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 .
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.
Priority
The instant application, filed 08/04/2022, claims priority to U.S. provisional application 63/229,757, filed 08/05/2021.
Status of Claims and Application
The amendments to the claims and specification filed 07/23/2025 are acknowledged. Claims 1-16 are amended. Claims 17-20 are added. Claims 1-20 are currently pending and are examined on the merits herein.
Withdrawn Rejections and Objections
Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
Modified grounds of rejection (as necessitated by amendments)
Drawings
The replacement drawings were received on 07/23/2025. These drawings are acceptable.
Claim Objections
Claims 8 and 14 remain objected to because of the following informality: claims 8 and 14 recite “Metarrhizium anisopliae” (claim 8 line 7; claim 14 line 7). It should instead be “Metarhizium anisopliae” with only one “r.” Appropriate correction is required.
Claims 18-20 are objected to because of the following informality: the preambles of claims 18-20 make reference to the “wireworm-resistant seed of claim 17,” however, claim 17 is technically written towards a “seed for growing a wireworm-resistant plant.” In order to remain consistent with the invention claimed in claim 17, it is recommended to rewrite the preambles of dependent claims 18-20 to refer to the “seed for growing a wireworm-resistant plant” recited in independent claim 17. Appropriate correction is required.
Claim 19 is also objected to because of the following informality: the recitation of “Burkholderia” in line 2 does not require underlining, because this is a newly submitted claim and has thus not undergone revision yet. Appropriate correction is required.
Claim 20 is also objected to because of the following informality: recitations of “Templamide” and “Templazole” do not require capitalization of the first letter, as these are not proper nouns. Additionally, the recitation of “Templaminde B” and “Tempalazole A” in line 2 are incorrectly spelled, and should instead be “templamide B” and “templazole A.” This correct spelling is evidenced in instant specification paragraph [0055]. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 10 and 20 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 10 recite an increase of “plant vigor.” Because “plant vigor” is not adequately defined in the instant specification or claims, and because it is unclear based on the instant specification how an increase in “plant vigor” is evaluated, it is therefore unclear what traits are encompassed by this term. For instance, is plant vigor intended to mean the plant’s tenacity in growth situations, its physical health, or some other definition or combination of meanings?
Claim 20 recites the “fermentation product includes…FR901228 and/or FR901465.” Because there is a lack of definition for these two terms in the claims, and because there is no explicit definition for either of these terms in the instant specification, it is unclear what “FR901228” and “FR901465” are.
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 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0069556 A1 (Asolkar, R. et. al.) published 7 March 2019 (PTO-892 04/23/2025; herein “Asolkar”) in view of US 9,738,567 B1 (Taganov, I. et. al.) published 22 Aug 2017 (IDS 06/06/2024) and Pitts, K. “Applications of Biopesticides as Seed Treatments.” Available online 07/03/2018, https://www.abim.ch/fileadmin/abim/documents/presentations2018/7_03_Keith_Pitts.pdf (PTO-892 accompanying this action), as evidenced by Asolkar, R. et. al. (2013). “Discovery and Development of Natural Products for Pest Management.” Pest Management with Natural Products, Ch. 3, pp. 17-30. DOI: 10.1021/bk-2013-1141.ch003 (PTO-892 accompanying this action; herein “Asolkar 2013”).
Asolkar teaches a seed coating composition that acts as an insecticide and/or crop yield enhancer which comprises a whole cell broth, supernatant, filtrate, and/or extract collected from fermentation of Burkholderia A396 NRRL Accession No. B-50319 and a carrier, diluent, and adjuvant (Abstract; claims 1-2; Examples 2-4). This fermentation strain of Burkholderia sp., and the carrier, diluent, and adjuvant read on the fermentation product of Burkholderia sp. as recited in instant claims 1-3, 17 and 19, as well as the one or more of a carrier, a diluent, and an adjuvant in instant claim 1. Asolkar exemplifies its composition as water dispersible granules (Example 3), wettable powders (Example 4), emulsifiable concentrates (Example 5), and aqueous solutions (Example 6). This reads on the formulation types recited in instant claim 4. Asolkar teaches its seed coating composition further comprises an artificial growth promotion agent or an insecticide, fungicide, and/or nemacide (claims 15-17). This reads on the insecticides and/or plant growth promoting agents of instant claim 7.
Asolkar exemplifies a method of treatment of corn plant hybrids with its composition both as a seed-treatment and as an in-furrow (Example 1 [0073]; Examples 3 and 9). Asolkar teaches that the seeds of the corn plant were treated in the laboratory and returned for planting, and as a result its compositions modulated corn root worm infestation in the grown plants, and also increased overall Zea mays (corn) plant yield (Example 2 [0076]). Therefore, Asolkar reads on the active method steps of applying the composition to a plant and/or seed, planting the seed, and growing the seed, as recited in instant claims 10-12.
Asolkar teaches its formulation is mixed with a fertilizer for the purpose of providing plant nutrients and control of soil insects simultaneously; Asolkar exemplifies this by demonstrating fertilizer urea (2% solution) is mixed with the insecticidal emulsion and sprayed for supply of nitrogen to the plant while realizing effective pest control (Example 7).
Asolkar teaches its formulation is particularly used to modulate infestation on plant seeds, particularly for plants which include wheat ([0058]). Asolkar teaches that, when the composition is applied to the seed, the effective amount is a concentration 0.01%-30% of the active ingredient Burkholderia sp. per 100 g of seed ([0061]). Asolkar teaches the composition is applied to the seed as one or more coats prior to planting the seed ([0064]). These teachings read on a seed for growing a plant comprising the seed and a fermentation product of a Burkholderia sp. on a surface of the seed, which are limitations of the seed for growing wireworm-resistant plant recited in instant claim 17. Asolkar’s teachings collectively read on the seed being a wheat seed and the fermentation product being Burkholderia spp. strain A396, as recited in claims 18 and 19. It is noted that Asolkar’s Burkholderia sp. strain A396 is labeled MBI-206 (Asolkar [0073]). As evidenced by Asolkar 2013, Burkholderia sp. strain A396 being denoted as MBI-206 inherently contains templazole B, templamide A, FR901465, FR901228, templamide B, and templazole A (pp. 21-22; Fig. 2). Therefore, Asolkar’s seed treated by the fermentation product of Burkholderia spp. strain A396 reads on instant claim 20.
Asolkar differs from the instant invention in that it fails to teach the composition contains the Burkholderia sp. in an amount sufficient to control wireworms, as recited in instant claim 1. Asolkar also differs from the instant invention in that it does not expressly teach its composition further comprises CPFAPH in an amount sufficient to increase plant vigor, plant count, and plant yield combined with the fermentation product, as recited in instant claim 1. It is noted that the Examiner considers the terms “plant count” and “plant yield” to be synonymous. Additionally, Asolkar fails to teach its method of applying the effective amount of the composition is for controlling wireworms and promoting plant growth by increasing plant vigor, plant count, and plant yield, as recited in instant claim 10. Asolkar fails to teach its composition comprises micronutrients comprising boron, cobalt, copper, iron, manganese, molybdenum, and/or zinc, as recited in instant claim 5. Asolkar fails to teach its composition further comprises ethylene diamine tetraacetic acid (EDTA) as recited in instant claim 6.
Asolkar also differs from the instant invention in that it fails to exemplify that its seed coating composition further comprises the specific insecticides and/or plant growth promoting agents from instant claims 8 and 9. Therefore, Asolkar does not explicitly teach its method of treating plants/seeds further comprises applying one or more insecticides, as recited in claim 13, particularly those from the Markush group of instant claim 14; furthermore, Asolkar doesn’t teach its method further comprises applying one or more plant growth promoting agents, as recited in claim 15, particularly those from the Markush groups of instant claim 16.
Asolkar also differs from the instant invention in that it fails to teach its seed is for growing a wireworm resistant plant, and that the seed also includes CPFAPH on its surface, as is recited in instant claim 17.
Asolkar does, however, teach that its composition can include additional insecticide(s) such as avermectin, neem oil, spinosads, other Burkholderia sp., entomopathogenic fungi such as Beauveria bassiana, organophosphorous compounds, carbamates, pyrethroids, and neonicotinoids ([0051]). US’556 teaches other microorganisms can be combined with the Burkholderia in the present composition, such as Bacillus sp. (Bacillus firmus, Bacillus thuringiensis), Paecilomyces lilacinus, Pasteuria penetrans, Psudomonas sp., Brevabacillus sp., Lecanicillium sp., Pseudozyma sp., Streptomyces sp., Trichoderma sp., Gliocladium sp., and Muscodor sp. ([0052]). This reads on the list of insecticides of claims 8 and 13-14. Asolkar also teaches that its composition can be used in combination with other plant growth promoting agents such as diammonium phosphate, compost teas, seaweed extracts, indole acetic acid, indole butyric acid, naphthalene acetic acid, Bacillus spp., Pseudomonads, Rhizobia, and Trichoderma spp. ([0056]). This reads on the additional plant growth promoting agents of claims 9 and 15-16.
Taganov teaches a soluble fertilizer for stimulating health and growth of plants (column 1 Field of the Invention). Taganov teaches said fertilizer comprises a co-polymer of fulvic acid and poly-metallic humates (CPFAPH) and secondary nutrients from the group comprising zinc, manganese, copper, boron, iron, molybdenum, cobalt and nickel (claim 1; column 6 Table 1). Taganov teaches that the end-product of CPFAPH can contain at least a certain amount of chelated micro nutrients, however, chelates having humic ligands are not stable at the high temperatures typically used during the drying processes; therefore, additional stable chelated micro nutrients can be introduced into the end-product, and said chelating agent can include ethylenediaminetetraacetic acid (EDTA) (column 5 lines 9-25). Taganov also teaches a method for promoting crop production by mixing the fertilizer, dissolving it in an aqueous solution, and soaking seeds in the solution as application of the fertilizer to the crop (claims 5-6).
Taganov exemplifies the use of its fertilizer to successfully improve growth in a variety of crops via seed and/or foliar treatment (Examples 1-11). Specifically, Taganov demonstrates that its fertilizer includes treatment of wheat seeds with UBP at 0.15 kg per ton, and the result was a production of increased yield by 17.6% when compared to standard fertilization program (Example 1). As evidenced by the instant specification, UBP is synonymous with CPFAPH (see instant specification [0032]). Taganov teaches its fertilizer is configured for rapid seed and leaf penetration, highly efficient nutrient uptake, and full utilization in plant metabolism, and that it can decrease the amount of fungicides, herbicides, and insecticides typically necessary to promote plant growth by about 25% (column 8 lines 19-25).
Pitts teaches that Majestene®, a heat-killed Burkholderia rinojensis strain A396, is a product containing heat-killed cells and fermentation media (p. 6). Pitts teaches that wireworm damage to tubers is reduced upon seed treatment using Majestene® at a concentration of 1 L/100 kg (pp. 8 and 26). Pitts also recommends expanding crop and pest control of wireworms to wheat crops (p. 25).
It would have been prima facie obvious for a person having ordinary skill in the art, before the effective filing date of the claimed invention, to combine the teachings of Asolkar, Taganov and Pitts, and (1) add a CPFAPH fertilizer solution containing chelated micronutrients and EDTA, as taught by Taganov, to the seed coating composition and subsequent method of treating wheat seeds with said composition taught by Asolkar, (2) perform routine optimization on the effective amount of Burkholderia sp. fermentation product and CPFAPH in the seed coating composition for the purposes of controlling attack from wireworms and improving plant yield and growth, based on the teachings of Pitts and Taganov, and (3) use the teachings of Asolkar and include the suggested insecticide(s) and/or plant growth promoting agent(s) in the seed treatment composition and subsequent method of treating seeds/plants with said composition, and arrive at the instant invention.
The ordinarily skilled artisan would have been motivated to perform modification (1) because Taganov teaches that its CPFAPH-based fertilizer, when combined with EDTA, is configured to provide rapid nutrient seed and leaf uptake by supplying stable chelated micronutrients boron, cobalt, copper, iron, manganese, molybdenum, and zinc; furthermore, its fertilizer would decrease the amount of Asolkar’s Burkholderia sp. insecticide necessary to promote plant growth by about 25% when added to the composition of Asolkar. An ordinarily skilled artisan would have a reasonable expectation of success in making the modification (1) due to the fact that Asolkar teaches its Burkholderia sp.-based insecticidal composition is readily mixed with fertilizer, and even exemplifies doing so with a solution of urea. Furthermore, Taganov teaches the success of seed treatment and foliar application of its fertilizer onto a variety of crops, which is the same method of application as taught by Asolkar (seed treatment and/or plant treatment). Therefore, the ordinarily skilled artisan would expect that mixing of Asolkar’s seed treatment composition with the fertilizer of Taganov would be successful at providing nutrients to seeds/plants treated therewith while simultaneously providing insecticidal activity. For modification (1), a case for obviousness exists when some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention (see MPEP 2143 I(G)).
The ordinarily skilled artisan would have been further motivated to make modification (2) because Pitts teaches that Burkholderia sp. A396 has been shown to control wireworm attack on tubers, and additionally because Taganov teaches that CPFAPH promotes plant growth and yield when applied to seeds at a specific concentration. Thus, when applied in combination via treatment of seeds, the ordinarily skilled artisan would have expected Burkholderia sp. A396 to control wireworms while CPFAPH promotes plant growth and yield. Pitts establishes a baseline effective amount for Burkholderia sp. A396 in treatment of seeds for control of wireworm attack, and Taganov establishes a baseline effective amount for CPFAPH in treatment of wheat seeds for promotion of plant growth and yield. A person having ordinary skill in the art could have performed routine optimization on the amount of Burkholderia sp. A396 and CPFAPH based on these known baseline effective amounts when forming a combination of Burkholderia sp. A396 and CPFAPH in a seed treatment composition for the purpose of maximizing the resulting effects of simultaneous wireworm control and increase of plant growth and yield, and would have a reasonable expectation of success doing so based on the demonstrated success of each component in Pitts and Taganov. It is noted that, as evidenced by the instant specification, an effective amount of CPFAPH which is effective at promoting plant growth and yield also inherently promotes plant vigor (see instant specification Fig. 1 and 2 and paragraph [0016]). Therefore, upon optimization of the amount of CPFAPH for maximizing plant growth and yield in the seed treatment composition, one of ordinary skill in the art would also inherently be optimizing the amount to also be effective towards increasing plant vigor. Therefore, upon performing modifications (1) and (2), the ordinarily skilled artisan would arrive at the instant invention described in instant claims 1-7, 10-12 and 17-20.
The ordinarily skilled artisan would have been further motivated to make the modification (3) because Asolkar explicitly suggests its composition, and therefore subsequent treatment of seeds of a plant, can include the insecticides and/or plant growth promoting agents as listed above. An ordinarily skilled artisan would have a reasonable expectation of success including these components in the seed coating composition of Asolkar because Asolkar teaches them to be compatible with the Burkholderia sp. present in said composition. In performing modification (3), the limitations of claims 8-9 and 13-16 are satisfied.
Response to Arguments
Applicant’s arguments (filed on 07/23/2025) with respect to the 35 U.S.C. 112(a) rejections over claims 2-3 made in the non-final action dated 04/23/3035 have been fully considered and, based on the sufficient specification amendments submitted on 07/23/2025, the 112(a) rejection over claims 2-3 has been withdrawn.
Applicant’s arguments (filed on 07/23/2025) with respect to the 35 U.S.C. 112(b) rejections over claims 8 and 14 made in the non-final action dated 04/23/3035 have been fully considered and, based on the sufficient claim amendments submitted on 07/23/2025, the 112(b) rejection over these claims has been withdrawn.
Applicant’s arguments (filed on 07/23/2025) with respect to the 35 U.S.C. 103 rejections made in the non-final action dated 04/23/2025 over claims 1-16 in view of Asolkar and Taganov have been fully considered but are not found to be persuasive for the following reasons.
Applicant argues that because neither Asolkar nor Taganov teaches or suggests a composition that includes a fermentation product of Burkholderia species in an amount effective for control of wireworms, the combined references cannot be relied upon to establish a prima facie case for obviousness against claim 1, claim 10, or any depending claims (Remarks p. 10).
This is not found to be 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). Regarding the combination of references not teaching, suggesting, or motivating for a composition comprising a fermentation product of Burkholderia species in an amount effective for control of wireworms, the motivation to form a seed coating composition containing Burkholderia sp. A396 in an amount sufficient for control of wireworms comes from the teaching of Pitts (as addressed in the modified grounds of rejection supra), which demonstrates that Majestene®, a heat-killed Burkholderia rinojensis strain A396, is a product containing heat-killed cells and fermentation media which causes a reduction of wireworm damage to tubers when used as a seed treatment at a concentration of 1 L/100 kg (Pitts pp. 6, 8 and 26).
Applicant’s arguments (filed on 07/23/2025) with respect to the obviousness-type double patenting rejections made in the non-final action dated 04/23/3035 over (1) instant claims 1-4 and 7-16 in view of claims 1 and 8 of provisional U.S. application 17/987,584 in view of Asolkar, (2) instant claims 5 and 6 in view of claims 1 and 8 of provisional U.S. application 17/987,584 in view of Asolkar and further in view of Taganov, and (3) instant claims 1-6 and 10-12 in view of US Patent 9,526,252 in view of Taganov, have been fully considered and are persuasive due to the amendments to the claims. These rejections have been withdrawn.
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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/SOPHIA MARIE TAYLOR/Examiner, Art Unit 1616
/Mina Haghighatian/Primary Examiner, Art Unit 1616
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