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 .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 1/7/2026 has been entered.
Claims 1, 6-7, 13, and 16-25 are pending in this application.
Withdrawn rejection
The outstanding ground of rejection of claims 18 and 21 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, is withdrawn in view of the amendment to claims 1, 18 and 21 filed on 1/7/2026. However, it is noted that the amended claims raise a different 112 issue, which is addressed hereinbelow.
35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph
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, 6-7, 13, and 16-25 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.
(1) Independent claims have been amended to recite a microbial culture component, but its recitation is ambiguous and indefinite. For example, “Bacillus spp.” is recited, followed by 5 species in parenthesis. Similarly, “Trichoderma spp.” is recited, followed by 3 species in parenthesis. “Paecilomyces spp.” is recited, followed by only one species in parenthesis. It is unclear whether the species are limiting or exemplary.
(2) Claim 21 has been rewritten as an independent claim, so “the pesticide” at line 4 is now lacking in antecedent basis.
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.
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.
Claims 1, 6-7, 13, and 16-25 are rejected under 35 U.S.C. 103 as being unpatentable over the combined teachings of CN 104782649 and CN 1276973 in view of Margolis (US 2015/0272126), Turnblad et al. (US 5,849,320), Jaasko et al. (US 2020/0085039), and IN2015DEL2890, further in view of Sapper et al.
CN 1047826491 discloses a water-based suspension seed coating agent containing three pesticides, one of them being imidacloprid (abstract; paragraph 2; paragraph 8; claim 1) for disease prevention, pest control, and low environmental impact (paragraphs 4-5, 27, 29) and also for inducing plants to develop resistance and disease tolerance to invading viruses (paragraph 30). Coating seeds of soybean, wheat, rice, corn, and many other crop plants is disclosed (paragraph 8, 25; claim 6). Additional formulation ingredients are disclosed (paragraphs 14-24; claims 4-5):
2-50 parts dispersant;
1-5 parts antifreeze such as propylene glycol, glycerol, polyethylene glycol;
0.1-4 parts anticaking agent;
0.1-6 parts suspending agent such as xanthan gum;
0.1-3 parts film forming agent such as at least one of polyvinyl alcohol or modified starch;
0.1-3 parts mildew inhibitor;
0.1-5 parts pH regulator such as citric acid;
0.5-5 parts colorant;
1-10 parts filler such as starch; and
10-80 parts deionized water.
The three-component pesticide (including imidacloprid) can comprise 9 wt% of the seed coating composition (paragraphs 34-35).
CN 12769732 discloses a biological seed coating which comprises a carrier medium such as water, polyvinyl alcohol as a film forming agent, and a natural substance such as starch, and at least one microorganism and/or secondary metabolite beneficial to plants (paragraphs 10, 17-18). The use of polyvinyl alcohol with the natural substance such as starch has the advantage of the coating agent being more tightly combined so that it does not easily peel off, long survival rate of the seeds and beneficial microorganisms, and increased crop yield (paragraph 9). Preferable ratio of polyvinyl alcohol to starch is 1:1 to 1:5 (paragraph 17). 1-5 wt% film forming agent and up to 20 wt% formulation aids is disclosed, with the balance being the carrier medium (paragraph 25). Weight/volume ratio of the film former to the beneficial microorganism is 1:1 to 1:20 (paragraph 23). Coating agent can comprise 0.5 to 2.5 wt% of the seed (paragraph 27). Other formulation aids such as suspending agent (e.g., xanthan gum), antifreeze agent (e.g., glycerol), colorant, and others are disclosed (paragraphs 10, 14; claims 7, 11). Beneficial microorganisms include species selected from, inter alia, Bacillus, Trichoderma, Paecilomycea, Verticillium, Metarhizium
(paragraphs 4, 19). Selecting composition additives that do not harm the beneficial microorganisms is taught (paragraphs 24, 26). Further incorporation of chemical fungicides such as metalaxyl and insecticides such as imidacloprid in the biological seed coating agent is disclosed (paragraph 26).
Margolis (US 2015/0272126) discloses Bacillus subtilis and/or Bacillus amyloliquefaciens biological control agent and at least one fungicide for control of insects, mites, nematodes and plant disease (paragraph 11) and improved overall health of plants, including improved germination, emergence, root growth, root size, and more developed root system, crop yield, protein content, oil content, starch content, root growth, stress tolerance, plant vigor (paragraphs 105-107). Margolis’ composition is formulated with additional ingredients such as starch and its applications include application to plant seeds (paragraphs 31, 87, 110, 112, 136, 141, 159-161, 214-215; claims 10, 13), including seeds of cereals and vegetable crops (paragraph 144, 159). Drying seeds after treatment is disclosed (paragraph 160). Additional ingredients include carriers, stabilization agents, nutrients (e.g., polysaccharides), physical property modifying agents such as dispersants, adjuvants, surfactants, antifreeze agents, colorants, solvents, extenders, polymers, binder or adhesive that facilitate adherence to plant seed, antioxidants, protectants, preservatives, which many be added in individually or in combination (paragraphs 32, 82, 89-90, 94). Polyvinyl alcohol, polyvinyl acetate, and polyvinyl pyrrolidone are disclosed as formulation stickers (paragraphs 96, 157). Margolis’ at least one fungicide includes numerous well-known fungicides such as metalaxyl (paragraph 52), captan (paragraph 42), carboxin (paragraph 58). See also from paragraph 34 to 81. The biological control agent can be formulated to be present in a concentration of 105 to 1012 colony forming units (cfu) per gram of preparation (paragraph 124). Application rate of the seed treatment formulation may be varied within a “relatively wide range,” depending on the formulation concentration and the seed (paragraph 161). 0.001 to 50 g of the formulation per kg of seed or 0.01 to 15 gram of the formulation per kg of seed is disclosed (id.).
Turnblad et al. (US 5,849,320) disclose a seed coating formulation that contains a binder, plasticizer, active ingredients, and water (claim 1; see from column 2, line 36 to column 4, line 61). The binder comprises about 0.01 to 15 wt% of polymers such as polyvinyl alcohol, polyvinyl acetate, polyvinylpyrrolidone, vinylidene chloride copolymers, polysaccharides, including starches, and polyethylene oxide, which is a synonym for polyethylene glycol (claim 1; column 2, line 43 to column 3, line 12). The plasticizer component improves flexibility, spreadability, and adhesion of the seed coating, wherein improved flexibility is important to minimize chipping, breakage, or flaking during handline or sowing processes (column 4, lines 50-56). Plasticizer can be about 0.1-20 wt% of polyethylene glycol or glycerol (column 4, lines 56-61). The active ingredients that can be used with Turnblad’s seed coating include insecticides (e.g., imidacloprid), fungicides (e.g., captan, metalaxyl), and biocontrol agents such as microorganisms of the genera Rhizobium, Bacillus, Pseudomonas, Trichoderma. Additional ingredients such as fertilizer, colorant, surface active agent may be added 9claim 9). Seeds to be coated include seeds of cereals, vegetables, and fruits (column 4, lines 20-28).
Jaasko et al. (US 2020/0085039) disclose a seed adhesive mixture that can deliver seeds and beneficial additives as a unit, comprising water, polymer, diol, defoamer, and “accessory structure and compounds normally included with seeds,” including beneficial growth additives, biologically active compounds that will enhance the seed’s ability to thrive (paragraphs 20-21 and claim 1). The various additives are mixed together in a homogeneous aqueous solution and subsequently adhered to the seed, which is then dried (paragraph 21). The polymer component can be polyvinyl alcohol, which can further contain a sugar such as acacia gum (paragraph 32; see claim 6); polyvinyl alcohol comprises less than 10% of the seed adhesive mixture, e.g., 8% (claim 3; paragraph 33). 8% acacia gum is also disclosed (paragraph 33). The diol can be used to comprise approximately 0.5-10%, e.g. 3%, of the mixture (claim 1; paragraph 35). In an embodiment of Jaasko’s invention, water is added to a tank mixer and heated to 180 °F (82.2 °C), polyvinyl alcohol as the polymer is added and mixed for about one hour, defoamer is added, ethylene glycol as the diol is added, and the obtained mixture is applied to the seed, and then the treated seeds are dried (paragraphs 33-37). Jaasko’s composition improves germination (paragraphs 1, 22).
IN2015DEL2890 discloses Bacillus subtilis, Azospirillum brasilense, Rhizobium leguminosarum, and Trichoderma harzianum microbial seed coating formulations, which control seed and soil-borne infection, increase effective amount of nitrogen in plants, enhance germination and improve stress tolerance and self-life of seeds (pages 8-10, see “Detailed description of the invention” section; see also page 1, second paragraph; page 8, lines 3-8; page 14, lines 5-10; page 17, last three lines; page 18, lines 9-11). Wet form of the seed coating formulation contains the microorganism species, sticker polymer, preservatives, moisturizers, and other ingredients (claim 1; page 9, lines 24-27). Sticker or polymer can be glycerol, xanthan gum, gum acacia (page 9, last paragraph). Preservative or moisturizer can be polyethylene glycol, xanthan gum, glycerol, polyvinyl pyrrolidone (page 10, last full paragraph). Although one embodiment uses starch at 50%, xanthan gum at 1%, and gum acacia at 25% (page 12, lines 3-6), disclosure of IN2015DEL2890 is open to a broader range, wherein different amounts can be used for different microorganisms. See page 12, lines 3 and 30-33 in view of claims 1-14, which have no limits on ingredient percentages.
The article by Sapper et al. is cited to establish that corn starch is a well known starch type, representing about 65% of the global starch supply (page 2).
CN 104782649 or CN 1276973 does not explicitly exemplify a single composition that contains at least one polymer, corn starch, citric/tartaric/ascorbic acid, glycerol and/or propylene glycol, microbial culture, pesticide, and additional ingredients in the weight percentages required by the instant claims. However, CN 104782649 and the cited secondary references establish that the claimed composition ingredients are known to be used for treatment of seeds at the claim-recited percentages. CN 1276973 teaches the advantage of tight seed coating that does not easily peel off when polyvinyl alcohol is combined with starch. Further, beneficial ingredients taught by CN 1276973 include species selected from Bacillus, Trichoderma, Paecilomycea, Verticillium, Metarhizium (paragraphs 4, 19), which are the same as those recited in Applicant’s claims. CN 1276973 teaches the known combination of beneficial microbial culture and pesticide in a seed coating for seed protection, long survival rate of the seeds and microbial culture, and increased crop yield. Margolis and Turnblad et al. also teach the combination of microbial culture with or without additional chemical pesticides.
Regarding the corn starch component, although CN 1276973, Margolis, Turnblad et al., and IN2015DEL2890 teach the use of starch in seed coating formulations, corn starch is not specifically disclosed. However, as corn is the main source of starch produced worldwide at approximately 65% (Sapper et al.), it would have been obvious for the ordinary skilled artisan to use the readily available corn starch as the starch ingredient of a seed coating composition.
Claim 13 further requires 0.5-10 wt% each of gum acacia, xanthan gum, and polyethylene glycol. CN 104782649 teaches xanthan gum within the claimed amount range and Jaasko et al. teach the advantage of using acacia gum with polyvinyl alcohol in amounts that are within the claimed amount range. IN2015DEL2890 further teaches the combination of polyvinyl alcohol, gum acacia, and xanthan gum for providing a seed coating that has improved stress tolerance. Turnblad teaches the advantage of using a plasticizer such as polyethylene glycol within amounts that are within the claimed amount range to minimize chipping, breakage, or flaking of coated seeds. Thus, it would have been obvious for the ordinary skilled artisan to combine known seed coating ingredients to provide a seed coating that obtains the multiple advantages of individual ingredients.
Claims 16 and 25 require microbial load in the range of 107 to 1010 colony forming units in 100 ml of the biocoat composition. Margolis is evidence that such microbial load is well within the typical microbial load of seed coating formulations that contain beneficial microorganisms.
In sum, the prior art collectively teaches a wide range of percentages for the claim-recited seed coating ingredients, and it would have been obvious to the ordinary skilled artisan to adjust the percentages of known seed coating ingredients to provide a beneficial seed coating composition that adheres to the seed and subsequently provides the seed with protection, shelf life, improved handling, and improved growth characteristics from plants that grow from the coated seeds.
The process of claim 21 requires mixing the ingredients at the percentages readable on the prior art and adding it to a seed material followed by drying, wherein the composition is added to seed material in a range of 5-100 ml per kg (1000g) of seed.
CN 1276973 teaches that seed coating agent can comprise 0.5 to 2.5 wt% of the seed (paragraph 27), and Margolis teaches 0.001 to 50 g of the formulation per kg of seed or 0.01 to 15 gram of the formulation per kg of seed is disclosed (paragraph 161). Margolis explicitly states, “application rate of seed-dressing formulations … may be varied within a relatively wide range” (paragraph 161). The ordinary skilled artisan would have recognized that the volume of “biocoat” or microorganism-containing seed coating composition applied to seeds would depend on the microorganism concentration of the seed coating composition, final seed coat weight percentage after drying, and the type of seed. Given the wide range taught by the prior art, it would have been obvious for the ordinary skilled artisan to adjust and optimize the volume of the microorganism-containing seed coating composition at the claim-recited amounts to provide a coated seed with the multiple advantages taught by the prior art.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, because every element of the invention and the claimed invention as a whole have been fairly disclosed or suggested by the teachings of the cited references.
Applicant’s experimental results disclosed in the specification have been given due consideration in this regard, but they were deemed insufficient for the following reasons.
(1) Specification Example 1 is not directed to the currently pending claimed invention. Example 1 is missing the microbial culture component.
(2) Even assuming arguendo that there were evidence of nonobviousness with respect to the tested compositions, such evidence would not be commensurate in scope with that of the claimed subject matter. All actually tested compositions contained PVA, corn starch, citric acid, glycerol, xanthan gum, gum acacia, polyethylene glycol, and water. All claims fail to specifically require those ingredients in combination. In contrast, Applicant’s own specification admits the following, i.e., the tested ingredients are critical (annotation added):
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There is insufficient evidence of record that the results disclosed in the specification with the tested ingredients (e.g., PVA + citric) would be predictive of similar results with different ingredients (e.g., vinylidene chloride copolymer + ascorbic), particularly in view of Applicant’s admission that the tested ingredients are critical. Evidence of nonobviousness, if any, must be commensurate in scope with that of the claimed subject matter. In re Kulling, 14 USPQ2d 1056, 1058 (Fed. Cir. 1990); In re Lindner, 173 USPQ 356, 358 (CCPA 1972).
(3) Comparative data in Example 6 are noted, but a comparison against untreated seed is unpersuasive and comparison against seeds treated with only chemical pesticide is also unpersuasive.
The ordinary skilled artisan would have expected seeds treated with the inventive biocoat formulations to be more effective than untreated seeds because the treated seeds have beneficial ingredients that are known to provide improved germination, emergence, disease protection, yield, and plant health such as vigor, as fully discussed above. Similarly, the ordinary skilled artisan would have also expected seeds treated with the inventive biocoat formulations to be more effective than seeds treated with only chemical pesticide because the treated seeds have beneficial ingredients that are known to provide improved germination, emergence, disease protection, yield, and plant health such as vigor, as fully discussed above.
(4) The declaration filed on 7/29/2025 does not establish the tested composition ingredients and percentages. For an invention such as here that requires specific ingredients and specific percentages, failure to establish that the tested composition is within the scope of the currently claimed invention renders the declaration ineffective as evidence of nonobviousness.
For these reasons, the claimed invention as a whole would have been obvious to the ordinary skilled artisan, and the results disclosed in the specification and declaration filed on 7/29/2025 fail to overcome the evidence of obviousness.
Applicant’s arguments filed on 1/7/2026 have been given due consideration but they were deemed unpersuasive for the following reasons.
Applicant argues that CN 1276973 “merely discloses formulations wherein non-sporulating microorganisms are used.” The Examiner cannot agree. Example 8 of CN 1276973 clearly uses a sporulating microorganism, Bacillus subtilis (paragraph 50), in addition to sporulating microorganisms disclosed in paragraphs 4 and 19: Trichoderma, Paecilomycea, Verticillium, Metarhizium.
Applicant argues that the formulations of the claimed invention “comprise a consortium of sporulating bacterial strains with distinct mode of action.” However, it must be noted that there is not one single claim that requires a specific mixture of several microorganisms. Applicant is arguing a feature that is not required at this time.
Applicant criticizes CN 104782649 for centering on a combination of pyraclostrobin, nymidine, and imidacloprid, but this criticism ignores the seed coating teachings of CN 104782649 as fully discussed above and ignores the broad scope of “at least one pesticide” component of Applicant’s independent claims and more than 90 compounds and “combinations thereof” recited in claims 17 and 18.
Applicant criticizes Sapper again as being not relevant to the claimed invention. The Examiner cannot agree. To use the starch taught by the prior art, one having ordinary skill in the art would need to select a starch type, e.g., corn starch, potato starch, rich starch, etc. Because the prior art does not explicitly specify the starch type, it would have been obvious for the ordinary skilled artisan to use the starch that is most widely available, i.e., corn starch, which represents about 65% of the global starch supply.
Applicant argues that the rejection relies on improper hindsight, but the obviousness rationale set forth herein clearly relies on teachings and suggestions of the prior art for the full detailed reasons set forth above.
For the foregoing reasons, all claims are rejected and no claim is allowed.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to JOHN PAK whose telephone number is (571)272-0620. The Examiner can normally be reached on Monday to Friday from 8:30 AM to 5 PM.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's SPE, Fereydoun Sajjadi, can be reached on (571)272-3311. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
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/JOHN PAK/Primary Examiner, Art Unit 1699
1 Machine translation is provided herewith. Paragraph references are to the machine translation.
2 Machine translation is provided herewith. Paragraph references are to the machine translation.