DETAILED ACTION
Status of the Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 7 and 14-16 are withdrawn.
Claims 1-6, 11-13, and 17 are pending and represent all claims currently under consideration.
Response to Amendment
The amendment filed 11/20/2025 has been entered.
Claim 17 was added. Claims 1-4 and 11 were amended. No new material was added.
Applicant’s amendments have overcome the previous objections to the claims and the specification, and the rejection under 35 U.S.C. 112(b) of claim 1.
The rejections of claims 2-4 and 11 under 35 U.S.C. 112(b) has been modified to address the amendments and maintained.
Claims 1-6, 11-13, and 17 are newly rejected under 35 U.S.C. 112(b) due to the amendment.
The rejections of claims 1-6 and 11-13 under 35 U.S.C. 103 has been modified to address the amendments and maintained.
The new claim 17 is also rejected under 35 U.S.C. 103.
Response to Arguments
Applicant's arguments filed 11/20/2025 have been fully considered but they are not persuasive.
Applicant argues that the cited art does not suggest the specific combinations of ingredients that work synergistically as demonstrated in the present application, and rely on piecemeal reconstruction and impermissible hindsight (Remarks, pages 8-11). This argument is not persuasive, because as stated previously, Deisenroth and Belchar are both considered to be analogous to the claimed invention, because all are in the same field of fungi treatments for improving plant growth. Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Deisenroth with Belchar. Further, Deisenroth teaches the compound ratios of the compositions are advantageously chosen so as to produce a synergistic effect (Deisenroth, page 91, lines 38-39). As for the assertion that the rejection is based on hindsight, as noted in MPEP 2145, any obviousness rejection is in a sense necessarily a reconstruction based on hindsight reasoning and is not improper if it takes into account only knowledge within the level of ordinary skill in the art at the time the claimed invention was made. Applicants have provided no evidence that the rejection is not based on knowledge available to those of ordinary skill in the art.
Applicant argues that one skilled in the art would not use a yucca extract as a biostimulant as in the presently claimed invention, because Deisenroth teaches the yucca extract as a biochemical pesticide, while Belchar teaches the yucca extract as a surfactant (Remarks, pages 9-10). This argument is not persuasive, because as previously stated, Deisenroth teaches extracts can come from other biological sources and stimulate plant growth (Deisenroth, page 25, lines 1-21), while Belchar teaches yucca extract improves efficiency (Belchar, page 10, paragraph 0110) of a plant growth promoter (Belchar, page 2, paragraph 0011). Therefore, it would be prima facie obvious to one of ordinary skill in the art to utilize a biological extract such as that taught by Belchar to stimulate plant growth as taught by both references.
Applicant argues that the inclusion of spores in the formulation produces unexpected technical effects of a longer shelf life, high stability, improved root penetration and adhesion, increased nutrient absorption, environmentally friendly, and universal compatibility (Remarks, pages 11-16). This argument is not persuasive, because Applicant must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. See MPEP 716.02(e). In this case, no evidence is provided to demonstrate that the composition of Deisenroth does not produce the above named effects. Further, Deisenroth teaches a lengthened shelf life (Deisenroth, page 1, lines 15-16), improved storage and light stability (Deisenroth, page 25, line 43), increased micro-nutrient uptake aiding in the development of root systems (i.e., the roots take up more nutrients suggesting better penetration; Deisenroth, page 70, lines 24-25), a good compatibility with plants to address various issues (i.e., universal compatibility (Deisenroth, page 26, lines 1-5), and teaches a non-toxic mode of action toward plants an mammals (i.e., environmentally friendly; Deisenroth, page 25, lines 2-4), suggesting these results could be expected based on the composition of Deisenroth.
Applicant argues that none of the cited references disclose or suggest the use of a consortium of spores, which is a key feature of the claimed invention (Remarks, pages 14-15). This argument is not persuasive, because as previously stated, Deisenroth teaches a composition comprising a microbial pesticide which can be Glomus intraradices (i.e. a suitable arbuscular vesicle mycorrhizal fungi/spore from the claimed list; Deisenroth, claim 7, L5). This is further evidenced by Deisenroth’s statement that the mixture forms from spores of at least one pesticide selected from the group L5 (Deisenroth, page 90, lines 16-18), suggesting the pesticide Glomus intraradices exists as spores, and that more than one (i.e., a consortium of) spore is present.
Applicant argues that particle sizes ranging from 177 to 105 microns and a pH of 8-10 provides a technical advantage of addressing a common issue of precipitation (Remarks, page 15). This argument is not persuasive, because as stated previously, Deisenroth and Belcher together teach both the stated size and pH, and therefore, the composition of Deisenroth and Belcher would be expected to have the same property of decreased precipitation.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Should applicant desire to obtain the benefit of foreign priority under 35 U.S.C. 119(a)-(d) prior to declaration of an interference, a certified English translation of the foreign application must be submitted in reply to this action. 37 CFR 41.154(b) and 41.202(e).
Failure to provide a certified translation may result in no benefit being accorded for the non-English application.
Claims 1-7 and 11-17 are considered to have an effective filing date of 07/03/2020.
New Claim Objections
Claims 3-4 are objected to because of the following informalities. Appropriate correction is required.
Regarding claims 3-4, “weight percentage” should read “a weight percentage”.
Modified/Maintained 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 2-4 and 11 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.
Regarding claim 2, the claim recites the limitation “the total weight composition”. There is insufficient antecedent basis for these limitations in the claim. This limitation should read “a total weight of the composition”.
Regarding claims 3-4, the claims recite the limitation “the total composition”. There is insufficient antecedent basis for these limitation in the claim. This limitation should read “a total weight percentage of the composition”.
Regarding claim 11, the claim recites the limitations "the percentages" and “the total composition”. There is insufficient antecedent basis for these limitation in the claims. This limitation should read “wherein the concentration is expressed in a total weight percentage of the composition”.
New Claim Rejections - 35 USC § 112
Claims 1-6, 11-13, and 17 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.
Regarding claim 1, the claim recites the limitation “the strains of arbuscular vesicle mycorrhizal fungi”. There is insufficient antecedent basis for these limitations in the claim.
Regarding claims 2-6, 11-13, and 17, each claim is dependent on the rejected claim 1 and does not cure its deficiencies.
Regarding claim 17, the term “2,4-D-indoleacetic acid” renders the claim indefinite, because it is not clear what this compound name is referring to. As evidenced by Revista Cultivar, 2,4-D (i.e., 2,4-Dichlorophenoxyacetic acid) is one of the most widely used herbicides in modern agriculture and is a mimic of the natural plant auxin indoleacetic acid (Revista Cultivar, 2,4-D, pages 1-2). For the purposes of examining the prior art, it is the Examiner’s interpretation that “2,4-D-indoleacetic acid” was intended to refer to the commonly used “2,4-D”.
Modified/Maintained 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.
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.
Claims 1, 3-6, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Deisenroth (WO 2014056780 A1), further in view of Belcher (US 20170334797 A1), and as evidenced by MP Biomedical. The references were cited previously by the Examiner.
Regarding claim 1, Deisenroth teaches a composition for treating plants (Deisenroth, abstract) which can stimulate plant growth and yield enhancing activity (i.e., a biological plant strengthener to improve crop yields; Deisenroth, page 25, line 21), wherein the composition comprises a microbial pesticide which can be Glomus intraradices (i.e. a suitable arbuscular vesicle mycorrhizal fungi spore from the claimed list; Deisenroth, claim 7, L5); biochemical pesticides which can be humates (Deisenroth, claim 7, L6), which are defined as humic and fulvic acid extracts (Deisenroth, page 70, line 21), and Ascophyllum nodosum (i.e., a seaweed extract as defined by claim 17; Deisenroth, claim 7, L6); growth regulators which can be indole-3-acetic acid (i.e., a naturally occurring growth hormone for root growth as evidenced by MP Biomedical; Deisenroth, claim 7, M); stabilizers which can be maltodextrin (i.e., an oligosaccharide from the claimed list; Deisenroth, page 87, line 32); substances to improve yield which can be amylopectin (i.e., a polysaccharide from the claimed list; Deisenroth, page 83, line 42); and powders such as silica gel (i.e., SiO2 from the claimed list; Deisenroth, page 88, line 40).
Deisenroth does not teach yucca extract, but does teach the use of biochemical pesticides (Deisenroth, claim 7, L6) which are defined as extracts from biological sources that provide crop protection such as stimulating plant growth (Deisenroth, page 25, lines 1-21). Belcher teaches a biochar for promoting growth for agricultural use (Belcher, claim 9), which is beneficial for fuller plants and increases in plant yield (i.e., a plant biological strengthener which improves crop yields; Belchar, page 2, paragraph 0011) and comprises a microorganism, which can be Glomus intraradices (i.e., a suitable vesicular arbuscular mycorrhizal fungi from the claimed list; Belcher, claim 2), and other nutrients (Belchar, page 2, paragraph 0010), and can comprise yucca extract to improve efficiency (Belchar, page 10, paragraph 0110).
Deisenroth and Belchar are considered to be analogous to the claimed invention, because all are in the same field of fungi treatments for improving plant growth. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Deisenroth to include yucca extract as taught by Belchar, because Deisenroth teaches extracts can come from other biological sources that stimulate plant growth (Deisenroth, page 25, lines 1-21) and Belchar teaches yucca extract improves efficiency (Belchar, page 10, paragraph 0110) of a plant growth promoter (Belchar, page 2, paragraph 0011).
Regarding claim 3, Deisenroth and Belchar together teach all the elements of the current invention as applied to claim 1. As above, Deisenroth teaches biochemical pesticides which can be humates (Deisenroth, claim 7, L6), defined as humic and fulvic acid extracts (Deisenroth, page 70, line 21), and Ascophyllum nodosum (i.e., a seaweed extract as defined by claim 17; Deisenroth, claim 7, L6); and growth regulators which can be indole-3-acetic acid (i.e., a naturally occurring growth hormone for root growth as evidenced by MP Biomedical; Deisenroth, claim 7, M). Deisenroth does not describe any specific weight percentages of these compounds, but teaches the mixtures comprise the active compounds in synergistically effective amounts (Deisenroth, page 38, line 10) and compound ratios are chosen to produce a synergistic effect (Deisenroth, page 91, lines 38-39). Therefore, it would have been prima facie obvious to one of ordinary skill in the art to optimize the amounts of each compound in order to produce a synergistic effect to improve plant growth regulating activity (Deisenroth, page 25, lines 37-38). Deisenroth does not teach yucca extract, but does teach the use of biochemical pesticides (Deisenroth, claim 7, L6) which are defined as extracts from biological sources that provide crop protection such as stimulating plant growth (Deisenroth, page 25, lines 1-21). Belcher teaches yucca extract to improve efficiency (Belchar, page 10, paragraph 0110). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Deisenroth to include yucca extract as taught by Belchar, because Belchar teaches yucca extract improves efficiency (Belchar, page 10, paragraph 0110) of a plant growth promoter (Belchar, page 2, paragraph 0011) and to have used the yucca extract in a synergistic amount as taught by Deisenroth, because Deisenroth teaches synergistic mixtures to have improved plant growth regulating activity (Deisenroth, page 25, lines 37-38).
Regarding claim 4, Deisenroth and Belchar together teach all the elements of the current invention as applied to claim 1. Deisenroth teaches stabilizers which can be maltodextrin (i.e., an oligosaccharide from the list of claim 1) in 0.1-80% (Deisenroth, page 87, lines 32-37), which encompasses the claimed amount of 45%. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP §2144.05(I). Deisenroth further teaches polysaccharides (Deisenroth, page 87, 11) and silica gel (i.e., SiO2 from the claimed list; Deisenroth, page 88, line 40), but does not specify amounts of the compounds. Deisenroth does, however, teach the mixtures comprise the active compounds in synergistically effective amounts (Deisenroth, page 38, line 10) and compound ratios are chosen to produce a synergistic effect (Deisenroth, page 91, lines 38-39). Therefore, it would have been prima facie obvious to one of ordinary skill in the art to optimize the amounts of each compound in order to produce a synergistic effect to improve plant growth regulating activity (Deisenroth, page 25, lines 37-38).
Regarding claim 5, Deisenroth and Belchar together teach all the elements of the current invention as applied to claim 1. Deisenroth does not teach a specific particle size. Belchar, however, teaches particles for agricultural use can be sieved into various sizes, including 149 microns (Belchar, page 6, paragraph 0076, table 1), which lies within the claimed range. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Deisenroth to include a particles of a size taught by Belchar to be suitable for agricultural use (Belchar, page 6, paragraph 0076, table 1).
Regarding claim 6, Deisenroth and Belchar together teach all the elements of the current invention as applied to claim 1. Deisenroth does not teach a specific pH of the composition, but does refer to a pH value of 10.7 as high (Deisenroth, page 100, line 10), suggesting a preferred pH is lower than 10.7. Belcher teaches certain pH values to enhance performance of the biochar for certain end uses (Belcher, page 4, paragraphs 0063-0064) and teaches the pH associated with corn plants to be a pH of 8 (Belcher, figure 11), which lies within the claimed range. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Deisenroth to include a pH specific to the intended crop, because Belchar teaches the pH should be suitable for creating conditions suitable for plant growth (Belchar, page 4, paragraph 0064).
Regarding claim 13, Deisenroth and Belchar together teach all the elements of the current invention as applied to claim 4. Deisenroth does not teach a specific particle size. Belchar, however, teaches particles for agricultural use can be sieved into various sizes, including 149 microns (Belchar, page 6, paragraph 0076, table 1), which lies within the claimed range. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Deisenroth to include a particles of a size taught by Belchar to be suitable for agricultural use (Belchar, page 6, paragraph 0076, table 1).
Claims 2 and 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Deisenroth (WO 2014056780 A1) and Belcher (US 20170334797 A1) as applied to claims 1, 3-6, and 13, further in view of Devisetty (US 20180022660 A1). The references were cited previously by the Examiner.
Regarding claim 2, Deisenroth and Belchar together teach all the elements of the current invention as applied to claim 1. Deisenroth and Belchar both teach the presence of Glomus intraradices (i.e. an arbuscular vesicle mycorrhizal fungi spore according to claim 1; Deisenroth, claim 7, L5; Belcher, claim 2), but do not specify a weight percent. Devisetty teaches a mycorrhizal wettable powder formulation for improving plant growth (Devisetty, abstract) and root proliferation (Devisetty, page 1, paragraph 0003) and teaches the mycorrhiza can be an arbuscular mycorrhiza (Devisetty, page 1, paragraph 0008) in 0.4% (Devisetty, page 2, example 1), which lies within the claimed range.
Deisenroth, Belchar, and Devisetty are considered to be analogous to the claimed invention, because all are in the same field of fungi treatments for improving plant growth. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Deisenroth and Belchar to include the mycorrhiza fungi in the specific amount taught by Devisetty to be preferred (Devisetty, page 2, paragraph 0026), because Deisenroth teaches the mixtures comprise an amount of substances to improve raw material production (Deisenroth, page 38, line 10), while Devisetty teaches a composition with the claimed amount to have improved efficacy (Devisetty, page 3, table 3) and spore viability (Devisetty, page 3, table 4).
Regarding claim 11, Deisenroth, Belchar, and Devisetty together teach all the elements of the current invention as applied to claim 2. As above, Deisenroth teaches biochemical pesticides which can be humates (Deisenroth, claim 7, L6), defined as humic and fulvic acid extracts (Deisenroth, page 70, line 21), and Ascophyllum nodosum (i.e., a seaweed extract as defined by claim 17; Deisenroth, claim 7, L6); and growth regulators which can be indole-3-acetic acid (i.e., a naturally occurring growth hormone for root growth as evidenced by MP Biomedical; Deisenroth, claim 7, M). Deisenroth does not describe any specific weight percentages of these compounds, but teaches the mixtures comprise the active compounds in synergistically effective amounts (Deisenroth, page 38, line 10) and compound ratios are chosen to produce a synergistic effect (Deisenroth, page 91, lines 38-39). Therefore, it would have been prima facie obvious to one of ordinary skill in the art to optimize the amounts of each compound in order to produce a synergistic effect to improve plant growth regulating activity (Deisenroth, page 25, lines 37-38). Deisenroth does not teach yucca extract, but does teach the use of biochemical pesticides (Deisenroth, claim 7, L6) which are defined as extracts from biological sources that provide crop protection such as stimulating plant growth (Deisenroth, page 25, lines 1-21). Belcher teaches yucca extract to improve efficiency (Belchar, page 10, paragraph 0110). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Deisenroth to include yucca extract as taught by Belchar, because Belchar teaches yucca extract improves efficiency (Belchar, page 10, paragraph 0110) of a plant growth promoter (Belchar, page 2, paragraph 0011) and to have used the yucca extract in a synergistic amount as taught by Deisenroth, because Deisenroth teaches synergistic mixtures to have improved plant growth regulating activity (Deisenroth, page 25, lines 37-38).
Regarding claim 12, Deisenroth, Belchar, and Devisetty together teach all the elements of the current invention as applied to claim 2. As above, Belchar teaches particles for agricultural use can be sieved into various sizes, including 149 microns (Belchar, page 6, paragraph 0076, table 1), which lies within the claimed range. Devisetty also teaches processing of mycorrhizae with a 149 micron sieve to achieve a desirable powder size (Devisetty, page 2, paragraph 0044). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Deisenroth to include a particles of a size taught by Belchar and Devisetty to be suitable for agricultural use (Belchar, page 6, paragraph 0076, table 1; Devisetty, page 2, paragraph 0044).
New Claim Rejections - 35 USC § 103
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Deisenroth (WO 2014056780 A1) and Belcher (US 20170334797 A1) as applied to claims 1, 3-6, and 13, further in view of Booysen (US 20150272132 A1).
Regarding claim 17, Deisenroth and Belchar together teach all the elements of the current invention as applied to claim 1. As above, Deisenroth teaches a composition which comprises biochemical pesticides which can be and Ascophyllum nodosum (Deisenroth, claim 7, L6). Deisenroth further teaches herbicides such as 2,4-D (Deisenroth, page 113, line 20). As above, Belchar teaches yucca extract improves efficiency (Belchar, page 10, paragraph 0110) of a plant growth promoter (Belchar, page 2, paragraph 0011), but does not specify a strain of yucca extract. Booysen teaches a pesticide preferably comprising Ascophyllum nodosum (Booysen, page 3, paragraph 0039) and Yucca schidigera (Booysen, page 4, paragraph 0041).
Deisenroth, Belchar, and Booysen are considered to be analogous to the claimed invention, because all are in the same field of fungi treatments for improving plant growth. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the teachings of Deisenroth and Belchar to have included the yucca extract taught by Booysen to be preferred, because Belchar teaches yucca extract is added as a surfactant (Belchar, page 10, paragraph 0110), while Booysen teaches the Yucca schidigera extract is preferable as a surfactant due to high levels of steroidal saponins (Booysen, page 4, paragraph 0041).
Conclusion
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.
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/C.P.J./Examiner, Art Unit 1613
/JENNIFER A BERRIOS/ Primary Examiner, Art Unit 1613