para. 0088] such as iron EDDHA, manganese EDTA or zinc EDTA [Kanagalingam Para. 0092]);
One or more macronutrients in an amount from 0 wt. % to about 7 wt. % (e.g., a nitrogen source such as urea can be added in an amount comprising about 5% or about 2% or about 1% of the composition) [Kanagalingam Para. 0089 & 0090];
A biostimulant in an amount from about 0 wt. % to about 30 wt. % (e.g., substances that may support growth or metabolite production; specifically, organic acids, growth media, or vitamins [Kanagalingam Para. 0101] or optional excipients such as antioxidants, mineral salts, and nutritive agents, here interpreted as reading on biostimulants [Kanagalingam Para. 0111]; the excipients can be added in an amount comprising about 30 wt. % or less of the composition [Kanagalingam Para. 0120]); and
Water (the composition comprises water) [Kanagalingam Para. 0014]
Kanagalingam does not specifically state that (1) the chelate composition is present in an amount from 50 wt. % to 85 wt. % or (2) the one or more populations of live microorganisms are present in an amount from about 0.01 wt. % to about 30 wt. %.
As to (1), Kanagalingam teaches that the composition is made in a tank wherein the first additive (here, the chelating agent) may be present in an amount comprising less than 99.9% of the total in-tank solution [Kanagalingam Para. 0142]. Further, the second additive (here, the chelated metal) may be present in an amount comprising less than 99.9% of the total in-tank solution [Kanagalingam Para. 0143]. No other ingredients are necessarily added subsequent to forming the in-tank solution and before affording the final product. As such, it necessarily follows that the additives may be included in a wide variety of amounts in the final biofertilizer composition; i.e., anything less than 99.9%. In making the composition of Kanagalingam, one of ordinary skill in the art would look to the disclosed method and understand that the amounts of additives can be widely varied accordingly. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in making the composition of Kanagalingam to include the chelate composition component in an amount overlapping with the claimed range. Overlapping ranges create a prima facie case of obviousness; see MPEP 2144.05.
As to (2), Taghavi teaches that when using live bacillus strains along with fertilizers [Taghavi Abstract] such as liquid fertilizers comprising micronutrients [Taghavi Para. 0091], it is known to include the bacillus culture in an amount comprising 0.5-40 wt. % of the composition [Taghavi Para. 0048 & Claim 4]. As such, in looking for a suitable percentage of live microorganisms to include in the composition of Kanagalingam as modified by Reinbergen, one of ordinary skill in the art would look to Taghavi and know that a similar range encompassing the claimed range is known and acceptable in order to make a composition which benefits plant growth and confers protection against fungal infection [Para. 0019]. Similar or overlapping ranges create a prima facie case of obviousness. See MPEP 2144.05.
The only required elements in the composition of Kanagalingam appear to be the microbial consortium, the two additives (here, the chelate composition), and water [Kanagalingam Para. 0014]. As such, Kanagalingam is regarded as meeting the closed requirement established by the connecting term “consisting of” in line 2 of the claim.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kanagalingam and Reinbergen as applied to claim 1 above, and further in view of Subramanyam (U.S. Patent Pub. No. 2016/0130189 A1, hereinafter “Subramanyam”).
Regarding claim 16, Kanagalingam as modified by Reinbergen teaches the fertilizer formulation comprising the composition of claim 1 and a conventional fertilizer (e.g., the biofertilizer composition may be used in simultaneous application or in combination with other fertilizers, the other fertilizers here interpreted as reading on conventional fertilizers) [Kanagalingam Para. 0177] but does not specifically disclose that the conventional fertilizer comprises at least one of ammonia, urea, ammonium nitrate, ammonium sulfate, ammonium thiosulfate, monoammonium phosphate (MAP), diammonium phosphate (DAP), muriate of potash (MOP), sulfate of potash (SOP), and potassium nitrate (NOP). However, Subramanyam teaches that it is known in the fertilizer art that conventional fertilizers [Subramanyam Para. 0077] which can be mixed with liquid/slurry additives [Subramanyam Para. 0076] include urea, ammonium sulfate, diammonium phosphate, and potassium chloride (i.e., muriate of potash) [Subramanyam Para. 0077]. As such, selecting said conventional fertilizers amounts to no more than choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success; i.e., providing a suitable conventional fertilizer with which to combine the fertilizer formulation of Kanagalingam. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include urea, ammonium sulfate, diammonium phosphate, and/or potassium chloride (muriate of potash) as taught by Subramanyam as the conventional fertilizer in the formulation of Kanagalingam as modified by Reinbergen.
Claim(s) 17 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kanagalingam and Reinbergen as applied to claims 1 and 15 above, and further in view of Dean (U.S. Patent No. 5997600 A, hereinafter “Dean”).
Regarding claim 17, Kanagalingam as modified by Reinbergen teaches the fertilizer formulation comprising the composition of claim 1 and a conventional fertilizer (e.g., the biofertilizer composition may be used in simultaneous application or in combination with other fertilizers, the other fertilizers here interpreted as reading on conventional fertilizers) [Kanagalingam Para. 0177] but does not specifically teach that the composition is mixed with the conventional fertilizer in a ratio of about 3:1 to about 1:100. However, Dean teaches that liquid fertilizer additives which include chelated metal ions [Dean Abstract] can be blended with conventional liquid fertilizers such that the concentration of the complexed metal supplied by the additive is about 0.001 to about 5.0 wt. % in the final fertilizer composition [Dean Col. 3 lines 57-67], which is typically achieved when the weight ratio of fertilizer additive to liquid fertilizer is 1 part additive to 1-10 parts liquid fertilizer [Dean Col. 4 lines 1-3]. As such, in looking for an appropriate weight ratio of the composition of Kanagalingam to a conventional fertilizer, one of ordinary skill in the art would look to Dean and readily appreciate that a range; specifically, 1:1-10, which falls within the claimed range, is acceptable, and can even further be customized based on the amount of metal supplied by the additive. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention in mixing the composition with a conventional fertilizer as taught by Kanagalingam as modified by Reinbergen to do so in a weight ratio of additive to fertilizer comprising 1:1-10 as taught by Dean.
Regarding claim 19, Kanagalingam as modified by Reinbergen teaches the fertilizer formulation comprising the composition of claim 1 and a conventional fertilizer (e.g., the biofertilizer composition may be used in simultaneous application or in combination with other fertilizers, the other fertilizers here interpreted as reading on conventional fertilizers) [Kanagalingam Para. 0177] but does not specifically teach that the composition is splash mixed into the conventional fertilizer. Note that product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps; see MPEP 2113. In light of Applicant’s specification which reads “splash mixing (i.e., adding the formulation to the standard fertilizer)” describing an embodiment in which the additive is mixed with a liquid fertilizer [Specification Para. 00040], a composition in which the formulation is added into a conventional liquid fertilizer is regarded as reading on “splash mixed.” Dean teaches that it is known to blend liquid fertilizer additives which include chelated metal ions [Dean Abstract] with conventional liquid fertilizers [Dean Col. 2 lines 46-49] in order to deliver appropriate micronutrient levels of trace metals to plants [Dean Col. 1 lines 46-52]. As such, one of ordinary skill in the art would readily appreciate that it is standard to combine a chelated metal additive with a liquid fertilizer to afford a complete fertilizer composition. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the fertilizer formulation of Kanagalingam as modified by Reinbergen within a liquid fertilizer composition as taught by Dean.
Response to Arguments
Applicant's arguments filed 1/8/2026 have been fully considered but they are not persuasive.
The claim rejections under 25 U.S.C. 112 (b) are maintained for the reasons set forth as detailed in the rejection on Pages 3-4 above.
The prior art rejections are maintained for the reasons set forth below.
Regarding claim 1, Applicant argues that the invention has an extended shelf life with viable live microorganisms after an accelerated aging test (Remarks Page 2). Applicant attributes this extended shelf life to the separation of the microorganisms into a distinct phase during extended storage. It is noted that this separation is not included in the claims as presently drafted. Applicant further points to Reinbergen’s disclosure as implementing particular ingredients to serve different functions in the fertilizer composition. For example, Reinbergen utilizes a colloidal preservation solution. As such, Applicant argues that one of ordinary skill in the art, following Kanagalingam, would not look to Reinbergen. However, the different purposes of including the ingredients do not form a sufficient distinction. “A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 421, 82 USPQ2d at 1397. “[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle.” Id. At 420, 82 USPQ2d at 1397. Office personnel may also take into account “the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. At 418, 82 USPQ2d at 1396. Here, assuming that Applicant is correct in asserting that Kanagalingam and Reinbergen implement the same ingredients for different purposes, one of ordinary skill in the art would readily appreciate the advantages of optimizing the shelf life of a fertilizer as taught by Reinbergen (e.g., to permit long-term storage), and would know how to do so with reasonable expectation of success via Reinbergen’s further teachings which advantageously use ingredients already present in the composition of Kanagalingam. Further, the compositions of Reinbergen and Kanagalingam have several similarities: Reinbergen states that the formulation further contains humic acid, cellulose, and other chelators, and is colloidal in nature [Reinbergen Col. 3 lines 43-45 & Col. 4 lines 40-45]. The formulation of Kanagalingam also can contain humic acid [Kanagalingam Para. 0083], cellulose [Kanagalingam Para. 0098], chelators [Kanagalingam Abstract] and can be colloidal in nature [Kanagalingam Para. 0106]. These similarities provide further evidence that one of ordinary skill in the art, in making the composition of Kanagalingam, would readily look to Reinbergen.
Regarding claim 13, Applicant argues that the combination of Kanagalingam and Reinbergen would include at least 5% by weight humic acid, at least 7% by weight cellulose fiber, at least about 1% carbohydrate, and at least about 1% amino acids [Reinbergen Col. 4 lines 53-57 and Col. 3 lines 57-60] because these are necessary for long term stability of the spores, and therefore the composition does not meet the requirement of the closed connecting phrase “consisting of”. However, Reinbergen does not appear to clearly attribute the long term stability to these ingredients in these amounts. Rather, Reinbergen says “while not wishing to be bound to any theory, it appears that a reason for the long term stability of microbial spores and/or colonies in the solutions of the invention is related to the colloidal nature of the solution, which controls osmolality and osmotic pressure” [Reinbergen Col. 4 lines 53-65]. Reinbergen also suggests that this is related to the salt index [Reinbergen Col. 4 lines 66-67]. Further, Reinbergen discloses “typical embodiments” or “typical solutions” containing the above recited amounts of ingredients [Reinbergen Col. 3 lines 57-60] but does not absolutely require these. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)). As such, the ideas of optimization of shelf life and the instructions for how to perform this are still relevant despite the option to include certain ingredients. Therefore, the combination of Kanagalingam and Reinbergen does not necessarily require the above recited ingredients in those particular amounts. Therefore, the combination is still regarded as reading on the composition described by the closed connecting term “consisting of.”
It is also noted that while claim 13 recites a composition “consisting of” the recited ingredients, claim 1 allows for an open-ended chelate composition: “A chelate composition comprising at least one chelating agent and at least one micronutrient . . .” Claim 13 refers back to and includes this same open-ended chelate composition. As such, any additional ingredients could be mapped to the claim as being part of the chelate composition, which is open-ended and could comprise additional ingredients.
For at least the foregoing reasons, Applicant’s arguments are not found persuasive and the challenged rejections are maintained.
Conclusion
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/H.E.R./ Examiner, Art Unit 1731
/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731