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
Applicant’s Request for Reconsideration dated July 28, 2025 is acknowledged.
Claims 1-14 and 16-30 are pending.
Claims 15 is cancelled.
Claims 11-14 and 16-20 are currently amended.
Claims 1-10 and 21-30 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected inventions, there being no allowable generic or linking claim.
Claims 11-14 and 16-20 as filed on July 28, 2025 are under consideration.
This action is made FINAL.
Withdrawn Objections / Rejections
In view of the replacement drawings, all previous objections to the drawings are withdrawn.
In view of the amendments to the specification, all previous objections to the specification are withdrawn.
In view of the amendment of the claims, all previous claim objections are withdrawn, some previous claim rejections under 35 USC 112(b) are withdrawn, all previous claim rejections under 35 USC 112(d) are withdrawn, all previous claim rejections under 35 USC 102 by Quong are withdrawn, and all previous claim rejections under 35 USC 103 over Quong are withdrawn.
Applicant’s arguments have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn.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 Objections
Claim 14 is objected to because of the following informalities: “ingredient(s)” should recite “ingredients” consistent with the antecedent. Appropriate correction is required.
Priority
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of 35 U.S.C. 112 (pre-AIA ). See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 62/898,211, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph for one or more claims of this application.
The prior-filed application does not disclose the urea of claim 13 or Azospirillum of claim 19.
The earliest date available to these claims is September 10, 2020.
Response to Arguments: Priority
Applicant’s citation to page 5, lines 11-13 of the prior-filed application for literal support for fertilizers and pesticides at page 12 of the Remarks is acknowledged and is persuasive.
Maintained Grounds of Rejection / New Grounds of Rejection Necessitated by Amendment
Claim Rejections - 35 USC § 112(b)
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 12-14 and 16-20 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 pre-AIA the applicant regards as the invention.
Claim 12 recites the active ingredients. There is insufficient antecedent basis for “the active ingredients” because claim 11 recites one or more active ingredients and it is unclear whether “the active ingredients” references one, more than one, or all of the one or more active ingredients of claim 11. Claim 13 is included in this rejection because it depends from claim 12 and thus it also recites the embodiment under rejection.
Claim 14 recites the active ingredient(s). There is insufficient antecedent basis for “the active ingredients” because claim 11 recites one or more active ingredients and it is unclear whether “the active ingredient(s)” references one, more than one, or all of the one or more active ingredients of claim 11.
Claim 16 recites the lipophilic and hydrophilic compounds. There is insufficient antecedent basis for “the lipophilic and hydrophilic compounds” because claim 11 recites one or more lipophilic and hydrophilic compounds and it is unclear whether “the lipophilic and hydrophilic compounds” references one, more than one, or all of the one or more of claim 11.
Claim 17 recites the lipophilic and hydrophilic compounds. There is insufficient antecedent basis for “the lipophilic and hydrophilic compounds” because claim 11 recites one or more lipophilic and hydrophilic compounds and it is unclear whether “the lipophilic and hydrophilic compounds” references one, more than one, or all of the one or more of claim 11. Claims 18-20 are included in this rejection because they depend from claim 17 and thus they also recite the embodiment under rejection.
New Grounds of Rejection Necessitated by Amendment
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 11, 14, 16, 17 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Quong (US 2002/0136770, published September 26, 2002, of record) in view of Avidov et al. (WO 2018/051344, published March 22, 2018, IDS reference filed March 9, 2022).
Quong teaches sprayable (sludge, slurry or liquid) compositions comprising microbeads suspended in a solution, said microbeads comprising a hydrophilic matrix made from a polysaccharide inclusive of alginate, said matrix comprising a plurality of active material droplets entrained therein (title; abstract; claims, in particular 19-21; paragraphs [0001]-[0094], in particular [0019], [0023], [0024], [0029]-[0032], [0055], [0056], [0069]; Examples). The matrix is capable of immobilizing a broad spectrum of active materials, either water soluble (hydrophilic) or non-water soluble (lipophilic) (paragraphs [0007], [0013]). Active materials include pesticides (claim 23; paragraph [0035]), as required by instant claim 14. The microbeads further comprise a surfactant; the surfactant enhances droplet formation of the active in the continuous phase of the matrix (claim 30; paragraph [0064]). In an embodiment, an emulsion of an oil active within a water soluble solution is first formed; this emulsion is followed by a mechanical microbead formation step (paragraph [0056]). Quong further teaches agricultural applications (e.g., paragraphs [0001]-[0002]). The actives entrained in the matrix are released into the environment over an extended period (paragraph [0008]).
Quong does not specifically teach one or more active ingredients comprising a mixture of one or more lipophilic and hydrophilic compounds in the form of an oil in water emulsion as required y claim 11.
Quong does not teach compounds with anti-inflammatory activity as required by claim 16.
Quong does not teach non-pathogenic bacteria as required by claim 17.
Quong does not teach Bacillus subtilis as required by claim 20.
These deficiencies are made up for in the teachings of Avidov.
Avidov teaches compositions comprising a non-pathogenic bacteria and an activating agent and methods of use thereof for protecting plant and animal hosts from fungal, bacterial and viral diseases (title; abstract; claims; page 3, 1st full paragraph), as required by instant claim 17. The non-pathogenic bacteria comprise Bacillus subtilis (claims 3, 4, 34, 35), as required by instant claim 20. The activating agent is a substance having anti-inflammatory activity (claims 11, 28), as required by instant claim 16. The activating substance is selected from the group inclusive of sclareol (lipophilic) and steviol glycoside (hydrophilic); the activating substance includes both hydrophilic and hydrophobic (lipophilic) substances necessitating an emulsified mixture such as an oil-in-water emulsion as exemplified (claims 16, 33, 39; page 14, 1st full paragraph; page 17, agents 1, 4; Example 16, pages 49-50; Example 17, pages 51-52; Example 18, page 54). The compositions may further comprise inter alia emulsifiers and release-control agents (claim 32). The compositions may be applied to plants in the form of granules (claims 22, 24, 25). Granules encompass beadlets comprising the compositions within their internal structure (page 11, 3rd full paragraph).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the active materials of the microbeads of the compositions of Quong inclusive of pesticides to further comprise non-pathogenic bacteria inclusive of Bacillus subtilis and an activating agent comprising both hydrophilic and hydrophobic (lipophilic) substances in the form of an emulsified oil-in-water mixture as taught by Avidov in order to provide sprayable compositions for protecting plants from fungal, bacterial and viral diseases and which release the actives entrained in the matrix of the microbeads into the environment over an extended period. There would be a reasonable expectation of success because Quong embraces the presence of a broad spectrum of active materials including water soluble and non-water soluble actives and because Quong, as a whole, relates to agricultural applications.
Claims 12, 13, 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Quong (US 2002/0136770, published September 26, 2002, of record) in view of Avidov et al. (WO 2018/051344, published March 22, 2018, IDS reference filed March 9, 2022) as applied to claims 11, 14, 16, 17 and 20 above, and further in view of Allen et al. (WO 2019/232049, filed May 29, 2019, of record).
The teachings of Quong and Avidov have been described supra.
Quong further teaches the microbeads further comprise additives inclusive of humectants (claim 15).
They do not teach fertilizers as required by claim 12.
They do not teach urea as required by claim 13.
They do not teach nitrogen-fixing bacteria as required by claim 18.
They do not teach Rhizobium or Azospirillum as required by claim 19.
These deficiencies are made up for in the teachings of Allen.
Allen teaches compositions comprising microencapsulated plant beneficial gram negative bacteria and methods of use thereof to treat plants; the microcapsules comprise alginate (title; abstract; claims, in particular claim 1). Plant beneficial gram negative bacteria include inter alia Rhizobium and Azospirillum (nitrogen-fixing) (paragraph [0029]), as required by instant claims 18, 19. The compositions may further comprise a humectant inclusive of urea (fertilizer); humectants improve the shelf life of the encapsulated bacteria (claim 1; paragraph [0050]), as required by instant claims 12, 13. The compositions may further comprise a fertilizer (claim 8), as required by instant claim 12. The compositions may further comprise an additional active such as a pesticide or a second biological (paragraph [0051]). The second biological can be a bacterium selected from the group inclusive of Bacillus subtilis (paragraph [0057]). The compositions promote plant growth (e.g., paragraph [0002]).
Regarding claims 12, 13, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute humectants inclusive of urea as taught by Allen for the humectant of the microbeads of Quang because simple substitution of functionally equivalent elements yields predictable results, absent evidence to the contrary.
Regarding claims 18, 19, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the active material of the microbeads of the compositions of Quong in view of Avidov to further comprise additional plant beneficial bacteria inclusive of Rhizobium and Azospirillum (nitrogen-fixing) as taught by Allen in order to promote plant growth. There would be a reasonable expectation of success because Quong embraces the presence of a broad spectrum of active materials including water soluble and non-water soluble actives and because Allen teaches these beneficial bacteria are compatible with Bacillus subtilis.
Response to Arguments
Applicant's arguments have been considered but are substantially moot in light of the new grounds of rejection necessitated by Applicant’s amendments.
With regard to Applicant’s citation to the “oil active” of select embodiments of Quang at pages 12-13 of the Remarks, Applicant is reminded that the disclosure of Quang is not limited to the examples thereof. See MPEP 2123. Quang clearly embraces water soluble active materials (e.g., paragraph [0007]). Applicant’s further citation to “inactive” hydrophilic ingredients at page 14 is also misplaced because any hydrophilic ingredient having any activity falls within the broad generic scope of an active. Nonetheless, the rejections over Quang have been updated as necessitated by Applicant’s amendments.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Watrin et al. (EP 2,100,509) is the closest prior art as identified by USPTO artificial intelligence and teaches pesticidal compositions comprising thiabendazole and abamectin (title; abstract; claims).
Naito (JP 2619705 B2, as evidenced by the Google translation) teaches alginate capsules comprising an o/w emulsion (title; abstract; claims).
Connick, Jr. (US 4,400,391) teaches controlled release of active materials inclusive of pesticides and fertilizers with alginate gel beads (title; abstract; claims; column 3, lines 23-29).
Bullis et al. (US 2014/0342905) teaches plant-growth promoting microbes, compositions comprising fertilizers or/and pesticides, and methods for treating phytopathogenic diseases (title; abstract; claims).
Duong et al. (US 2018/0332845) teaches agricultural compositions comprising microorganisms / bacteria / Azospirillum encapsulated in polymer / alginate gel microbeads (title; abstract; claims; paragraphs [0020], [0021]).
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 ALISSA PROSSER whose telephone number is (571)272-5164. The examiner can normally be reached M - Th, 10 am - 6 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, DAVID BLANCHARD can be reached on (571)272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALISSA PROSSER/
Examiner, Art Unit 1619
/MARIANNE C SEIDEL/Primary Examiner, Art Unit 1600