DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendments
Status of Claims
The amendment, filed on 27 April 2026, is acknowledged.
Claims 1-2, 5, 7-14, 17-21, 26-27, and 31-32 have been amended.
Claims 16 and 25 have been cancelled.
New claim 36 has been added.
Claims 1-2, 5-15, 17-24, 26-27, 31-32, and 36 are pending in the instant application.
Newly submitted claim 36 is directed to a species that is independent or distinct from the invention originally claimed for the following reasons: New claim 36 recites the biostimulant to be selected from the group consisting of “a nutrient, a micronutrient, a lignosulphonate, an organic acid, a carotenoid, a peptide, a protein, and a protease”. In the response to restriction/election submitted on 19 September 2025, Applicant elected the amino acid lysine as the biostimulant without traverse. As disclosed in instant spec. para. [0088], amino acids are a distinct subgenus of biostimulants and do not fall within any of the subgenera recited in new claim 36. Therefore, newly submitted claim 36 is directed to biostimulant species that are distinct from the invention as originally elected.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 36 is withdrawn from consideration as being directed to a non-elected species. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claims 1-2, 5-15, 17-24, 26-27, and 31-32 are under consideration in the instant Office Action, to the extent of the following previously elected species:
the specific Trichoderma isolates are T. parareesei strain T6 and T. virens strain T59;
the specific stabilizer is mannitol;
the specific solid carrier is kaolin;
the specific nutrient is boron;
the specific biostimulant is the amino acid lysine; and
the specific spore coating is cellulose.
Rejections Withdrawn
Rejections pursuant to 35 U.S.C. § 112
The rejections of claims 11, 13, 17-24, and 31-32 under 35 U.S.C. § 112 are withdrawn in view of Applicant’s amendments to the claims. The rejection of claim 25 under 35 U.S.C. § 112 has been rendered moot in view of Applicant’s cancellation of the claim.
Rejections pursuant to 35 U.S.C. § 103
The rejections of claims 1-2, 5-15, 17-24, 26-27, and 31-32 under 35 U.S.C. § 103 are withdrawn in view of Applicant’s amendments to the claims and in favor of the new grounds of rejection below. The rejection of claims 16 and 25 under 35 U.S.C. § 103 have been rendered moot in view of Applicant’s cancellation of the claims.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 27 April 2026, was filed after the mailing date of the Non-Final Office Action on 28 October 2025. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the Examiner.
Maintained Objections
Claims
Claims 11-14 are objected to because of the following informalities:
Claims 11-14 recite “wherein a concentration” in lines 1-2 of each claim. The article “a” should be replaced with “the”, so the resulting phrases recite “wherein the concentration” (bold added for emphasis).
Response to Remarks
The Applicant’s remarks, filed on 27 April 2026, regarding antecedent basis in claims 11-14 are acknowledged. Applicant appears to have misinterpreted the objection to claims 11-14 as a rejection under 35 U.S.C. § 112(b) for lacking antecedent basis, as evidenced by citing MPEP § 2173.05(e), which is directed to specific topics related to issues under 35 U.S.C. § 112(b).
The objection to claims 11-14 was for a minor informality and intended to improve clarity – "a concentration” leaves each claim open to the interpretation that a concentration outside the limitations of claims 11-14 may be in the recited invention. Amending the claims to recite “the concentration” improves clarity by making clear the range limitations in claims 11-14 are the intended concentrations in the claimed invention.
New Grounds of Rejection
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.
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 1-2, 5-7, 11-15, 17-19, 22-24, 26-27, and 31-32 are rejected under 35 U.S.C. § 103 as being unpatentable over Lutfiyya et al. (U.S. Patent No. 11,560,342 B2, priority to 27 December 2018, hereafter referred to as Lutfiyya) in view of Morán-Diez et al. (Curr. Genet. 2010, 56, 63., provided by Applicant in IDS filed on 19 September 2025, hereafter referred to as Morán-Diez), Rubio et al. (Appl. Environ. Microbiol. 2014, 80, (6), 1864., provided by Applicant in IDS filed on 19 September 2025, hereafter referred to as Rubio), Michailidis (European Patent Application Publication No. EP 2537823 A1, published on 26 December 2012, provided by Applicant in IDS filed on 19 September 2025), and Kleinman et al. (Amer. J. Hosp. Pharm. 1973, 30, 1054., hereafter referred to as Kleinman).
Lutfiyya teaches microbial compositions that may be applied to plants, plant parts, or plant seeds to improve plant yields or other beneficial plant traits (Abstract). The inoculant compositions comprise one or more strains of the bacteria Bacillus megaterium alongside additional microorganisms, one or more stabilizing compounds, and other components in an agriculturally acceptable carrier (column 1, lines 46-67) and may be applied to a plant, plant part, or “plant growth medium”, e.g. soil (column 3, lines 42-58). Examples of acceptable additional microorganisms are taught to be fungal extracts, including strains from the Trichoderma genus, species virens, due to their ability to act as biopesticides and be “agriculturally beneficial” (column 22, lines 56-64, column 33, line 62 - column 34, line 3, and column 96, lines 52-60). The fungal microorgansims are present as extracts of growth media comprising spores of the fungal strain, which is interpreted as equivalent to the isolates, spores, and/or isolates comprising mycelium and/or spores recited in instant claims 1-2, 5-27, and 31-32 (column 5, lines 6-11, column 11, lines 13-14, column 17, lines 34-36, and column 99, lines 3-23). The additional microorganisms are taught to be present in an amount “ranging from about 1x101-1x1012 colony-forming units (cfu) per gram or mL of the composition (column 98, lines 53-64). The additional microorganisms are also taught to comprise “about 0.1 to about 90% (by weight) of the inoculant composition)” (column 99, lines 3-15).
Lutfiyya teaches additional components in the compositions to include one or more liquid carrier(s), which in one embodiment is water (column 13, lines 48-58 and column 14, lines 1-8). The one or more carrier materials is taught to optionally be a solid (column 13, lines 48-58). The one or more solid carriers are taught in some embodiments to be powders and/or granules, such as clays, and in one embodiment may specifically be kaolin, which can also serve as a pigment (column 13, lines 59-67 and column 81, lines 21-24). The compositions are also taught to comprise one or more sugar alcohols, such as mannitol, which can also assist in culturing the one or more microorganisms in the inoculant composition (column 15, lines 50-54 and column 81, lines 45-51), and suitable nutrients, such as the trace mineral boron (column 23, lines 4-19).
The composition of Lutfiyya may be separated into two or more containers “each comprising one or more components of an inoculant composition of the present disclosure” such as the bacterial strains in one container and the agriculturally acceptable carrier in a separate container for “long-term storage” (col. 100, lines 52-58). To prevent decomposition due to oxidation, Lutfiyya teaches that their composition may comprise “one or more oxidation control components”, which may be antioxidants (col. 16, lines 21-34, col. , and col. 100, lines 63-67 and claims 20-21). Finally, Lutfiyya teaches that their composition may comprise biostimulants (column 3, line 33 and column 81, line 52), which are agents that enhance “one or more metabolic and/or physiological processes of a plant or plant part” (column 4, lines 35-40), and in some embodiments may be the amino acid glycine (col 17, lines 22-26).
Guidelines on the obviousness of similar and overlapping ranges, amounts, and proportions are provided in MPEP § 2144.05. With respect to claimed ranges which “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). These guidelines apply to the concentration of colony forming units and the quantity of microorganisms in the composition. In each case, the range recited in the instant application significantly overlaps with the ranges taught by Lutfiyya.
Lutfiyya does not teach the specific Trichoderma strains T. virens T59 and T. parareesei T6 nor the Trichoderma composition to be formulated separately from the biostimulant lysine and combined prior to application. These deficiencies are offset by the teachings of Morán-Diez, Rubio, Michailidis, and Kleinman.
Morán-Diez teaches the impact of the TvDim1 gene of T. virens T59 on plants (Abstract). Most species of Trichoderma are taught to have been “linked to biocontrol and biotechnological applications”, including promoting plant growth and inducing plant defense mechanisms (pg. 63, right column, para. 1). In this study, Morán-Diez teaches that the strain T59 of species T. virens contains the gene TvDim1, which was found to be a stress response-related gene (pg. 67, left column, para. 1 and pg. 71, left column, para. 2). Further investigation of the gene found that the gene can “confer resistance to oxidative stress and…reduce H2O2” (pg. 72, left column, para. 2).
Rubio teaches the beneficial qualities of the species Trichoderma parareesei for plants, including the strain T6 “showing biocontrol potential against fungal and oomycete phytopathogens and enhance hyphal growth in the presence of tomato exudates or plant cell wall polymers in in vitro assays” (Abstract). Trichoderma is taught to be a genus of fungi that contains strains which are agriculturally beneficial due to their ability to act as antagonists against phytopathogenic fungi and oomycetes, which arise from their “production of antibiotics and/or hydrolytic enzymes as well as competition for nutrients” (pg. 1864, left column, para. 1). In particular, T. reesei is taught to be widely used for its beneficial properties and its “descendant”, T. parareesei, is taught to encompass many of the same benefits without requiring sexual reproduction, in addition to showing faster growth on a wider spectrum of carbon sources, producing a high number of propagules, adapting to a variety of light conditions, and displaying stronger antagonistic potential against pathogenic fungi (pg. 1864, left column, para. 2). Following studies on the ability of T. parareesei T6 to inhibit the oomycete Pythium irregulare, the basidiomycete Rhizoctonia solani, and the ascomycete Botrytis cinerea, as well as interactions with tomato plants upon which the fungus was applied, Rubio concluded that T. parareesei T6 has interactions with tomato plants that are “beneficial to both partners and [exert] long-term positive effects on seedlings or adult plants in terms of systemic plant defense against B. cinerea and increased lateral root development and growth promotion under salt stress conditions” (pg. 1864, right column, para. 2 - pg. 1865, left column, para. 1).
Michailidis teaches a method for supplementing plant growth that comprises administration of a composition comprising free amino acids derived from raw materials of plant origins (Abstract). Traditional fertilizers are taught to negatively impact the environment and human health, in part due to the “overuse of nitrogen based fertilizers”, resulting in “the soil [being] incapable of absorbing nutrients” (para. [0002]. Michailidis teaches that these problems can be alleviated by applying amino acids, which “help plants absorb the appropriate and necessary nutrients from the soil” and avoid negatively impacting the environment by utilizing plants, such as maize, wheat, and soya, as the source of the amino acids (para. [0003]).
The composition taught by Michailidis is produced in a method which uses HCl to hydrolyze maize, wheat, and soy plant material, producing free amino acids and no waste, as “all ingredients used in the method are used in their pure form, with no pre-treatment” (para. [0007-0008] and claims 1 and 3). The final composition is in the form of a liquid (para. [0011]) and comprises peptides, sugars, and residues from plant hydrolysis, water, and 16 species of free amino acids, among which are glycine and lysine (para. [0012-0013] and claims 1 and 3). Advantages imparted by the composition, following application to plants or plant growth media, include improved plant uniformity, improved antioxidant effects following plant consumption, improved plant root growth, improved disease and stress resistance, and stimulated metabolic functions (para. [0005]). These advantages are imparted by mixing the composition with other nutrients, phytoprotection products, and “state of the art foliar fertilizers” in “any proportion” (para. [0005] and [0014]).
Kleinman teaches the stability of solutions of essential amino acids (Abstract). Protein hydrolysate solutions have long been known to have useful applications, specifically due to the presence of essential amino acids, and Kleinman sought to develop a stable solution of essential amino acids (pg. 1054, left col., para. 1 - pr. 1055, left col., para. 1). While preparing amino acid solutions, Kleinman found that the amino acid tryptophan decomposed during storage, with conditions varying between 25 °C and 50 °C (pg. 1056, left col., para. 2). In an attempt to mitigate amino acid decomposition, Kleinman added the antioxidant sodium bisulfite to their solutions and found that the solution still exhibited decomposition (pg. 1056, left col., para. 2-7). However, upon storing essential amino acid solutions in amber vials, which protect contents from light, Kleinman found that their solutions maintained stability following room temperature storage for six months (pg. 1057, Discussion). In conclusion, Kleinman recommended that “solutions of essential amino acids be stored in amber vials at room temperature without sodium bisulfite” (pg. 1057, right col., para. 2).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, in view of the teachings of Morán-Diez and Rubio to use the specific Trichoderma strains T. virens T59 and T. parareesei T6 in the Bacillus megaterium composition taught by Lutfiyya because combining prior art elements to impart known benefits according to known methods yields predictable results. Lutfiyya teaches microbial compositions that may be applied to plants, which may comprise microorganisms including strains from the Trichoderma genus, one or more liquid carrier(s) which may be water, one or more solid carrier(s) which may be kaolin, one or more sugar alcohol(s) which may be mannitol, and suitable nutrients, such as the trace mineral boron. Lutfiyya further teaches that their composition may be separated into two or more containers comprising different components for long-term storage. In view of the teachings of Morán-Diez, the ordinary artisan would be motivated to use the specific Trichoderma strains T. virens T59 because Morán-Diez teaches said strain to contain the gene TvDim1, which can confer resistance to oxidative stress and reduce H2O2 presence. One of ordinary skill would desire a composition intended to protect a plant following application to comprise components that are resistant to stress, such as H2O2, and could provide additional protection to the plant substrate.
The person of ordinary skill would further be motivated, in view of the teachings of Rubio, to use the specific strain T. parareesei T6 in their composition because Rubio teaches the strain to inhibit pathogenic fungi and to have beneficial interactions with tomato plants following application, including improved plant defense, increased lateral root development, and growth promotion under stress. The ordinary artisan would desire these properties to be applied to the plants which their composition is intended to protect.
In view of the teachings of Michailidis, the ordinary artisan would be motivated to produce a composition comprising the amino acid mixture containing lysine, because Michailidis teaches that free amino acids provide many benefits to plants, the environment, and humans that ingest the plants. One of ordinary skill would desire the taught benefits in a composition that is intended to be applied to plants, plant parts, or soil. A person of ordinary skill would further be motivated to store the amino acid solution separately from the composition comprising the Trichoderma isolates in view of the teachings of Kleinman because Kleinman teaches that storage conditions impact the stability of essential amino acid solutions. In particular, Kleinman teaches that the presence of antioxidants can cause decomposition, which Lutfiyya teaches as components of their composition, and that storage of amino acid solutions in amber vials can stabilize the contents for up to six months. The ordinary artisan would desire a composition comprising amino acids that can be produced with no waste as taught by Michailidis, will remain stable until the time of application using the methods taught by Kleinman, and may be mixed with an existing agricultural composition in any proportion to impart benefits as taught by Michailidis. As a result, there is a reasonable expectation of success in arriving at the invention of claims 1-2, 5-7, 11-15, 17-19, 22-24, 26-27, and 31-32 in view of the teachings of Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman.
Claims 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over Lutfiyya (U.S. Patent No. 11,560,342 B2, priority to 27 December 2018) in view of Morán-Diez (Curr. Genet. 2010, 56, 63., provided by Applicant in IDS filed on 19 September 2025), Rubio (Appl. Environ. Microbiol. 2014, 80, (6), 1864., provided by Applicant in IDS filed on 19 September 2025), Michailidis (European Patent Application Publication No. EP 2537823 A1, published on 26 December 2012, provided by Applicant in IDS filed on 19 September 2025), and Kleinman (Amer. J. Hosp. Pharm. 1973, 30, 1054.) as applied to claims 1-2, 5-7, 11-15, 17-19, 22-24, 26-27, and 31-32 above, and further in view of Bhattacharyya et al. (Appl. Environ. Microbio. 1982, 44 (3), 751., hereafter referred to as Bhattacharyya).
Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman teach the above.
Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman do not teach the spores of Trichoderma to be disposed on or within the kaolin particle. This deficiency is offset by the teachings of Bhattacharyya.
Bhattacharyya teaches the use of kaolin powder as a carrier of spores from the Aspergillus genus (Abstract). One species from the Aspergillus genus is taught to be useful for “softening and upgrading barky jute”, but needed a suitable carrier so the fungus could be distributed to farmers for use (pg. 751, left column, para. 1). Kaolin, a nearly chemical inert complex aluminum silicate, is taught to be readily available and inexpensive, and was tested for its suitability as an appropriate carrier for fungi (pg. 751, left column, para. 1-3). Cultures of Aspergillus were incubated with washed and dried kaolin to produce kaolin-culture inoculants, in which the fungus was contained within the kaolin particles (pg. 751, left column, final para. - right column, para. 3). While growth of the fungus slowed over a period of 90 days, the fungus was found to be preserved inside the powdered kaolin and viable over the full period (pg. 751, right column, para. 3). Further, Bhattacharyya taught that the kaolin-culture inoculants were capable of growing the Aspergillus fungus while “suppressing the growth of other organisms” (pg. 751, right column, para. 3). The encapsulated fungus was found to retain its activity regarding barky jute and Bhattacharyya concluded that kaolin could be used as a carrier for other species of fungi and could be a method of preservation (pg. 752, left column, final para. - pg. 753, left column, para. 1).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to modify the invention rendered obvious by the teachings of Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman above with the teachings of Bhattacharyya to dispose Trichoderma spores within kaolin particles because the use of a known technique to improve a similar product in the same way yields predictable results. Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman rendered obvious a microbial composition, which may comprise the Trichoderma strains T. virens T59 and T. parareesei T6, one or more liquid carrier(s) which may be water, one or more solid carrier(s) which may be kaolin, one or more sugar alcohol(s) which may be mannitol, and suitable nutrients, such as the trace mineral boron, that may be applied to plants after combination with a separate composition comprising lysine. In view of the teachings of Bhattacharyya, the ordinary artisan would be motivated to dispose the Trichoderma spores within the kaolin particles because Bhattacharyya teaches the solid particles to be a suitable carrier for fungi and to maintain viability for 90 days following encapsulation. While Lutfiyya teaches the inclusion of kaolin in their composition, they do not teach their interaction with fungal spores. An ordinary artisan would be motivated to dispose the spores within the kaolin particles because they would desire the fungal spores to maintain viability for an extended period of time. As a result, there is a reasonable expectation of success in arriving at the invention of claims 8-10 in view of the teachings of Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman, and further in view of the teachings of Bhattacharyya.
Claims 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Lutfiyya (U.S. Patent No. 11,560,342 B2, priority to 27 December 2018) in view of Morán-Diez (Curr. Genet. 2010, 56, 63., provided by Applicant in IDS filed on 19 September 2025), Rubio (Appl. Environ. Microbiol. 2014, 80, (6), 1864., provided by Applicant in IDS filed on 19 September 2025), Michailidis (European Patent Application Publication No. EP 2537823 A1, published on 26 December 2012, provided by Applicant in IDS filed on 19 September 2025), and Kleinman (Amer. J. Hosp. Pharm. 1973, 30, 1054.) as applied to claims 1-2, 5-7, 11-15, 17-19, 22-24, 26-27, and 31-32 above, and further in view of Harman et al. (U.S. Patent No. 9,090,884 B2, priority to 7 September 2006, hereafter referred to as Harman).
Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman teach the above and particularly relevant to claims 20-21, Lutfiyya teaches the composition to optionally comprise one or more polymers, including celluloses (column 16, lines 46-55) and oligosaccharides as adhesives (column 81, lines 4-8).
Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman do not teach the spores of Trichoderma to have a coating comprising cellulose. This deficiency is offset by the teachings of Harman.
Harman teaches formulations comprising viable microorganisms, methods of producing the formulations, and methods of treating plants and/or plant seeds with the formulations (Abstract). A variety of microorganisms are taught to have been commercially used for agricultural purposes, including strains of Trichoderma being used to protect plants from diseases, but typical methods of preparation involve drying the microorganisms which “have the potential to sensitive cells or spores of microorganisms” (column 1, line 29 - column 2, line 7). One particular strain, T. harzianum strain T22, is taught to be useful in improving potato crop yield and size when formulated on a clay-based medium, but had a reduced shelf life (column 2, lines 26-53). To overcome these issues, Harman teaches the necessity of formulations that maintain viable microorganisms with high activity levels and are “capable of being suspended in water and mixed with other biological agents or chemical pesticides without toxic implications on the microorganism” (column 2, lines 54-65).
The invention of Harman addressed the above issues by encapsulating the microorganisms in a water-soluble encapsulating material and mixing with a water-insoluble, water-absorbent substance to produce a dry, free-flowing powder (column 5, lines 25-40 and claim 1). The water-soluble, encapsulating material is in one embodiment modified celluloses and the insoluble, water-absorbent substance was also cellulose (column 5, line 35, Examples 1-2, and claims 2-3, 10, and 12). The advantages of this method are taught to include lower costs (column 3, lines 53-58), improved microorganism resistance to chemical pesticides, increasing their shelf life, and improving mixing with other pesticides/biological products (column 5, lines 41-56).
It would have been prima facie obvious to one of ordinary skill in the art, prior to the filing of the instant application, in view of the teachings of Harman to surround Trichoderma spores with cellulose in the invention rendered obvious by the teachings of Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman because modifying a known product using a method known in the prior art to impart a known benefit yields predictable results. Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman rendered obvious a microbial composition, which may comprise the Trichoderma strains T. virens T59 and T. parareesei T6, one or more liquid carrier(s) which may be water, one or more solid carrier(s) which may be kaolin, one or more sugar alcohol(s) which may be mannitol, and suitable nutrients, such as the trace mineral boron, that may be applied to plants after combination with a separate composition comprising lysine.
In view of the teachings of Harman, the ordinary artisan would be motivated to configure the composition to encapsulate the spores in cellulose because Harman teaches that such a configuration can maintain microorganism viability for a longer period of time, extending the shelf life, as well increasing their compatibility with other agriculturally active agents. An ordinary artisan would desire improved shelf life and chemical compatibility in a composition that is intended to be sold for agricultural use. As a result, there is a reasonable expectation of success in arriving at the invention of claims 20-21 in view of the teachings of Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman, and further in view of the teachings of Harman.
Response to Arguments
The Applicant’s arguments, filed on 27 April 2026, have been fully considered but are not persuasive.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
From the final para. of pg. 8 to the penultimate para. of pg. 9, Applicant argues that the Lutfiyya, Morán-Diez, and Rubio references do not teach the biostimulant lysine to be separate from Trichoderma isolates nor the benefits of separating the biostimulant. The limitation regarding the separation of the biostimulant was not present in instant claim 1 at the time the non-final Office Action was mailed and the Lutfiyya, Morán-Diez, and Rubio references were not argued to motivate separation of the bacterial isolates from the biostimulant. The Michailidis and Kleinman references were used to motivate the separation (vide supra), in brief to lend stability to the amino acid solution during storage prior to application to plants. As a result, this argument is found unpersuasive in view of the new grounds of rejection above.
In the para. that spans the bottom of pg. 9 and top of pg. 10, Applicant argues that the Lutfiyya, Morán-Diez, and Rubio references are silent regarding a formulation that comprises two different Trichoderma isolates. The Non-Final Office Action mailed on 28 October 2025, did not argue that any one reference taught such a formulation but instead argued that such a formulation would be prima facie obvious in view of the combined teachings of the above references. Further, the Examiner disagrees that the Lutfiyya reference does not teach a formulation comprising two different Trichoderma isolates - Lutfiyya teaches that their compositions comprise one or more strains of the bacteria Bacillus megaterium alongside additional microorganisms (column 1, lines 46-67) which may be strains from the Trichoderma genus, including the species T. asperellum, T. atroviride, T. fertile, T. gamsii, T. hamatum, T. harzianum, T. polysporum, T. reesi, T. stromaticum, T. virens, and T. viridae (col. 22, line 56-64), and may be isolates (column 5, lines 6-11, column 11, lines 13-14, column 17, lines 34-36, and column 99, lines 3-23). As a result, Applicant’s argument is not found to be persuasive.
In the final para. of pg. 10, Applicant argues that the Bhattachayya reference does not teach a formulation comprising a T. parareesei isolate, a T. virens isolate, and a biostimulant, wherein the biostimulant is separated from the Trichoderma isolates. The new grounds of rejection above argue that such a composition would be prima facie obvious in view of the combined teachings of Lutfiyya, Morán-Diez, Rubio, Michailidis, and Kleinman. In brief, Lutfiyya teaches microbial compositions that may be applied to plants, which may comprise microorganisms including strains from the Trichoderma genus, one or more liquid carrier(s) which may be water, one or more solid carrier(s) which may be kaolin, one or more sugar alcohol(s) which may be mannitol, and suitable nutrients, such as the trace mineral boron. The teachings of Morán-Diez and Rubio motivate the selection of the strains T. virens T59 and T. parareesei T6, respectively, to impart the taught benefits. The teachings of Michailidis and Kleinman motivate the use of amino acids, including lysine to impart agricultural benefits and its separate storage to maintain stability. The Bhattachayya reference was not used to motivate the above composition and the argument is therefore found unpersuasive.
In the penultimate para. of pg. 11, Applicant argues that the Michailidis reference does not teach the presence of Trichoderma isolates nor a formulation comprising two different Trichoderma isolates which are separated from a biostimulant. As stated above, the composition comprising the two elected Trichoderma isolates has been rendered obvious above. Further, the Lutfiyya reference teaches that their composition may be separated into two or more containers comprising different components for long-term storage (col. 100, lines 52-58) and the Kleinman reference motivates storage of the biostimulant amino acid composition in an amber vial to lend stability during storage. As a result, Applicant’s argument is not found to be persuasive.
In the final para. of pg. 11, Applicant argues that there is no motivation to modify the invention of Lutfiyya to separate a biostimulant from Trichoderma isolates and that none of the Lutfiyya, Morán-Diez, Rubio, or Michailidis references recognize the function for separating the biostimulant disclosed in the instant application. Regarding the first argument, the Examiner disagrees and directs the Applicant to the new grounds of rejection of claims 1-2, 5-7, 11-15, 17-19, 22-24, 26-27, and 31-32 under 35 U.S.C. § 103 above. Particularly relevant is col. 100, lines 52-57, where Lutfiyya teaches that their composition may be separated into two or more containers comprising different components of the composition for long-term storage.
Regarding the second argument directed to the recognition of the function of separating the biostimulant from the Trichoderma isolates, “[p]rima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present but not recognized in the prior art”. See MPEP § 2145.II. The combination of a composition comprising Trichoderma isolates and a composition comprising the amino acid lysine prior to application was rendered obvious above and “[t]he fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In addition, “[i]t is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” See MPEP § 2144.IV. and, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006).
Finally, in the final para. of pg. 12 Applicant argues that the Harman reference does not teach a formulation comprising a T. parareesei isolate, a T. virens isolate, and a biostimulant, wherein the biostimulant is separated from the Trichoderma isolates. The Harman reference was not stated to teach such a formulation in the Non-Final Office Action mailed on 28 October 2025, but instead the Office Action argued that such a formulation would be prima facie obvious in view of the combined teachings of the above references. The argument is considered moot in view of the new grounds of rejection above.
Conclusion
No claims are 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.
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/S.J.S./
Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619
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