DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
Any claim that only contains subject matter that is fully supported in compliance with the statutory requirements of pre-AIA 35 U.S.C. 112, first paragraph, by the parent application of a CIP will have the effective filing date of the parent application. On the other hand, any claim that contains a limitation that is only supported as required by pre-AIA 35 U.S.C. 112, first paragraph, by the disclosure of the CIP application will have the effective filing date of the CIP application. [See MPEP 2133.01].
This application repeats a substantial portion of prior Application No. 16/382,591 and 16/382,537, filed 04/12/2019, and adds disclosure not presented in the prior application. Because this application names the inventor or at least one joint inventor named in the prior application, it constitutes a continuation-in-part of the prior application. 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 pre-AIA 35 U.S.C. 112, except for the best mode requirement. 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(s), fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application: for example, the disclosure of the prior-filed application(s) does not provide support for the composition of claim 13 – the effective filing date for claim 13 is 02/09/2022.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 14-19 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The specification as originally filed does not satisfied the written description requirements of 35 U.S.C. § 112 with regard to the subject matter of claims 14-19.
The specification as originally filed does not describe the composition(s) of claims 14-19. The newly added (09/10/2025) claim(s) requires selection and combination of elements from a list of more than 80 sources of nitrogen. Selection of more than a single element listed represents one of over 3,000 possible combinations. Such necessary picking and choosing to arrive at the claimed invention does not indicate it was described. The combinations thereof language in the Specification suggests the possibility of combining two or more of the listed materials but still fails to highlight any preference for how many and which nitrogen sources to combine. Such “laundry list” disclosures do not provide adequate specificity to constitute written description support for claims 14-19. The specification as originally filed does not provide “blaze marks” that point to the claimed combination over any of the many others which could also be made. The claims recite components which are plucked from disparate laundry lists recited in the Specification and the disclosure does not adequately support the claimed combination. [See MPEP 2163].
Claim Rejections - 35 USC § 102
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 (i.e., changing from AIA to pre-AIA ) 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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lynch (US Patent Publication 2010/0248966 – PTO-892 06/12/2025 cite C).
In regard to claim 1, Lynch teaches a composition comprising:
a gas-evolving composition comprising an acid and an inorganic bicarbonate [0007], exemplified by citric acid and potassium bicarbonate [Example 2A, Example 3] and nutrient, wherein the nutrient is a nitrogen source and includes sulfur-coated urea [0022].
Claim 2 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wehling (AU 6601290).
In regard to claim 2, Wehling teaches a composition (e.g. tablet) comprising:
potassium bicarbonate, citric acid and a nutrient, wherein the nutrient is a phosphorous source and includes dicalcium phosphate [pg. 24, Example 7, lines 26-29].
Claim 3 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Murch (EP 0726717)
In regard to claim 3, Murch teaches a composition (e.g. Example III), comprising:
potassium bicarbonate, citric acid and a nutrient, wherein the nutrient is a potassium source (e.g. potassium hydroxide) [pg. 10, lines 5-15].
Claim 4 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Unannounced (CN 108892985)
In regard to claim 4, Unannounced teaches a composition comprising:
potassium bicarbonate, citric acid and a nutrient, wherein the nutrient is a secondary nutrient source and includes chitosan [para. 0004].
Claim 5 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nurnberg (US Patent No. 6,565,881 – IDS 02/09/2022 cite no. 6).
In regard to claim 5, Nurnberg teaches a composition (e.g. effervescent tablet) [clm. 1] comprising:
a bicarbonate acid mixture comprising potassium bicarbonate and citric acid (clm. 11) and a nutrient, wherein the nutrient is a beneficial substance and includes at least one of a hydrolysate (e.g. protein hydrolyzates of vegetable and/or animal origin) [clm. 3].
Claims 6-7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Patil (IN-201721021523-A).
In regard to claims 6-7, Patil teaches a composition (e.g. effervescent tablet) [pg. 7], comprising:
an alkali (e.g. potassium bicarbonate) [pg. 7, b], an acid [pg. 7, a], a biostimulant including gibberellic acid [pg. 14, g, active ingredients, plant growth regulators], further comprising humate [pg. 7, g, active ingredients, fertilizer].
Claim 12 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Yang (CN 101328087).
In regard to claim 12, Yang discloses a composition comprising:
potassium bicarbonate in an amount of about 20.6% by mass, citric acid, and zinc sulfate [para. 0014].
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 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Murch et al. (US Patent No. 6,345,634 B1).
In regard to claims 8-9, Murch et al. discloses a composition comprising:
potassium bicarbonate, citric acid, and ethyl alcohol [col. 12, lines 25-40, example III]. Murch does not explicitly disclose a pesticide including one of those of the claimed group. However, the composition disclosed by Murch includes oleic acid to provide potassium oleate. Murch generally describes from about 0.1% to about 15% by weight of a member selected from the group consisting of sodium or potassium oleate (preferred) or from about 0.5% to 10% by weight of sodium or potassium laurate [col. 3, lines 58-61]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the potassium oleate component for potassium laurate. One of ordinary skill in the art would have been motivated to perform simple substitution of one know element for another to obtain predictable results.
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Hurst et al. (US 20180084776 A1– PTO-892 06/12/2025 cite A).
In regard to claims 10-11, Hurst et al. claims a granular composition, comprising:
a CO2-generating agent comprising citric acid […] potassium bicarbonate […] or any combination of two [0208] and a pesticide including the fungi Gliocladium [0042] in combination of Bacillus or Paenibacillus.
Hurst et al. disclose the composition of claim 10, wherein the composition comprises bacteria selected from Bacillus [clm. 4]. The reference does not explicitly disclose the Bacillus species (e.g. thuringiensis or subtilis). With regard to the claimed bacterial strains, at the species level, microbial strains share a high degree of genetic similarity, typically exceeding 95% average nucleotide identity (ANI), meaning their genomes are very similar with only minor variations differentiating them within the same species; this is a commonly used threshold to define different species from one another, where strains below this level would be considered distinct species. Thus, the close biological similarities between the claimed species strain and the general species disclosed results in the strong expectation that the claimed subject matter will function in an equivalent manner to what is disclosed by the prior art references.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Selby-Pham et al. (US Patent Publication No. 2021/0230082).
In regard to 13, Selby-Pham et al. disclose a composition (e.g. plant nutrient composition) [0067] potassium bicarbonate (e.g. carbon dioxide agent) in an amount of about 5% w/w to about 50% w/w based on the total weight of the tablet [0068-0069], citric acid [0071] and boric acid (e.g. additives including boric acid antimicrobial agent) [0046]. The ranges disclosed by Selby-Pham are considered to overlap the claimed ranges (e.g. a value of “about” 50% includes values of 50.1% and above) and in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the proportions of bicarbonate component are so close that prima facie one skilled in the art would have expected them to have the same properties.
Response to Arguments
Applicant argues (pg. 8, 2nd to las para.) claims 14-17 recite components in the claims as originally filed which provide blaze marks pointing to the claimed combination over any of the many others which could be made. This argument is not persuasive. The specification as originally filed does not describe the composition(s) of claims 14-19. The newly added (09/10/2025) claim(s) requires selection and combination of elements from a list of more than 80 sources of nitrogen. Selection of more than a single element listed represents one of over 3,000 possible combinations. Such necessary picking and choosing to arrive at the claimed invention does not indicate it was described. The combinations thereof language in the Specification suggests the possibility of combining two or more of the listed materials but still fails to highlight any preference for how many and which nitrogen sources to combine. Such “laundry list” disclosures do not provide adequate specificity to constitute written description support for claims 14-19. The specification as originally filed does not provide “blaze marks” that point to the claimed combination over any of the many others which could also be made. The claims recite components which are plucked from disparate laundry lists recited in the Specification and the disclosure does not adequately support the claimed combination. [See MPEP 2163].
Applicant argues (pgs. 9-10), with regard to claims 10-11, the prior art’s disclosure of Paenibacillus and Bacillus does not make obvious the claimed component Bacillus lentimorbus and Bacillus mycoides because they are unique relative to other Bacillus. Hurst et al. disclose the composition of claim 10, wherein the composition comprises bacteria selected from Bacillus [clm. 4]. The reference does not explicitly disclose the Bacillus species (e.g. thuringiensis or subtilis). With regard to the claimed bacterial strains, at the species level, microbial strains share a high degree of genetic similarity, typically exceeding 95% average nucleotide identity (ANI), meaning their genomes are very similar with only minor variations differentiating them within the same species; this is a commonly used threshold to define different species from one another, where strains below this level would be considered distinct species. Thus, the close biological similarities between the claimed species strain and the general species disclosed results in the strong expectation that the claimed subject matter will function in an equivalent manner to what is disclosed by the prior art references. Applicant lists almost 200 distinct Bacillus species/subspecies/strains in original claim 10 and Paragraph [87]. There is no criticality of the claimed Bacillus species and Applicant’s arguments directed to their use as an agriculturally acceptable pesticide do not differentiate from Hurt’s teachings of Bacillus and Paenibacillus as preferred pesticidal components in the prior art’s agricultural composition [paras. 0039-0041].
Applicant’s arguments (pgs. 10-11) with respect to claim 13 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 January 14, 2026