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 .
Applicants’ amendment filed 9/26/2025 has been entered. Claims 1, 3, 6 and 14 were amended. Claim 4 was canceled. Claims 1-3 and 5-23 are pending.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-3 and 5-23 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a mutant that is derived from the strain NRRL B-67746 having a genomic sequence with greater than about 95% sequence identity to the strain without significantly more. This judicial exception is not integrated into a practical application because the mutant strains have the identifying characteristics of the NRRL B-67746 strain. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the limitation of greater than about 95% reads on 100% sequence identity which would encompass a pure sample of NRRL B-67746.
Maintained 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 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.
Claim(s) 1-3, 5-11 and 13-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Taghavi et al. (US 10,375,964; patented August 13, 2019).
Applicant’s Invention
Applicant claims a composition comprising a biologically pure culture of Bacillus spp. strain NRRL B-67746 or a mutant having all the identifying characteristics and a genomic sequence with greater than about 95% sequence identity to the strain of the strain having a genomic sequence with greater than about 95% sequence identity to the strain. (Claim 1)
Applicant claims a composition comprising a fermentation product of Bacillus spp. strain NRRL B-67746 or a mutant having all the identifying characteristics of the strain. (Claim 6)
Applicant claims a method of treating a plant to enhance plant growth comprising applying a composition comprising Bacillus spp. strain NRRL B-67746 or a mutant having all the identifying characteristics of the strain to a part of the plant and/or to a locus of the plant. (Claim 14)
Determination of the scope and the content of the prior art
(MPEP 2141.01)
With respect to claims 1-3, 5-11 and 13-23 of the instant application, Taghavi et al. teach a composition comprising biologically pure culture of Bacillus velezensis RTU301 or a mutant thereof having all the identifying characteristics thereof and a biologically pure culture of Bacillus subtilis RTI477 or a mutant thereof having all the identifying characteristics thereof, wherein the application of the composition to seed, roots or soil surrounding a plant benefits plant growth and health (column 2, lines 50-62). With respect to claims 15-23 of the instant application, Taghavi et al. teach methods of benefiting plant growth comprising delivering biologically pure culture of Bacillus velezensis to the seed of a plant, roots of a plant or soil surrounding the plant (column 2, lines 63-67). Soybean seeds were inoculated with combinations Bacillus velezensis and Bacillus subtilis at concentrations of 1x106 CFU/ml which improved plant growth (column 10, lines 7-47). With respect to claims 6 and 11, the biologically pure culture and the fermentation product, supernatant, extracts and metabolites are also encompassed and the compositions may be in the form of a planting matrix (column 14, lines 24-38). With respect to claims 5, 7, 8 and 13, the compositions further comprise a carrier, dispersant or yeast extract and can further comprise fungicide, insecticide, nematicide or other biological compound (column 14, line 39-47). With respect to claims 14 and 19, the combination resulted in a 5.7-20% increase in weight of marketable peppers when compare to the untreated group (column 12, lines 39-62). The formulations can include one or more chemical active agents which have antibacterial or antifungal properties which can encompass the term preservative (column 18, lines 4-13). With respect to claims 9 and 10, the formulations can be in the form of a suspension concentrate and can be combined with agriculturally acceptable adjuvants (column 27, lines 51-57). The plants treated also include sugarbeet, cotton, sorghum and corn (column 17, lines 10-30). When applied to seed the application rate is 1.0X102 to 1.0X109 CFU/seed (column 16, lines 27-29). Tomatoes are treated at a rate of 0.625x1012 CFU/hectare (column 12, lines 15-22).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
With respect to claims 1-3, 6, 14, 15, 18 and 19, Taghavi et al. do not specify the strain NRRL B-67746, however Bacillus velezensis is the species which has the sequence identified by the specification. Furthermore, Bacillus subtilis which has SEQ ID NO.1 disclosed on pages 44 & 45 has 99.5% similarity with strain NRRL B-67746. Therefore, one of ordinary skill would have been motivated to use the composition comprising Bacillus velezensis and Bacillus subtilis of SEQ ID NO. 1 and expect it to have the same identifying characteristics of the strain NRRL B-67746.
With respect to claims 1-11 and 13-23, Taghavi et al. do not specify the addition of preservatives or thickeners, however formulations of the composition includes emulsions, suspensions, dispersions and concentrates or any technically feasible formulation in combination with agriculturally acceptable adjuvants which inherently encompass thickeners and formulations can include one or more chemical active agents which have antibacterial or antifungal properties which encompass preservatives.
With respect to claims 19 and 20, Taghavi et al. does not specify increased plant nutrient uptake, specifically increased nitrogen uptake, however this would inherently be a property of the formulation because the compositions improve both plant growth and plant health.
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Therefore, it would have been prima facie obvious to one of ordinary skill to use the teachings of Taghavi et al. and use Bacillus velezensis or a mutant having all the identifying characteristics of the strain with a preservative with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Taghavi et al. to further include making a composition or fermentation product of Bacillus velezensis or a mutant having all the identifying characteristics of the strain and use the formulations to improve plant health since Bacillus velezensis has been identified as strain NRRL B-67746 and Taghavi et al. teach a composition comprising Bacillus velezensis and Bacillus subtilis of SEQ ID NO. 1 (99.5% sequence similarity) aid in improving plant health and growth.
Response to Arguments
Applicant's arguments filed 9/26/2025 have been fully considered but they are not persuasive.
Applicant argues that the similarity in 16S RNA sequence between the claimed strain and the one disclosed by Taghavi et al. is significant because it is a different strain with unique characteristics. Applicant argues that NRRL B-67746 produces indole acetic acid, improves nitrogen assimilation and nutrient uptake which is not taught by Taghavi et al. The Examiner is not persuaded by this argument because Applicant has failed to show these differences in the form of a side by side of the activity of the strain Bacillus velezensis in Taghavi and the claimed strain. Claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977) Since Taghavi teaches that Bacillus velezensis is known to improve plant health and also has the same sequence the claimed invention is prima facie obvious.
Claim 12 is rejected under 103 as being unpatentable over Taghavi et al. (US 10,375,964; patented August 13, 2019), as applied to claims 1-3, 5-11 and 13-23 in view of Smith et al. (US 2003/0228679; published December 11, 2003).
Applicant’s Invention
Applicant claims a composition comprising a biologically pure culture of Bacillus spp. strain NRRL B-67746 or a mutant having all the identifying characteristics of the strain. (Claim 1)
Determination of the scope and the content of the prior art
(MPEP 2141.01)
The teachings of 103 Taghavi et al. are addressed in the above rejection.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
With respect to claim 12, Taghavi et al. does not specify further inoculant is Bradyrhizobium (column 27, lines 50-57). It is for this reason that Smith et al. is joined.
Smith et al. teach inoculants for increasing plant growth comprising Bacillus subtilis (abstract). The inoculants can further comprise nitrogen-fixing rhizobacteria selected from Bradyrhizobium, Rhizobium, Sinorhizobium and Azorhizobium with Bradyrhizobium japonicum being preferred [0024]. The additional nitrogen fixing rhizobia is preferred in virgin soils which do not contain indigenous population of rhizobia [0028]. Enhanced soybean plant growth is achieved when Bacillus strains are co-inoculated with Bradyrhizobium [0068].
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
Both Taghavi et al. and Smith are drawn to methods of applying Bacillus spp. to enhance plant growth. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Taghavi et al. and Smith et al. to further include Bradyrhizobium with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Taghavi et al. and Smith et al. to further include Bradyrhizobium because Smith et al. teach co-inoculation of Bacillus species with Bradyrhizobium enhance plant growth and because Bradyrhizobium are added to virgin soils to provide nitrogen fixing rhizobia to the soil for future crops.
Response to Arguments
Applicant's arguments filed 9/26/2025 have been fully considered but they are not persuasive for the reasons set forth in the above response.
Conclusion
No claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1617