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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 01/30/2026 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 02/03/2026 has been considered by the examiner.
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 Hoobler et al. (US Patent Publication No. 2009/0186768).
In regard to claim 1, Hoobler et al. disclose a formulation [pg. 4, table 3, formulation7] comprising:
a tackifier (e.g. the polysaccharide-based gum: xanthan gum) [0051];
a cutting oil (e.g. glycerin) [0051]; and
an aqueous solution (e.g. formulation in Table 3 contain 10-60 percent weight/weight water) comprising biostimulant, wherein the biostimulant comprises bacillus subtilis [0051]. While Hoobler et al. do not explicitly teach the formulation as useful as a coating for hygroscopic substrates, this statement in the claim preamble merely states the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations or any structural difference. Therefore the preamble is not considered a limitation and is of no significance to claim construction [MPEP2111.02]. Furthermore, the composition disclosed by Hoobler is fully capable of use as a coating for hygroscopic substances.
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 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over Tie (CN-107509570-A) in view of Marubashi et al. (US Patent Publication No. 2004/0086533 A1).
In regard to claim 1, Tie teaches a biofertilizer composition [para. 0022] comprising:
a tackifier (e.g. starch) [0022];
a cutting oil (e.g. glycerin) [0022]; and
an aqueous solution comprising biostimulant, wherein the biostimulant comprises bacillus licheniformus (e.g. Bacillus licheniformis, with the balance being water) [0022]. While Tie does not explicitly teach the biofertilizer composition as useful as a coating for hygroscopic substrates, this statement in the claim preamble merely states the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations or any structural difference. Therefore the preamble is not considered a limitation and is of no significance to claim construction [MPEP2111.02]. Furthermore, the composition disclosed by Tie is fully capable of use as a coating for hygroscopic substances.
Tie discloses soluble starch [0022] but does not explicitly disclose a component selected from the group consisting of corn syrup, sugars, polysaccharide-based gums, molasses, and combinations thereof.
Marubashi et al. is directed to a method of utilizing live Bacillus subtilis cells as an active ingredient [0011]. The Bacillus subtilis may be cultured using a medium containing a carbon source. The “carbon source may be those Bacillus subtilis can utilize, such as glucose, fructose, sucrose, starch, and molasses” [0047]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to perform simple substitution of the Bacillus’ carbon source disclosed by Tie (e.g. soluble starch) for another (e.g. sugar or molasses) as disclosed by Marubashi. One of ordinary skill in the art would have been motivated to substitute the art-recognized and obvious equivalent. Such a substitution would have been a predictable variation that was within the skill of those in the art, which would have yielded predictable results, and thus would have been obvious to one of ordinary skill in the art.
Component
Minimum (%)
Maximum (%)
wood ash
10
20
starch (tackifier)
15
25
diatomaceous earth
5
10
humic acid
10
20
Bacillus subtilis
5
10
Bacillus licheniformus (biostimulant)
5
10
glycerin (cutting oil)
2
5
balance being water
up to 48%
In regard to claims 2-4, Tie teaches the composition of Claim 1 where the aqueous solution comprising biostimulant comprises 10% to 53% by weight of the total composition [0022] when calculated at the endpoints 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. 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) [MPEP 2144.05].
Response to Arguments
Applicant’s arguments, filed 01/30/2026, 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. A new ground of rejection is presented above based on the teachings of Tie and Marubashi in view of the simple substitution of Tie’s soluble starch component for Marubashi’s sugar component. Furthermore, Applicant’s expressed recognition of the art-recognized equivalent is present in Specification Paragraph [0014] describing starches and sugars are suitable tackifier materials.
Conclusion
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 February 12, 2026