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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 21-22, 29-31 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 21 recites “applied to said at least one seed”; however independent claim 20 has been amended to recite “spraying said at least one microbe and the macronutrient to at least one seed.” Applicant amended the independent claim to spraying the macronutrient and dependent claim 21 is directed to the broader embodiment of applying. Note the term “applying” includes other processes than spraying (the narrower embodiment of applying).
Claim 29 recites “applying a liquid composition comprising macro nutrient” ; however independent claim 20 has been amended to recite “spraying said at least one microbe and the macronutrient to at least one seed.” Applicant amended the independent claim to spraying the macronutrient and dependent claim 29 is directed to the broader embodiment of applying. Note the term “applying” includes other processes than spraying (the narrower embodiment of applying).
Claim 30 recites “said at least one microbe is applied to the seed before the macro nutrient and the phosphorus by soaking the seed with an aqueous solution comprising the microbe.” The independent claim 20 has been amended to recite “spraying said at least one microbe and the macronutrient to at least one seed.” Soaking is a broader embodiment of spraying. Although spraying may soak the seed, soaking may be accomplished by various methods other than spraying which is broader.
Dependent claims are included since they do not resolve the deficiency of the base claim.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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(s) 20-21, 23-25 and 28-31 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lopez-Cervantes et al.
Lopez-Cervantes et al (US Publication 2013/0255338) disclose of compositions that enhance crop production. Lopez-Cervantes et al further disclose of applying the composition to seeds. (See abstract and 112). The microbial inoculant composition is taught to be applied by spraying. (See 107). Lopez-Cervantes et al further disclose the composition to contain lactic acid bacteria and nitrogen fixing bacteria. (See abstract and claims). Lopez-Cervantes et al further disclose the composition to comprise amino acids, specifically, arginine or lysine. (See paragraph 0015; 0045; examples and claims). Lopez-Cervantes et al further disclose the composition to contain phosphorous, specifically, ammonium pyrophosphate. (See paragraph 0022). Lopez-Cervantes et al further disclose that the composition can be applied as a mixture or applied separately. (See paragraph 0098).
Summarily the reference teaches: In the preferred embodiment the composition comprises HYTa and liquid fertilizer. HYTa is a consortium of microorganisms which includes Lactobacteria, nitrogen fixing bacteria, microorganisms that solubilize/mineralize sources of potassium, phosphorous and organic carbon, Bacillus subtilis (SILoSil.RTM. BS) Bacillus thuringiensis strains HD-1 and HD-73 (SILoSil.RTM. BT), and Trichoderma harzianum (TRICHOSIL). [14]. The term "amino acids" refers to a composition containing two or more amino acids and in preferred embodiments, amino acids are provided by use of HYTb. [45]. HYTb and HYTa are combined or applied separately to the soil/seed. [100] Therefore, regarding the wherein clause, since the prior art teaches the same method steps and teaches the same amino acid and nitrogen fixing bacteria as taught by the prior art and therefore would have the same function.
Claim Rejections - 35 USC § 103
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 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.
Claim(s) 20-26 and 28-31 are rejected under 35 U.S.C. 103 as being unpatentable over Lopez-Cervantes et al in view of Nakajima et al.
The teachings of Lopez-Cervantes et al are set forth above.
Lopez-Cervantes et al do not teach of binders with granulation.
Nakajima et al (US Patent Number 4,542,031) teach that at the time of the invention it was routine in the art to preform granulation of nutrients which may not be heat stable, thereby preventing destruction and useful microbes contained in the nutritional material may be safe from extinction. (See column 6).
Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have taken the method of treating seeds with a composition comprising bacteria and nutrients as taught by Lopez-Cervantes et al and to have further added a binder for granulation for the expected benefit of preventing destruction as taught by Nakajima et al.
Claim(s) 20-21 and 23-31 are rejected under 35 U.S.C. 103 as being unpatentable over Lopez-Cervantes et al in view of Nasholm et al.
The teachings of Lopez-Cervantes et al are set forth above.
Lopez-Cervantes et al do not teach of arginine phosphate.
Nasholm et al (WO 2017/200468) teach of fertilizer compositions comprising arginine or lysine in their phosphate form (specifically arginine monophosphate). (See abstract). Nasholm et al further teach that fertilizer compositions comprising arginine phosphate or lysine phosphate prevent the loss of nitrogen. (See page 6).
Accordingly, it would have been prima facie obvious to one of ordinary skill in the art to have taken the method of treating seeds with a composition comprising bacteria and nutrients as taught by Lopez-Cervantes et al and to have further added arginine phosphate or lysine phosphate for the expected benefit of preventing loss of nitrogen as taught by Nasholm et al.
Response to Arguments
Applicant’s arguments and amendments filed 10/27/2025 pertaining to the 101 rejection are persuasive and have been withdrawn.
Applicant's arguments and amendments filed 10/27/2025 pertaining to the 102 and 103 rejections have been fully considered but are not persuasive.
Applicant argues that Lopez-Cervantes adds L-amino acids to the consortium simply as a standard component and there is no disclosure linking nitrogen added in the form of a free L-amino acid to the known toxicity known to be exerted by certain nitrogen forms on microorganisms. Applicant argues there is no disclosure that the nitrogen may reduce toxic effects on microorganism.
Applicant’s argument is unpersuasive since a composition that is physically the same, must have the same properties. See MPEP 2112.01. In instant case, Lopez-Cervantes teaches the same method of applying a composition to treat a seed and composition is the same claimed composition comprising a nitrogen fixing bacteria, L-amino acid, and macronutrient. Moreover, the prior art teaches the same bacteria, instant amino acid, and macronutrient. The prior art need not disclose inherent function, theory, or advantage. See MPEP 2112.
"[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).”
Therefore, applicant’s argument that the instant invention has to dual effect that the L-basic amino acids alleviate the negative impact of the nitrogen containing fertilizers have on viability on growth enhancing bacteria is unpersuasive.
Applicant argues unexpected results but any arguments of unexpected results must be commensurate in scope. Independent claim 20 is generically directed to providing at least one microbe; providing a macronutrient including nitrogen in the form of a basic L-amino acid.” The claim lacks any specificity in formulation or application of the formulation in the method of treating. The examples applicant relies on to argue unexpected results provide specific formulations (specific bacteria and specific amino acid )with specific concentrations. As discussed above, the claims do not recite any of these features. Moreover, it is unclear what arGrow™ complete contains specifically which can contribute to any purported results. Therefore assuming any arguments of unexpectedness with regard to the 103 are persuasive, they would not be commensurate in scope. Note arguments of unexpectedness do not overcome a 102 rejection.
Applicant argues Lopez-Cervantes does not teach binders and granulation and the reliance on Najajima. Applicant argues that Nakajima s non-analogous art. Applicant argues that Nakajima is directed to animal feed and major differences that exist between how animals utilize microorganisms and how plants utilize microorganisms.
The differences made by applicant are noted; however the reliance of Nakajima is not for any specific component rather for the state of the art in granulation processes using binders. The primary references Lopez-Cervantes teaches the composition may be in a powder form prior to applying it in a liquid formulation. See Tables and examples. Najajima teaches the general state of the art of granulation:
“Feedstuffs in granular form may also be prepared by pulverizing or sifting solid products or by binding powdery materials by blowing or spraying water or other binders thereon. The process is suitably carried out in a granulating machine of the fluidized-bed, rotary drum or rotary plate type and the binder to be used may comprise alpha-starch, carboxy-alpha-starch, carboxymethylcellulose (CMC), gelatin, gua-gum, sodium casein, or gum arabic, which binders may be used either in gelatin-like fluids or in solution with water or other suitable solvent.”
Lopez-Cervantes teaches the initial ingredients are in powder form. Note the reference teaches the use of water which reads on binder and would not materially affect the final product. Moreover the instant invention teaches dissolving said granules in liquid. Lopez-Cervantes also teaches the use of chitin which also reads on binders. Thus, again Najajima is not relied upon for any component and rather for the state of the art regarding the process of granulating material, i.e. using water to bind fine powder (granulation) to make an agglomerated product, i.e. a bigger particle.
Note applicant does not claim a specific binder or specific process of granulation to distinguish it from the general process known in the art. Granulating a product for the purpose of making powders into a granulated powder for transportation and storage (Najajima para 4) is the same regardless of the end product used for the purpose of feeding animals or providing it to a plant. Further, the process of granulation as claimed does not affect the final product since the final product used in the method is in liquid form. Applicant has not provided any evidence that granulation of the intermediate product provides any distinguishing feature to the final product, i.e. the liquid composition. Moreover, Najajima teaches the use of granulation in the art is known to prevent powders from scattering; thus reducing waste. See paragraph 4. Thus, any advantages that granulation may provide was known at the time the invention was filed.
Applicant argues that Nasholkm does not cure the deficiencies of Lopez-Cervantes or Najajima. These arguments have been addressed above. It is noted that WO teaches arGrow™ which applicant relies on for purported unexpected results.
Conclusion
THIS ACTION IS MADE FINAL. 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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/SHARMILA G LANDAU/ Supervisory Patent Examiner, Art Unit 1653