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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.
Compliance with 37 C.F.R. § 1.121
The amendments to the claims filed on 05/12/2026 is considered non-compliant , because amended/deleted text in the claims is not indicated with appropriate marking. For example, see Claim 9, in which the deleted text “the total number of root …” is not listed and marked with a strike-through. In the interest of compact prosecution, the amendments have been entered. Applicant is hereby notified that any future amendments that do not comply with 37 C.F.R. § 1.121 may not be entered.
Remarks
The amendments and remarks filed on 05/12/2026 have been entered and considered. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action. The rejections and/or objections presented herein are the only rejections and/or objections currently outstanding. Any previously presented objections or rejections that are not presented in this Office Action are withdrawn.
Claims 1, 3-10, 12, and 18-21 are pending.
Claims 1, 9-10, 12, and 18-20 are amended.
Claims 2, 11, 13-17 and 22-23 are canceled.
Claims 1, 3-10, 12, and 18-21 have been examined on the merits.
Priority
This application, U.S. Application number 17/780412, is a national stage entry of International Application Number PCT/US2020/062411, filed on 11/25/2020, which claims priority from U.S. Provisional Application No. 62941225 filed on 11/27/2019.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 03/05/2026 is acknowledged. The submission is in compliance with the provisions of 37 CFR 1.97., and has been considered by the examiner.
Objections - Withdrawn
Objection to the claims 7-10, and 12-13 in the previous office action is withdrawn due to the amendment to or cancellation of the claims filed on 05/12/2026.
Rejections - Withdrawn
The rejection of Claims 13-17 under 35 U.S.C. 101 is withdrawn due to the cancellation of the claims filed on 05/12/2026.
The rejection of claims 1-22 under 35 U.S.C. 112(b) in the previous office action is withdrawn due to the amendment to or cancellation of the claims.
The rejection of Claims 1, 6-10, and 13 under 35 U.S.C. 102(a)(1) as being anticipated by Newman et al. is withdrawn due to the amendment to or cancellation of the claims.
The rejection of Claims 1, 5-10, 13, and 17 under 35 U.S.C. 103 over Newman et al. in view of Priya et al. is withdrawn due to the amendment to or cancellation of the claims.
The rejections of Claims 1, 6-13, and 18-21 under 35 U.S.C. 103 over Newman et al. in view of Maltzahn is withdrawn due to the amendment to or cancellation of the claims.
Claim Objection
Claim 1 is objected to due to the recitation of “in a furrow” at line 3 of the claim. Since the recited term is referred to a target place or location, it should be changed to a noun form of the term, “a furrow”. Appropriate correction is required. This objection is maintained.
Claim Rejections - 35 USC § 112, Second Paragraph
Claims 1, 3-10, 12, and 18-21 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 pre-AIA the applicant regards as the invention (the new ground of the rejection is necessitated due to Applicant’s amendment to the claims).
Claim 1 is indefinite due to the recitation of “one or more species of rhizobium strain selected from the group consisting of … combinations thereof” in the b) of the claim. It is noted that bacterial taxonomic classification organizes bacteria into a hierarchy ranked in the order of Family, Genus, Species, and Strain based on shared characteristics of the bacteria. A bacterial species may comprise multiple different bacterial strains, whereas a bacterial strain can only belong to a single bacterial species. It is unclear how a single “rhizobium strain” recited in the claim can comprise “one or more species” of bacteria. For the purpose of examination, the phrase is interpreted as “one or more rhizobium strains selected from the group consisting of … combination thereof”.
Claims 1 and 12 are indefinite due to the recitation of “a rate of about 1.0 to about 109 cfu/seed”. Examiner notes that the “cfu” stands for a “colony forming unit”. For a bacterial cell to form a colony, the bacterial cell must be an intact whole cell and viable. As such, the lowest number of cfu is one, i.e. 1 cfu. However, The “about 1” cfu/seed at the low end of the claimed range in claim 1 indicates that the cfu can be less than one cfu (i.e. less than a single cell). It is unclear how an amount of < 1 cfu can be used for defining the count of intact bacterial cells. For the purpose of examination, the recited phrase is interpreted as “a rate from 1 cfu/seed to about 109 cfu/seed”.
Claims 1 and 3-4 are indefinite due to the recitation of “the rhizobium”. There is no sufficient antecedent basis for the limitation in the claims. For the purpose of examination, the recited phrase is interpreted as “the one or more rhizobium strains” to be consistent with the interpretation of the claim 1 as indicated above.
Claims 20 and 21 are indefinite due to the recitation of “the one or more species of rhizobium present in the composition”. There is no sufficient antecedent basis for the limitation “the one or more species of rhizobium” in the claims. For the purpose of examination, the recited phrase is interpreted as “the one or more rhizobium strains” to be consistent with the interpretation of the claim 1 as indicated above.
The remaining claims are rejected for depending from an indefinite claim.
Claim Rejections - 35 USC § 103
Claims 1, 3, and 6-10 are rejected under 35 U.S.C. 103 as being unpatentable over Newman et al. (US 2017/0107160, 2017, of record) in view of Gomes et al. (BMC Genomics, 2014, 15:643, pages 1-19, of record).
Newman et al. teach a fertilizer composition comprising hopanoid-producing nitrogen-fixing bacteria (rhizobia) as well as a method of applying the composition as biofertilizer to a leguminous plant or seed thereof, or a furrow, soil surrounding the plant/seed to stimulate plant growth and plant yield, with enhanced tolerance to diverse stresses in plant-microbe symbiotic microenvironments (abstract, paras 0007— 0015, 0019-0020, 0122, Claims 1-5 and 19-23), wherein the nitrogen-fixing bacteria/rhizobia in the families Rhizobiaceae, Bradyrhizobiaceae or Phyllobacteriaceae (para 0057/lines 4-6 from bottom); wherein the leguminous plant or seed thereof is a soybean plant (Glycine max) or a seed thereof (paras. 0060/line 3, and 0067/line 4, claim 20); and wherein the hopanoid-producing bacteria/rhizobia can be bacteria that have been genetically engineered (claims 6 and 10). Newman et al. further teach a method of using the biofertilizer composition for fertilizing a leguminous plant (stimulating plant growth and plant yield), wherein the method comprises applying the composition to a leguminous plant or soil surrounding the plant for a time and under conditions to allow symbiosis of the nitrogen-fixing bacteria with the leguminous plant (see Claim 21); and wherein the method comprising coating and/or inoculating one or more seeds of the leguminous plant with the biofertilizer composition (see Claims 21, 23), and wherein the leguminous plant is a soybean plant (Glycine max) (see Claim 20).
Newman et al. specifically teach a biofertilizer composition for a leguminous plant, in a form suitable for administration to one or more leguminous plant or a seed thereof, and/or for administration to a soil surrounding the one or more leguminous plant or seed thereof, comprising nitrogen-fixing bacteria capable of producing C35 hopanoid, comprising Bradyrhizobium BTAi1, Bradyrhizobium japonicum, Bradyrhizobium diazoefficiens, Bradyrhizobium ORS278, and Methylobacterium nodulans (see Claim 5) (Note: these bacteria read on the “one or more bacteria of Methylobacterium” and are comparable to the rhizobia strain(s) of “Bradyrhizobium japonicum” and/or “Bradyrhizobium diazoefficiens” in the instant claim 1), as well as a method of using the biofertilizer composition for fertilizing a leguminous plant (stimulating plant growth and plant yield), wherein the method comprises applying the composition to a leguminous plant or soil surrounding the plant for a time and under conditions to allow symbiosis of the nitrogen-fixing bacteria with the leguminous plant (see Claim 21); and wherein the method comprising coating and/or inoculating one or more seeds of the leguminous plant with the biofertilizer composition (see Claims 21, 23), and wherein the leguminous plant is a soybean plant (Glycine max) (see Claim 20).
The method of Newman et al. differs from the method of the instant claims 1, 3, and 6 in that although Newman et al. teach the fertilizer composition comprises a rhizobium strain of Bradyrhizobium diazoefficiens, they are silent about which specific strain of B. diazoefficiens is used and do not teach the strain is SEMIA 5080.
It would have been obvious to one of ordinary skill in the art to specifically include Bradyrhizobium diazoefficiens strain SEMIA 5080 in the fertilization composition in the method of Newman et al. for providing efficient N2-fixaxtion to a legume plant, thus improving growth and yield of the plant, specifically soybean, because it is well known in the art that B. diazoefficiens SEMIA 5080 is an outstanding N2-fixer for legumes and is commercially available as plant inoculants. In support, Gomes et al. teach that symbiosis of legumes with soil-borne N2-fixing bacteria (often referred as rhizobia) can provide more than 60% of plant’s N requirements (page 1/col 1/lines 4-6); and that the strain SEMIA 5080 of species Bradyrhizobium diazoefficiens has an outstanding efficiency in fixing nitrogen, and has been used in commercial inoculants for application to crops of soybean (Glycine max) (abstract/lines 1-3).
Regarding the limitation of “the rhizobium strain is applied at a rate of 1.0 to about 109 cfu/seed” in the claim 1, this limitation is directed to an optional step of applying to the legume seed in the claim. However, the claim 1 does not further limit the applying step to require applying the composition to a seed, not to a legume plant, a furrow, soil, or habitat. Therefore, the teaching of applying the composition to a leguminous plant, a furrow or soil surrounding the plant by the cited prior art meet the claimed limitation.
Regarding Claims 7-10, Newman et al. teach that the nitrogen-fixing bacteria are symbiotic N-fixing soil bacteria, and these bacteria colonize and form root nodules with plants/legumes, which fertilize a plant and/or a soil (paras 0020, 0027, 0056, 0058, 0057/lines 4-6 from bottom, 0061-62); and as indicated above, the bacteria/rhizobia along with hopanoid stimulate plant growth and plant yield with enhanced tolerance to diverse stresses in plant-microbe symbiotic soil environments. Thus, it is expected that application of the rhizobia/bacteria would have led to increased weights and numbers of root nodule. Furthermore, the limitations recited in the claims are directed to an outcome or function of the application of the rhizobia/bacteria, rather than steps of the claimed method, i.e. the limitations are directed to what the method does, not to what the method is. Newman et al. and Gomes et al. suggest a method having the same step as that of the claimed method. In the absence of evidence to the contrary, it is presumed that a method having substantially the same steps is capable of performing substantially the same function and generating substantially the same outcome. As such, the teachings of the cited prior art meet the limitations of Claims 7-10.
Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention.
Claims 1, 3, 6-10, and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Newman et al. (US 2017/0107160, 2017, of record) in view of Gomes et al. (BMC Genomics, 2014, 15:643, pages 1-19, of record), as applied to Claims 1, 3, and 6-10, further in view of Campo et al. (Symbiosis, 2009, 48:154-163, of record), as evidenced by NCBI printout of Bradyrhizobium diazoefficiens SEMIA 5080 (retrieved from the website of https://www.ncbi.nlm.nih.gov/Taxonomy on 2/14/2025, of record) and Sharma et al. (J Food Sci Technol, 2014, 51(3):551–557, of record).
The teachings of Newman et al. and Gomes et al. are described above.
Regarding Claim 20, Newman et al. and Gomes et al do not teach a specific rate of the rhizobium strain, Bradyrhizobium diazoefficiens SEMIA 5080, for coating a seed of legume/soybean.
It would have been obvious to one of ordinary skill in the art to apply B. diazoefficiens SEMIA 5080, in the fertilization composition at the claimed rate of 1-109 CFUs/seed to a seed of legume/soybean in the method suggested by Newman et al. for coating the seed, thus improving root nodulation, plant growth or plant yield, because it is well known in the art to apply B. diazoefficiens SEMIA 5080 to a legume/soybean seed at a rate falling into the claimed ranges, e.g. 8.7 x 105 to 1.1 x 106 cfu per seed. In support, Campo et al. teach applying superior Bradyrhizobium strains, specifically including B. japonicum SEMIA 5080, to soybean seeds for improving biological nitrogen fixation of soybean crop (abstract/lines 1-2, the para spanning both columns in page 154, page 155/col. 2/para 1), wherein the B. japonicum SEMIA 5080 is in an inoculant of approximately 109 cells (i.e. cfu) per gram (page 155, right col., para 1, lines 6-7), and applied to soybean seeds at a recommended dose rate of 500 g inoculant per 500 kg seeds (page 155, right col., para 2, lines 3-4 from bottom). Examiner notes that Bradyrhizobium japonicum SEMIA 5080 taught by Campo et al. is a synonym of Bradyrhizobium diazoefficiens SEMIA 5080, as evidenced by the NCBI printout of Bradyrhizobium diazoefficiens SEMIA 5080 (see page 1, the section “Other names”). It is noted that 100 soybean seeds have a weight from 8.7–11.1 grams, as evidenced by Sharma et al., who teach that a 100-seed weight for soybean ranges from 8.7–11.1 grams (abstract/lines 6-7, page 552/last 3 lines). As such, the 500 kg seeds have a number of seeds from 4.5 x 105 to 5.7 x 105. Accordingly, the recommended dose rate of Campo et al. is converted to 8.7 x 105 to 1.1 x 106 cfu per seed, which reads on the rate recited in the claim 20.
Regarding Claim 21, the further limitation requires the rhizobium strain recited in claim 1 to be applied to soil at a rate in a range of 106 – 1016 cfu per hectare. However, the claim does not recite any limitation to require that the claimed method comprises an active step of applying the rhizobium to soil. Given the step of applying to soil is optional in claim 1 and the cited prior art renders applying the rhizobium strain to a legume seed at the claimed rate to be obvious, the combined teachings of the cited prior art meet the limitation of claim 21.
Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention.
Claims 1, 4, and 6-10 are rejected under 35 U.S.C. 103 as being unpatentable over Newman et al. (US 2017/0107160, 2017, of record) in view of Soulemanov et al. (Microbiol. Res., 2002, 157:25–28, of record).
The teachings of Newman et al. are described above.
The method of Newman et al. differs from the method of the instant claims 1, 4, and 6 in that although Newman et al. teach the fertilizer composition comprises a rhizobium strain of Bradyrhizobium japonicum, they are silent about which specific strain of B. japonicum is used and do not teach the strain is 532C.
It would have been obvious to one of ordinary skill in the art to specifically include Bradyrhizobium japonicum strain 532C in the fertilization composition in the method of Newman et al. for improving root nodulation, growth and yield of a leguminous plant, specifically soybean, because it is well known in the art that B. japonicum strain 532C effectively nodulates the leguminous plant soybean and is commercially available as plant inoculants; and the strain 532C has the advantage of being effective even under cool soil conditions. In support, Soulemanov et al. teach that Bradyrhizobium japonicum 532C effectively nodulates soybean and is used in commercial inoculants; and in Canada, the strain 532C has been found to be more effective under cool spring soil conditions, which are common conditions in soybean growing areas (abstract/lines 1-3; page 25/col. 2: para 1/lines 6-10, last para/lines 1-3).
Regarding the limitation of “the rhizobium strain is applied at a rate of 1.0 to about 109 cfu/seed” in the claim 1, this limitation is directed to an optional step of applying to a legume seed in the claim. However, the claim 1 does not further limit the applying step to require applying the composition to a seed, not to a legume plant, a furrow, soil, or habitat. Therefore, the teaching of applying the composition to a leguminous plant, a furrow or soil surrounding the plant by the cited prior art meet the claimed limitation.
Regarding Claims 7-10, Newman et al. teach that the nitrogen-fixing bacteria are symbiotic N-fixing soil bacteria, and these bacteria colonize and form root nodules with plants/legumes, which fertilize a plant and/or a soil; and the bacteria/rhizobia along with hopanoid stimulate plant growth and plant yield with enhanced tolerance to diverse stresses in plant-microbe symbiotic soil environments, as indicated above. Thus, it is expected that application of the rhizobia/bacteria taught or suggested by the cited prior art would have led to increased weights and numbers of root nodule. Furthermore, the limitations recited in the claims are directed to an outcome or function of the application of the rhizobia/bacteria, rather than steps of the claimed method, i.e. the limitations are directed to what the method does, not to what the method is. Newman et al. and Soulemanov et al. suggest a method having the same step as that of the claimed method. In the absence of evidence to the contrary, it is presumed that a method having substantially the same steps is capable of performing substantially the same function and generating substantially the same outcome. As such, the teachings of the cited prior art meet the limitations in Claims 7-10.
Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention.
Claims 1, 3, 6-10, 12 and 18-21 are rejected under 35 U.S.C. 103 as being unpatentable over Newman et al. (US 2017/0107160, 2017, of record) in view of Gomes et al. (BMC Genomics, 2014, 15:643, pages 1-19, of record), as applied to Claims 1, 3, and 6-10, further in view of Maltzahn et al. (WO 2015/035099, 2015, of record).
The teachings of Newman et al. are described above.
Regarding Claims 12, 18, and 20, Newman et al. do not teach a specific rate for applying to a leguminous seed the bacterium of Methylobacterium sp. or the rhizobium strain of Bradyrhizobium.
Maltzahn et al. teach a method for providing benefit to a seed or seedling of a plant, or to the plant (e.g. Glycine max/soybean plant) for improving plant nodulation, plant health, and plant yield, comprising: applying a composition comprising bacterial endophytes to the seed or seedling or plant, which confers the benefits of: increased root biomass or length, increased height, shoot length, leaf number, or overall biomass, increased tolerance to environmental stress, and/or an increased plant hormone/metabolite level (abstract, page 3/lines 8-11 and 15-22, page 7/para 1, Claims 52-55, 95, 99-100, 112, and 128), wherein the endophytes can be one or more bacteria from Methylobacterium species (reading on the Methylobacterium sp. in claim 1), Bradyrhizobium species and/or Rhizobium species (page 69/last para); and wherein the bacterial endophytes are applied to the seed, seedling, or plant at a rate of at least 1 cfu, at least 100, at least 10000, or at least 30000 or more cfu per plant seed, or in a rage of 102 – 108 cfu per seed, or specifically 2 x106 or 3.13 x107 cfu per seed (page 14/lines 23-25, page 117/lines 4-8, page 216/lines 4-5, page 219/line 26-page 220/line 1, page 312/lines 17-19) (Note: the rates taught by Maltzahn et al. read on the claimed rates in claims 12 and 18).
It would have been obvious to one of ordinary skill in the art to apply the bacterium of Methylobacterium sp. and or the rhizobium strain of Bradyrhizobium diazoefficiens in the fertilization composition at the claimed rate of 1-109 cfu/seed to a seed of legume/soybean in the method suggested by Newman et al. and Gomes for coating the seed, thus improving root nodulation, plant growth or plant yield, because it is well known in the art to apply beneficial bacteria including those of Methylobacterium sp. and rhizobium strain of Bradyrhizobium to a legume/soybean seed at a rate falling into the claimed ranges, e.g. 1x102 – 1x108 cfu per seed, 2 x106 or 3.13 x107 cfu per seed, as supported by Maltzahn et al. Furthermore, Examiner notes that the claimed rates are in extremely broad ranges, which are well within the purview of one of ordinary skill in the art having the cited references before him/her as a guide. Thus, the claims 12, 18, and 20 would have been obvious over the combined teachings of the cited prior art.
Regarding Claims 19 and 21, this step is directed to the method of claim 1 with the added limitations that one or more bacteria recited in the a) are applied to soil at a rate in a range of 106 – 1016 cfu per hectare. However, applying the composition to soil is an optional step. The claim does not recite any limitation to require that the claimed method comprises an active step of applying the one or more bacteria to soil. Given the cited prior art renders applying Methylobacterium bacteria to a legume seed at the claimed rates to be obvious, the combined teachings of the cited prior art meet the limitation of the claim 19.
Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention.
Claims 1, 3, and 5-10 are rejected under 35 U.S.C. 103 as being unpatentable over Newman et al. (US 2017/0107160, 2017, of record) in view of Gomes et al. (BMC Genomics, 2014, 15:643, pages 1-19, of record), as applied to Claims 1, 3, and 6-10, further in view of Priya et al. (Int. J. Curr. Microbiol. App. Sci, 8(8): 394-405, published on Aug. 10, 2019, of record).
The teachings of Newman et al. are described above.
Regarding Claim 5, Newman et al. teach the fertilization composition comprises a bacterium of Methylobacterium species, and they do not teach the fertilization composition comprises a bacterium Methylobacterium radiotolerants.
It would have been obvious to one of ordinary skill in the art to further include Methylobacterium radiotolerants in the fertilization composition in the method of Newman et al. for enhancing anti-pathogenic activities of a leguminous plant, and further improving seed gemination, root nodulation, growth, and yield of the plant, because it is well known in the art that M. radiotolerants effectively nodulates a leguminous plant, improves growth and yield of the plant, increases seed gemination; and enhances the plant’s resistance activities against plant pathogens. In support, Priya et al. teach that M. radiotolerants enhances seed gemination as well as root nodulation, growth, and biomass yield of groundnut plant through increased root colonization, increased root length, shoot length, and seeding length (abstract, Table 1); and that M. radiotolerants has ability to induce systemic resistance activity (ISR) against groundnut seed-borne fungal pathogen (abstract, last 3 lines); wherein M. radiotolerants is applied to groundnut seeds (the para spanning pages 396 and 397). Priya et al. further teach that groundnut is one of the most widespread and important food legumes in the world (page 394, left col., lines 1-3).
Therefore, the invention as a whole would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention.
Response to Arguments
Applicant's arguments about the objection to the claim 1 in the response filed on 05/12/2026 (page 6, para 1) have been fully considered but they are not persuasive for the reason indicated above (see page 4/last para for details).
It is noted that Applicant’s arguments about the remaining of the claim objections in pages 5-6 of the response are moot because the objections have been withdrawn.
Applicant's arguments about the rejection of Claims 13-17 under 35 U.S.C. 101 in the 05/12/2026 response (page 6) have been fully considered but they are moot because the rejection has been withdrawn as indicated above.
Applicant's arguments about the rejection of Claims 1 and 12 under 35 U.S.C. 102(b) in the 05/12/2026 response (page 7) have been fully considered but they are unpersuasive because the limitations “one or more species of rhizobium strain” and “a rate of about 1.0 to about 109 cfu/seed” recited in the claims still render the claims to be indefinite for the reasons indicated above (see pages 5 and 6 for details).
It is noted that Applicant’s arguments about the remaining of the 112(b) rejections in pages 7 and 8 of the response are moot because the rejections have been withdrawn.
In response to Applicant's arguments about the claim rejections under 35 U.S.C. 102(a)(1) and 35 U.S.C. 103 in the 05/12/2026 response (pages 8-13), Examiner notes that the claim rejection under 35 U.S.C. 102(a)(1) as being anticipated by Newman as well as the rejections of claims 1, 5-13, and/or 17-21 under 35 U.S.C. 103 over Newman in view of Maltzahn or Priya have been withdrawn due to claim amendment, as indicated above. However, Applicant’s arguments based on teachings of Newman in pages 8-13 of the response are found not persuasive after being fully considered by the examiner for the following reasons.
First, in response to Applicant’s arguments based on combination of two different microorganisms in one composition and no counterpart in Newman’s disclosure in pages 8-10 of the response, the fertilizer compositions of Newman et al. is not limited to those containing only a single bacterium. On the contrary, Newman et al. expressively teach that the fertilizer composition comprises a combination of multiple different bacteria including Methylobacterium and rhizobium. See Claims 1 and 5 of Newman et al.: “A biofertilizer for a leguminous plant essentially consisting of one or more nitrogen-fixing rhizobia”, and “wherein the one or more nitrogen-fixing rhizobia comprise Bradyrhizobium BTAi1, Bradyrhizobium japonicum, Bradyrhizobium diazoefficiens, Bradyrhizobium ORS278, and Methylobacterium nodulans” (emphasis added). As such, the biofertilizer composition of Newman specifically comprises a combination of different N2-fixing bacteria including Methylobacterium nodulans, Bradyrhizobium japonicum, Bradyrhizobium diazoefficiens, and, which respectively encompass or read on the claimed “one or more bacteria of Methvlobacterium sp.” and rhizobium strains of “Bradyrhizobium japonicum 532c” and “Bradyrhizobium diazoefficiens SEMIA 5080” recited in the instant claim 1. The composition in the claim 1 is not distinct from the biofertilizer composition taught by Newman.
Second, in response to Applicant’s arguments based on different functional focus (nodulation vs. stress tolerance) in pages 9-10 of the response, Examiner reminds Applicant that the instant claims are directed to a method for improving plant nodulation, plant health and/or plant yield (see the limitation at lines 1-2 of the instant claim 1), not only for improving plant nodulation. The improvement of stress tolerance of plants achieved by the method of Newman et al. leads to improved plant health and improved plant yield, thus meeting the claimed limitation of the instant claims. Furthermore, even assuming the claimed method is limited only for improving plant nodulation, it is still not distinct from the method suggested by the cited prior art. This is because Newman et al. expressively teach that the nitrogen-fixing bacteria used in their composition are symbiotic N-fixing soil bacteria and these bacteria colonize and form root nodules with plants/legumes, fertilizing planta and soil in a plant-microbe symbiotic soil environment; and the method of Newman meets the claimed limitations about improving plant nodulation, as indicated above.
In response to Applicant’s arguments in the paragraph spanning pages 10 and 11 of the response, it is noted that the arguments about the “suboptimal nodulation and nitrogen-fixation in standard conditions” are based on the features not recited in the instant claims. Examiner reminds Applicant again that the instantly claimed method is used for improving plant nodulation, plant health and/or plant yield. The better fertilizers provided to plants under challenging environments in the method of Newman leads to improved plant health and improved plant yield. Thus, the method of Newman is not distinct from the claimed method.
With regard to Applicant’s arguments based on generating C35 hopanoids by N2-fixing rhizobia of Newman in pages 8-10 of the response, it is noted that the instant claims do not recite any limitations to exclude C35 hopanoids-generating N2-fixing rhizobia from the composition used in the claimed method. As such, the claimed method is not distinct from the method of Newman et al.
In response to Applicant’s arguments based on Methylobacterium nodulans and Methylobacterium radiotolerans in page 9/last para and pages 11-12 of the response, it is noted that the Methylobacterium bacterium in the instant claim 1 is not limited to Methylobacterium radiotolerans. Rather, the “one or more bacteria of Methylobacterium sp.” recited in the claim 1 can be any Methylobacterium bacteria. The Methylobacterium nodulans comprised in the fertilizer composition of Newman reads on the claimed “one or more bacteria of Methvlobacterium sp.”, thus meeting the claimed limitation. With regard to M. radiotolerans recited in the dependent claim 5, this bacterium is not excluded from the bacteria to be comprised in the fertilizer composition of Newman. Furthermore, the benefits of this bacterium to legume plant is well established in the art, as supported by Priya et al. One of ordinary skill in the art would have been motivated to further include M. radiotolerans in the composition in the method of Newman for promoting root nodulation, plant growth, plant health, and plant yield, as indicated in the 103 rejection above (see page 16).
With regard to Applicant’s arguments based on Bradyrhizobium diazoefficiens SEMIA 5080 in pages 11-13 of the response, it is noted that Newman expressively teaches that the fertilizer composition comprises nitrogen-fixing Bradyrhizobium diazoefficiens, whose scope encompasses nitrogen-fixing Bradyrhizobium diazoefficiens SEMIA 5080. Furthermore, B. diazoefficiens SEMIA 5080 is commercially available and commonly used in the prior art for providing its outstanding N2-fixing activity to legume plants, as supported by Gomes. One of ordinary skill in the art would have been motivated to include B. diazoefficiens SEMIA 5080 as the nitrogen-fixing bacterium of Bradyrhizobium diazoefficiens in the composition in the method of Newman for the reasons indicated in the 103 rejection above (see pages 8-10 ).
With regard to Applicant’s arguments based on unexpected results in page 12 of the response, they are not persuasive. It is expected that addition of M. radiotolerans to the composition would improve plant nodulation, because it is well known in the art that M. radiotolerants effectively nodulates leguminous plants, as supported by Priya et al. Applicant failed to provide any factual evidence to support that improved plant nodulation is unexpected in the art.
Overall, Newman et al. in combination with the cited prior art suggest each and every single element of the claimed method. The conclusion of the obviousness of the claims 1, 3-10, 12, and 18-21 has been established based on the cited prior art for all the reasons indicated above.
Conclusion
No claim is in condition for allowance.
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Any inquiry concerning this communication or earlier communications from the examiner should be directed to Qing Xu, Ph.D., whose telephone number is (571) 272-3076. The examiner can normally be reached on Monday-Friday from 9:30 AM to 5:00 PM. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Manjunath N. Rao, can be reached at (571) 272-0939. Any inquiry of a general nature or relating to the status of this application or proceeding should be directed to the receptionist whose telephone number is (571) 272-1600.
/Qing Xu/
Patent Examiner
Art Unit 1656
Prosecution Insights