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 .
Claim Status
Amendment entered on 08/04/2025 is acknowledged. Applicant has cancelled claims 2-9 and added claims 11-14 as new claims.
Therefore, claims 1, 10-14 are pending and are examined in this office action.
Rejection that are withdrawn
Objection to specification is withdrawn in light of applicant’s amendment of specification page 1 paragraph 003 to state “Armillaria”.
Objection to claim is withdrawn in light of applicant’s amendment of claim 1 by separating steps by a line indentation.
35 USC § 112- Indefiniteness rejection is withdrawn in light of applicant’s amendment of claim 1 by replacing the “Amillariella” with Armillaria.
35 USC § 112- Indefiniteness written description rejection is withdrawn in light of applicant’s amendment of claims to recite the soaking time for Quercus acutissima bars to be 5 hours, to recite the fermentation inoculation substrate and growth promoting solution is prepared with specific procedure of fermentation and spraying with B. pumilis, and to recite the specific method of cultivation of seed bulbs and finished G. elata.
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.
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, 10-14 are rejected under 35 U.S.C. 103 as being unpatentable over Park et al. (Published 2012, Hort. Environ. Biotechnol. 53(5):415-420), and further in view of Kumar et al.’2011 (Published 2011, WSU Horticulture and Landscape Architecture), and further in view of Kumar et al. (Published online: 2020, Microbiological Research 242: 126616), and further in view of Tsavkelova et al. (Published 2016, Plant Growth Regul. 80:79–91 DOI 10.1007/s10725-016-0155-1), and further in view of Ryeol et al. (Korean Patent Publication number: KR 20130087768 A, Date published: 2013), and further in view of Kyu et al. (Korean Patent Publication number: KR 101591816 B1, Date published: 2016), and further in view of Kyu et al.’1 (Kyu et al. and Kyu et al.’1 belongs to same art of KR 101591816 B1 with two translations hence are included and pages are references to specific translations) and further in view of Hung et al. (Document ID: TW M587894 U, Date Published: 12/21/2019) and further in view of Jun et al. (Korean Patent Publication number: KR 20180065820 A, Date published: 06/18/2018).
Following analysis is modified since applicant has added new limitation in claim 1 for sowing G. elata seeds and Mycena purpureofusca spawn pieces in three soil layers (see newly added step 5 and 6). Therefore, the rejection has been made final.
Claims are drawn to an organic planting method of Gadobrstrodia elata, comprising the process of mycelia colonized material preparation using cutting branch of Quercus acuitissima into bars, soaking the bars in boiling water and a growth promoting solution to obtain treated bars, putting A. mellea spawns and inoculation substrate into fish opening of the bars to obtain a mycelia colonized material; wherein the growth promoting solution and inoculation substrate is prepared by cutting up fresh G. elata stalk spraying with B. pumilus suspension and conducting fermentation culture. Claims are drawn to sowing G. elata seeds and Mycena purpureofusca spawn pieces in three soil layers to obtain seed bulbs and G. elata.
Regarding claim 1, Park et al. teaches a method of planting G. elata, the method
comprising the process of mycelia colonized material preparation: wherein the microbial inoculums of A. mellea were prepared as the mycelia were freshly grown on Potato Dextrose Agar plates at 27oC for two weeks which were then transferred to 100 mL of the Fungal Growth Medium (FGM; with glucose, yeast extract, glutamic acid, biotin, thiamine etc. The culture was incubated in a 250 mL Erlenmeyer flask at 24oC on a rotary shaker incubator at 100 rpm for another two weeks.
The cultures were then homogenized at 13,000 rpm using a homogenizer and 5 mL of the homogenized culture was used as inoculum for further experiments (page 416, left last and right first paragraph).
Wherein the Five ml of homogenized inoculum was applied onto mycelia culture (MC) medium and then incubated at 27oC in the dark for two to three weeks until the fungal hyphae were fully spread throughout the medium.
Park et al. teaches their method further comprises for A. mellea inoculation, four to five small branches of Q. acutissima (7.5-8.5 cm in length and 0.8-1.0 cm in diameter) were placed on the MC medium and then incubated at 27oC in the dark for six to eight weeks until rhizomorphs started to appear on the surface of small branches (page 416, left paragraph 2). The rhizomorphs induced on small branches of Q. acutissima after inoculation with A. mellea (see image below). The results in image also showed the protocorms at different sites of the branches. Thus the making a notch or a fish scale opening would be within the skill of art to make notch for inoculation and production of immature tubers of G. elata.
Furthermore, cutting out fish scale openings on the bars to obtain bars with the fish scale openings would be within the scope of an ordinary skilled in the art. Since Kumar et al.’2011 teaches grafting in oak is successful method in oak tress (page 17, table 1) such as Quercus acutissima. The size of the graft as showed in the Figure 18, -20 are equivalent to the fish scale opening recited by applicant.
Park et al. teaches Among the four Quercus species, Q. acutissima provided the best nutrient sources for seed germination (page 417, left paragraph 2).
Park et al. teaches colonization of the seed by the appropriate fungal partners is therefore a prerequisite for its successful establishment in nature and in field (page 419, left paragraph 1).
Park et al. teaches in the higher temperature (i.e. 24oC and 27oC) the growth of immature tubers of G. elata on small branches of Quercus acutissima inoculated with Armillaria mellea were higher (see figure 5 below).
Park et al. does not teach soaking the Q. acutissima bars with growth promoting solutions comprising B. pumilus.
However, the growth promoting ability of B. pumilus was known in the art. Kumar et al. teaches Bacillus pumilus strain JPVS11 showed plant growth properties such as IAA, 1-aminocyclo propane-1-carboxylicacid (ACC) deaminase activity, P-solubilization, proline accumulation and exopolysaccharides (EPS) production (page 1, Abstract) and biological control against soil born pathogen (page 2, left last paragraph). Furthermore, Tsavkelova et al. teaches Bacillus pumilus produces IAA (page 83, left paragraph 1) wherein the maximal IAA production was on OD600 of 0.9 ± 0.07 (see Table 2). Tsavkelova et al. teaches culture of Bacillus pumilus promoted seed germination (page 85, right paragraph 1, see Table 4 below). Tsavkelova et al. teaches Bacillus pumilus actively colonized the surface of the seeds, formed microcolonies, and penetrated inside the plant tissues as endophytes (page 89, left paragraph 3).
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Furthermore, Kyu et al. teaches method of preparation of G. elata Blume Fermentation Extracts using strains containing useful microorganisms with increased polyphenols, flavonoids, DPPH radical scavenging activity, active oxygen inhibition etc. Kyu et al. teaches fermentation extracts are used in many areas (page 1, Abstract). Kyu et al. claim 1 teaches method of preparing the G. elata fermented extract. Kyu et al. teaches measuring flavonoids, polyphenols, survival rate of 90% viable cells, and measuring reactive oxygen species (ROS) (pages4-5). Kyu et al. teaches their method further include sterilization (page 5, paragraph 4).
Ryeol et al. teaches hot water extraction of chopped G. elata using a 80% ethanol solution (page 3, Example 1). Ryeol et al. teaches concentration in vacuo to dryness (page 3, comparative Example 1). Ryeol et al. teaches different steps of producing the composition which include chopping, hot water extraction, natural evaporation, removing impurities and heated evaporation to produce the chemical (pages 4-5). Ryeol et al. teaches their method removes the impurities as mixing ratio of water with impurities from 0.1 to 0.5:1 by weight ratio.
Regarding fermentation culture (step 6), Kyu et al.’1 teaches fermentation extraction at 20-45oC for 1-12 days (i.e. 45oC for 48 hours) (page 1, Claims). Regarding treatment with B. pumilus for 2-3 hours and specific suspension ratio in each spray that would have been obvious to try to get better fermentation result. Furthermore, Tsavkelova et al. teaches an aliquot of 0.5 ml (108 CFU ml-1) of aseptically rinsed bacterial culture was added to the surface. (page 81, right last paragraph). For microbial inoculums preparation Park et al. teaches the culture was incubated in a 250 mL Erlenmeyer flask at 24oC on a rotary shaker incubator at 100 for two weeks, which was later homogenized (page 416, right paragraph 1).
Regarding B. pumilus suspension with specific OD6oo value, Tsavkelova et al. teaches B. pumilus produces IAA (page 83, left paragraph 1) wherein the maximal IAA production was on OD600 of 0.9 ± 0.07 (see Table 2).
Regarding hot dip extraction, Kyo et al.’1 teaches extracting at 30 to 90 ° C for 4 to 12 hours (page 1, claims).
Regarding hot dip extraction with ethanol Ryeol et al. teaches hot water extraction of chopped Gastrodia elata using an 80% ethanol solution (page 3, Example 1). The recited specific consumption ration would have been the measured property of the reaction.
Regarding moist heat sterilization, Kyo et al.’1 teaches when the reflux cooling method is used, water and ethanol may be independently arranged and injected into the sample at the same time (page 2, paragraph 1). Kyo et al.’1 teaches repeated extraction in a reflex condenser by adding water (page 4, paragraph 10). Kyu et al.’1 teaches their method further include sterilization (page 5, paragraph 4). Kyo et al.’1 teaches dewatering to prepare a dehydrated gel (page 1, claims). Kyo et al.’1 teaches drying at 40 to 70oC (i.e. 50oC). The specific water content in the inoculation substrate would have been obvious to try for lowest water content.
Regarding the mass ratio, the specific mass ratio of A. mellea spawns and the inoculation substrate would have been obvious to try among different ratios to be effective for treatment.
Regarding the specific time of soaking the bars in boiling water and cooling the bars and soaking bars in the growth promoting solution for 12h would have been obvious to try because Park et al. teaches in the higher temperature (i.e. 24oC and 27oC) the growth of immature tubers of G. elata on small branches of Quercus acutissima inoculated with A. mellea were higher (see figure 5 above).
Although the bars length and diameter are different it would have been obvious to try larger diameter bars obtained from the different parts of the Q. acutissima, since Park et al. teaches Q. acutissima was determined to be the best organic resource for seed germination medium for G. elata and colonization of Armillaria mellea (page 415, Abstract).
Therefore specific water content in moist heat sterilization, the Annillaria mellea spawns and the inoculation substrate mass ratio would have been empirically determined and bars length are optimization of process parameters. According to section 2144.05 of the MPEP, “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”).
A particular parameter must first be recognized as a result-effective variable, i.e., a variable, which achieves a recognized result, before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). Prior art teaches smaller size of bars, requirement of specific water content in moist heat sterilization and specific mass ration of A. mellea spawn and inoculation substrate, therefore, determining the specific size of bars, mass ratio and specific water content are routine experimentations.
Regarding planting of the Gastrodia elata seeds to produce Gastrodia elata seed bulbs and planting the Gastrodia elata seed bulbs to produce finished product of Gastrodia elata, Hung et al. teaches G. elate cultivation system wherein the cultivation comprise placing a fungus in a broad-leaved tree branch cut with a fish scale mouth (page 2, paragraph 3). Hung et al. teaches first cultivation unit G. elate cultivation system comprise placing seed in the cut position of the wood section of the first fungus layer and cover it with soil (sand or peat soil) to reduce the wood section gap and air (page 3, second to last paragraph). Hung et al. teaches in order to save planting space and increase the yield of Gastrodia elata, a second cultivation unit is further disposed above the first cultivation unit. The second cultivation unit includes a second soil layer and second fungal layer disposed above the second soil layer and the second soil layer is provided with peat soil for planting Gastrodia elata. Hung et al. teaches there are plurality of wood segments infected by Armillaria mellea; wherein the wood segments may be lime, chestnut, hazel or birch (page 3, paragraph 8). Therefore it would have been obvious to add third soil layer to further increase yield of Gastrodia elata and planting space.
Regarding sowing Gastrodia elata seeds and Mycena purpureofusca spawn pieces in first and second soil layer, Park et al. teaches Mycena species has successful symbiotic germination of G. elata seeds in the field (page 415, last paragraph) wherein Q. acutissima inoculated with Mycena osmundicola has higher percentage of G. elata sed germination (page 417, left paragraph 2, see Figure 1 below). Furthermore, Park et al. teaches G. elata does not have a strong specificity to the fungi of family Mycenaceae at the germination stage showed by G. elata in several studies which showed ten other fungi species in four genera isolated from different species of orchids were also capable of promoting seed germination. Therefore it would have been obvious to try other species of Mycenacea species leading to the promoting seed germination by G. elata using the Mycena purpureofusca.
Furthermore, for example Jun et al. teaches Mycena purpureofusca enhanced the germination rate of Gastrodia elata seeds, and length extension and tentillium formation of a protocorm which is a germinated body of Gastrodia elata seeds are promoted (page 1, last paragraph). Jun et al. teaches M. purpureofusca enhances mycelium growth even at a low temperature, thereby having high usability (page 1, last paragraph).
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Therefore it would have been obvious to a skilled in the art before the effective date of filing of the invention from teaching suggestions and motivation of Park et al. to develop a method of planting of G. elata comprising process of mycelial colonized material preparation using the branch of Quercus acutissima as bars, making a small openings as fish scale openings as taught by Kumar et al.’2011 in oak like Quercus acutissima, furthermore soaking the bars with the growth-promoting solution in hot water and putting A. mellea spawns and an inoculation substrate to obtain the mycelia colonized material. Furthermore, combining the teaching of Kumar et al. and Tsavkelova et al. to use specifically B. pumilus as growth promoting and biological control agent and teachings of Kyu et al. and Ryeol et al. for hot extraction of fermented material without impurities that would have high viability of living cells and growth promoting compounds to obtain the inoculation substrate. Furthermore, combining teachings of Hung et al. for planting G. seeds in layers of soil and Jun et al. for using M. purpureofusca spawn pieces in soil layer to increase germination rate of the G. elata.
Regarding claim 10-12, Park et al. teaches for A. mellea, four to five small branches of Q. acutissima (7.5-8.5 cm in length and 0.8-1.0 cm in diameter) were placed on the MC medium and then incubated at 27oC in the dark for six to eight weeks until rhizomorphs started to appear on the surface of small branches (page 416, left paragraph 2).
Although the bars length and diameter are different it would have been obvious to try larger diameter bars obtained from the different parts of the Q. acutissima, since Park et al. teaches Q. acutissima was determined to be the best organic resource for seed germination medium for G. elata and colonization of Armillaria mellea (page 415, Abstract).
The size of the bars each of 8-10 cm in diameter can be empirically determined and is an optimization of process parameters. According to section 2144.05 of the MPEP, “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”).
A particular parameter must first be recognized as a result-effective variable, i.e., a variable, which achieves a recognized result, before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). Prior art teaches smaller size of bars, therefore, determining the specific size of larger diameter and length is routine experimentation.
Regarding claims 13, Park et al. teaches development of tubers along the length of the bars (see Figure 4 above). Therefore, someone skilled in the art would have opened fish scale along the length.
Regarding claim 14, Given the size of the bulbs in Park et al. (see Figure 4 above), someone skilled the art would have maintained scale openings 2-3 cm apart.
Response to Argument
Applicant's arguments filed 08/04/2025 have been fully considered but they are not persuasive.
Applicant argues Park teaches incubating G. elata seeds with "[a] leaf-disc that was previously inoculated with M. osmundicola .. .. " (Park at page 416, col. 2). Applicant argues in Park, A. mellea was not used in the cultivation of G. elata until after protocorms of G. elata had formed. (See id.; see also, id. at page 418, col. 2 ("Based on these results, we decided that the 8th week was the optimal time to inoculate protocorms with A. mellea. Applicant argues when seeds were inoculated with M osmundicola, small branches of Q. acutissima were simultaneously inoculated with A. mellea. Applicant argues when the length of the protocorms reached to about 1.0 cm (Fig. 4A), they were placed around the rhizomorphs of A. mellea, which begun to appear on the surface of small branches of Q. acutissima 8 to 9 weeks after inoculation with A. mellea (Fig. 4B).") and page 419 at col. 2 ("in this study, a seed of G. elata was germinated with M. osmundicola and subsequent development was achieved with A. mellea .. .. ") ) (Response to Rejection, page 10 and 11, last and first paragraphs).
Applicant argues Park does not teach or suggest "putting Armillaria mellea spawns and an inoculation substrate into each fish scale opening of the bars after the growth promotion treatment to obtain a mycelia colonized material" and "spreading a first layer of mycelia colonized material on a first soil layer, sowing Gastrodia elata seeds and Mycena purpureofusca spawn pieces in the first soil layer; covering Gastrodia elata seeds and Mycena purpureofusca spawn pieces with a second soil layer; spreading a second layer of mycelia colonized material on the second soil layer, covering the second layer of mycelia colonized material with a third soil layer, and conducting cultivation to obtain Gastrodia elata seed bulbs", as currently claimed (Response to Rejection, page 11, second paragraph).
Applicant argues Park neither teaches nor suggests the use of G. elata to prepare either of (much less both of) growth-promoting solution and inoculation substrate. Applicant argues much less does Park teach or suggest that both growth-promoting solution and an inoculation substrate are prepared by "cutting up a fresh Gastrodia elata stalk to obtain materials to be treated, spraying a Bacillus pumilus suspension on the materials to be treated, and conducting fermentation culture to obtain fermented materials; using ethanol as a solvent to conduct hot-dip extraction on the fermented material, and conducting solid-liquid separation to obtain residues and an extract; conducting moist heat sterilization, drying and pulverization on the residues to obtain the inoculation substrate; and conducting concentration, reconstitution and moist heat sterilization on the extract to obtain the growth-promoting solution", as currently claimed. Applicant argues Park neither teaches nor suggests the use of G. elata to prepare both growth-promoting solution and inoculation substrate that is used as follows: "successively soaking the [Q. acutissima] bars with the fish scale openings in boiling water for 5 minutes, cooling the bars, and soaking the bars in a growth promoting solution for 12 h, to obtain bars after growth promotion treatment" and "putting Armillaria mellea spawns and an inoculation substrate into each fish scale opening of the bars after the growth promotion treatment to obtain a mycelia colonized material.. .. ", as is currently claimed (Response to rejection, page 11 and 12, last and first paragraph).
Applicant argues Tsavkelova does not cure the deficiencies of Park. Applicant assert Tsavkelova "tested the application of the strains isolated from one orchid species (D. moschatum) to promote germination of another species (D. nobile)" (Tsavkelova, page 83, col. 2). Applicant argues Tsavkelova nevertheless does not teach or suggest any of the claim elements lacking in Park. Applicant argues Tsavkelova "aimed to select the plant growth promoting rhizobacteria (PGPR) for orchid seed germination, to study plant-microbial interactions, and to determine whether there is any specificity between two species of Dendrobium plants in choosing bacterial partners." (Tsavkelova, Abstract). Applicant argues "In this study, [Tsavkelova's] purpose was to study whether there is any specificity between two Dendrobium species in choosing their bacterial partners among several previously (Tsavkelova et al. 2007b) and newly (endophytes) isolated strains." (Id., page 80, col. 1). Applicant argues Tsavkelova found, inter alia, that "cultures of Mycobacterium sp. and B. pumilus also promoted seed germination, confirming their effectiveness by stable capacity to stimulate the growth and development of the orchid seeds in vitro." (Id., page 86, col. 2) (Response to Rejection, page 12, paragraph 2).
Applicant argues claims of the instant application recite, inter alia, "spraying a Bacillus pumilus suspension on the materials to be treated" and processing materials to be treated to produce "the growth-promoting solution and the inoculation substrate"; in the instant claims, "soaking the [Quercus acutissima] bars in a growth-promoting solution" is performed, as is "putting Armillaria mellea spawns and an inoculation substrate into each fish scale opening of the bars after the growth promotion treatment to obtain a mycelia colonized material" (Response to Rejection, page 12, paragraph 3).
Applicant argues Tsavkelova (i) did not plant orchid seeds at all, but rather tested the effect of various bacteria, including B. pumilus, on orchid seed development in a test tube and (ii) contacted orchid seeds directly with B. pumilus (Response to Rejection, page 12, second to last paragraph). Applicant argues in the instant claims, in contrast to the teachings of Tsavkelova, orchid (G. elata) seeds are not contacted directly with B. pumilus.
Applicant asserts Kumar's "results suggest that Bacillus pumilus strain JPVS 11 is a potential ST-PGPB for promoting plant growth attributes, soil enzyme activities, microbial counts, and mitigating the deleterious effects of salinity in rice." (Id., Abstract). Applicant argues Kumar (i) relates specifically to rice, only once mentioning wheat, and not mentioning orchids, (ii) relates specifically to alleviating salt stress, and (ii) contacted rice seeds directly with B. pumilus. (See, e.g., Kumar, <]{<]I 2.5.1, 2.5.2). Applicant argues Kumar suggests that use of ST-PGPB (such as B. pumilus) does not significantly affect rice growth absent salt stress. (See, e.g., id. at <JI 3.3 ("The difference in plant dry weight among inoculated and non inoculated plants at O mM was not much but significant difference was recorded at high levels of salt stress .... ")) (Response to Rejection, page 14, paragraph 2). Applicant argues Thus, Kumar teaches the use of B. pumilus to improve photosynthesis in plants. Applicant argues G. elata, are achlorophyllous. (See, e.g., Park, page 415, col. 1 ("more than 100 species of orchids, including G. elata, are achlorophyllous, which means that they are completely dependent on their fungal partners throughout their lifetime")) (Response to Rejection, page 14 second to last paragraph).
Applicant argument on Dobrzynski does not provide any specific method for planting plants, much less planting orchids, much less G. elata (Response to Rejection, page 15, paragraph 20).
Applicant argues Neither Kyu/Kyu 1 nor Ryeol teach or suggest the use of an extract of G. elata in a method to plant anything, much less in a method of planting G. elata, as currently claimed. Applicant argues Kyu/Kyu 1 and Ryeol are neither in a "relevant field of endeavor" nor "reasonably pertinent" to the instant claims; accordingly (Response to Rejection, page 16, second paragraph).
Applicant argues according to Kumar 2011, monocots such as orchids cannot be grafted or budded in any case (Response to Rejection, page 16, last paragraph).
Applicant's arguments have been fully considered but they are not persuasive since:
Regarding use of A. mellea spawn and M. purpureofusca spawn, the fish scale opening were known in the art for example Kumar et al.’2011 and Hung et al. teaches fish scale openings and Park et al. and Jun et al. taches using M. purpureofusca spawn pieces in soil layer to increase germination rate of the G. elata and Hung et al. teaches planting G. seeds in layers of soil. Therefore it would have been obvious to use the method as described. Furthermore, Park et al. teaches A. mellea spawn are mycorrhizal with G elata (page 415, left first paragraph) and Mycena species has successful symbiotic germination of G. elata seeds in the field (page 415, last paragraph).
Regarding argument of use of G. elata to prepare either of (much less both of) growth-promoting solution and inoculation substrate, Kyu et al. teaches method of preparation of G. elata Blume Fermentation Extracts using strains containing useful microorganisms with increased polyphenols, flavonoids, DPPH radical scavenging activity, active oxygen inhibition etc. Kyu et al. teaches fermentation extracts are used in many areas (page 1, Abstract). Kyu et al. claim 1 teaches method of preparing the Gastrodia elata fermented extract. Kyu et al. teaches measuring flavonoids, polyphenols, survival rate of 90% viable cells, and measuring reactive oxygen species (ROS) (pages4-5). Therefore it was known in the art to use G. elata along with the microorganisms such as B. pumilis fermentation extract that would have been useful inoculation substrate and growth-promoting solution.
Regarding argument on Tsavkelova does not teach directly contacting B. pumilis, development of fermentation extract was known in the art for example Kyu et al. teaches preparing fermentation extract. Furthermore, Kumar et al. teaches Bacillus pumilus strain JPVS11 showed plant growth properties such as IAA, 1-aminocyclo propane-1-carboxylicacid (ACC) deaminase activity, P-solubilization, proline accumulation and exopolysaccharides (EPS) production (page 1, Abstract) and biological control against soil born pathogen (page 2, left last paragraph). Furthermore, Tsavkelova et al. teaches Bacillus pumilus produces IAA (page 83, left paragraph 1) wherein the maximal IAA production was on OD600 of 0.9 ± 0.07 (see Table 2). Therefore it would have been obvious to use the B. pumilis extract as the growth promoting solution in the organic method of cultivating G. elata.
Regarding argument on Kumar et al. does not teach about orchid plants. Kumar et al. teaches Bacillus pumilus strain JPVS11 showed plant growth properties such as IAA, 1-aminocyclo propane-1-carboxylicacid (ACC) deaminase activity, P-solubilization, proline accumulation and exopolysaccharides (EPS) production (page 1, Abstract) and biological control against soil born pathogen (page 2, left last paragraph). These properties would make a person skilled in the art to choose to prepare growth promoting solution.
Regarding argument on Dobrzynski the art has not been used in 103 rejection therefore the argument is moot point.
Regarding Kyu/Kyu 1 nor Ryeol et al., the art teach fermentation process as prior arts that is required by fermentation and extraction to prepare the growth promoting solution and inoculation substrate using G. elata. , Kyu et al. teaches method of preparation of G. elata Blume Fermentation Extracts using strains containing useful microorganisms with increased polyphenols, flavonoids, DPPH radical scavenging activity, active oxygen inhibition etc. Kyu et al. teaches fermentation extracts are used in many areas (page 1, Abstract). Kyu et al. claim 1 teaches method of preparing the Gastrodia elata fermented extract. Kyu et al. teaches measuring flavonoids, polyphenols, survival rate of 90% viable cells, and measuring reactive oxygen species (ROS) (pages4-5).
Furthermore, where a rejection of a claim is based on two or more references, a reply that is limited to what a subset of the applied references teaches or fails to teach, or that fails to address the combined teaching of the applied references may be considered to be an argument that attacks the reference(s) individually. Where an applicant’s reply establishes that each of the applied references fails to teach a limitation and addresses the combined teachings and/or suggestions of the applied prior art, the reply as a whole does not attack the references individually as the phrase is used in Keller and reliance on Keller would not be appropriate. This is because the test for obviousness is what the combined teachings of the references would have suggested to a person having ordinary skill in the art (PHOSITA).”
Summary
No claim is 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.
Examiner’s Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANTOSH SHARMA whose telephone number is (571)272-8440. The examiner can normally be reached Mon-Fri 8:00 AM - 5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, AMJAD A. ABRAHAM can be reached at (571)270-7058. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SANTOSH SHARMA/Examiner, Art Unit 1663
/Amjad Abraham/SPE, Art Unit 1663
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