DETAILED ACTION
Previous Rejections
Applicant’s arguments, filed October 10, 2025, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on October 10, 2025 and November 15, 2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Status
Claims 12, 21, 22, 25-29, 34-37, 40, 41, 44-52 and 65-70 are withdrawn.
Claims 1, 5, 8, 9, 17-20, 63, and 64 are examined here-in.
Claim Rejections - 35 USC § 103 (Maintained)
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 non-obviousness.
Claims 1, 5, 8, 9, and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Frodyma (US 2016/0106110 A1, of record).
Frodyma teaches compositions comprising one or more microorganisms and one or more additional ingredients for treating plants and soil (abstract).
Frodyma teaches the composition comprises one or more agriculturally beneficial microorganism, one or more germinants, and a carrier (paragraph 0044). Frodyma teaches the composition may be in the form of a liquid (paragraph 0044). Frodyma teaches the carrier can be water (paragraph 0048).
Frodyma teaches the microorganism can be spore-forming bacteria, including Bacillus and Clostridium, among others (paragraph 0054). Of the Bacillus, Frodyma teaches the strains of Bacillus amyloliquefaciens, Bacillus cereus, Bacillus firmus, Bacillus megaterium, Bacillus mycoides, and Bacillus thuringiensis among others paragraph 0054).
Frodyma teaches the composition may include flavonoids, such as quercetin (paragraphs 0089 – 0092, paragraph 0254). Frodyma teaches that flavonoids act as plant signal molecules (paragraph 0042) which are biologically active ingredients that provide agricultural benefit to the plant when applied with microorganisms (paragraph 0013).
Frodyma teaches that the composition may be applied to the soil simultaneously or sequentially with one or more microorganisms (paragraph 0218).
Frodyma does not teach a specific embodiment having all of the claimed elements. However, claims 1, 5, 8, 9, and 17-20 are rendered prima facie obvious over the teachings of Frodyma, because it is prima facie obvious to combine prior art elements according to known methods, in order to yield predictable results. In the instant case, all the claimed elements (e.g., quercetin, microorganism, water) were known in the prior art (e.g., plant growth) and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art (MPEP 2143(I)(a)). A person of ordinary skill in the art would have been motivated to apply a composition containing quercetin and one or more microorganisms to plants because Frodyma teaches that quercetin provides an agricultural benefit to plants when applied with microorganisms (paragraph 0013).
Frodyma’s teaching to include quercetin and a carrier in a composition for treating plants (abstract, paragraphs 0044, 0089 – 0092, 0254) reads on instant claim 1 where A1 and A2 are O, R1 is -Xp, wherein -Xp is a substituted benzene ring with Y3 and Y4 as -OH, R2 is -OH, R3 and R5 are H, and R4 and R6 are -OH. Frodyma teaches that quercetin should be included in an amount that causes or provides a beneficial effect (paragraphs 0020, 0064).
Instant claim 1 recites “wherein the liquid composition comprises an amount of the compound or salt thereof that is at least partially effective to produce: (a) an increased level of soluble orthosphosphate of at least about 20% after contacting the amount of the compound or salt thereof to a live microbe…”. The limitation of producing increased soluble orthophosphate after contacting a live microbe is an intended use limitation. Frodyma’s teaching for a composition which includes quercetin in an amount that causes or provides a beneficial effect, wherein phosphate solubilization and nitrogen fixations are examples of possible biological activity (paragraphs 0020, 0022, 0064) appears to be capable of meeting the intended use of producing effect (a) after contacting a live microbe because Frodyma teaches that quercetin may be expected to cause such a result.
Frodyma’s teaching that water can be the carrier (paragraph 0048) reads on instant claim 5.
Frodyma’s teaching of quercetin in a composition for treating plants (abstract, paragraphs 0044, 0089 – 0092, 0254) reads on instant claims 8 and 9 where, for claim 8 the compound or salt is of Formula Ia, where R2, R4, R6, Y3, and Y4 are -OH, and for claim 9, the compound is the first structure shown.
Frodyma’s teaching that the composition may be applied to the soil simultaneously or sequentially with one or more microorganisms (paragraph 0218) reads on instant claim 17 because regardless of the timing of application, a live microbe may already be present in soil. A person of ordinary skill in the art would be motivated to apply the composition to soil that already has live microbes present because sterilizing the soil to remove live microbes would require additional steps and costs, therefore, it would be advantageous to apply the composition to soil which has live microbes.
Frodyma’s teaching that the microorganism can be spore-forming bacteria, including Bacillus and Clostridium, among others (paragraph 0054) reads on instant claims 18 and 19.
Frodyma’s teaching that the live microbe can be selected from the strains of Bacillus amyloliquefaciens, Bacillus cereus, Bacillus firmus, Bacillus megaterium, Bacillus mycoides, and Bacillus thuringiensis among others paragraph 0054) reads on instant claim 20.
Claims 63 and 64 are rejected under 35 U.S.C. 103 as being unpatentable over Frodyma (as cited above) and further in view of Kupatt (US 2021/0037717 A1, of record).
Frodyma’s teachings are discussed above.
Frodyma does not teach the liquid composition is a suspension concentrate or that quercetin is in the amount of 10 – 30% w/w.
Kupatt teaches the missing elements of Frodyma.
Kupatt teaches a composition containing quercetin for the treatment of stress in plants (abstract).
Kupatt teaches quercetin in the amount of 10 to 75% by weight (paragraphs 0073 – 0074). Kupatt teaches the composition may be in the form of a suspension (paragraph 0092).
The combination of Frodyma and Kupatt renders claims 63 and 64 prima facie obvious as combining prior art elements according to known methods in order to yield predictable results (MPEP 2143(I)(a). A person of ordinary skill would have been motivated to modify the teachings of Frodyma with the teachings of Kupatt because Kupatt teaches quercetin is a compound that can alleviate stress in plants (abstract). Frodyma and Kupatt teach each of the claimed elements (e.g., quercetin, microorganism, water) were known in the prior art (e.g., plant growth) and one skilled in the art could have combined the elements as claimed (Frodyma’s composition with quercetin, a microorganism and water with Kupatt’s composition containing quercetin) by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art (MPEP 2143(I)(a)).
Frodyma’s teaching to include quercetin and water in a composition for treating plants (abstract, paragraphs 0044, 0048, 0089 – 0092, 0254) in combination with Kupatt’s teaching that a composition containing quercetin may be in the form of a suspension (paragraph 0092) reads on instant claim 63.
Kupatt’s teaching of quercetin in the amount of 10 to 75% by weight (paragraphs 0073 – 0074) overlaps on the range of 10 – 30% w/w as recited in instant claim 64. Claimed ranges that overlap teachings of the prior art are prima facie obvious according to MPEP 2144.05(I).
Examiner’s Reply to Attorney Arguments Dated October 10, 2025
Applicant argues that Frodyma does not disclose or suggest all the limitations in claim 1 (Remarks page 19). The Examiner disagrees because, as discussed in the body of the rejection above, Frodyma’s teaching to include quercetin and a carrier in a composition for treating plants in an amount that causes or provides a beneficial effect (abstract, paragraphs 0020, 0044, 0064, 0089 – 0092, 0254) reads on instant claim 1. Notably, Frodyma teaches that phosphate solubilization and nitrogen fixation are examples of biological activity that would be expected to result from the inclusion of biologically active agents in a composition (paragraph 0022). This teaching reads on the recitation of claim 1 “wherein the liquid composition comprises an amount of the compound or salt thereof that is at least partially effective to produce: (a) an increased level of soluble orthophosphate of at least about 20%… or (b) an increased level of nitrogen fixation … or (c) a combination of (a) and (b).” First, as discussed in the body of the rejection above, this limitation is intended use and Frodyma’s teaching for a composition including quercetin appears to be capable of meeting this intended use. Second, a person of ordinary skill in the art would have the expertise to determine an amount which results in the desired increase of soluble orthophosphate and/or nitrogen fixation through routine experimentation, which is prima facie obvious according to MPEP 2144.05(II)(a). Said differently, Frodyma teaches that phosphate solubilization and nitrogen fixation are examples of biological activity that would be expected to result from the inclusion of biologically active agents in a composition (paragraph 0022), therefore a person of ordinary skill in the art would have the expertise to determine an amount of active agent required to produce the desired results.
Applicant alleges unexpected results, stating “the present application provides robust and statistically significant experimental results demonstrating that the claimed compositions produce unexpected and synergistic effects” (Remarks page 20).
As an initial matter, the Examiner notes that a proper side-by-side comparison to the closest prior art as required by MPEP 716.02(e) does not appear to have been made. Applicant points to the Examples and Figures of the instant application and generally states that Frodyma “fails to provide any evidence or suggestion that the claimed combination of compounds and microorganisms would produce enhanced phosphate solubilization, increased nitrogen fixation, or improved plant biomass” (Remarks page 20). The Examiner disagrees with the general characterization of Frodyma’s teachings because Frodyma teaches that phosphate solubilization and nitrogen fixation are examples of biological activity that would be expected to result from the inclusion of biologically active agents, such as quercetin, in a composition (paragraphs 0020, 0022, 0254). At present, there is no comparison between Applicant’s Examples and Figures with any prior art.
Furthermore, assuming purely arguendo that a proper side-by-side comparison was made, even then the Examiner would disagree that the combination of quercetin and live microbe results in synergism because presently Example 1 is the only example which compares a condition with quercetin, with a condition containing live microbe, then with a condition containing both quercetin and live microbe. The comparisons in Example 1 appear to show that the combination of quercetin and live microbe yields more soluble phosphate than either condition alone, however there is no indication that this effect is not purely additive rather than synergistic. Examples 2, 5, and 7 appear to show that the combination of live microbe and quercetin yields more soluble phosphate than live microbe alone, however, there is no comparison with a quercetin alone condition. At present, Applicant has not fully explained the significance of the data in arriving at the conclusion that results are unexpected as required by MPEP 716.01(c)(II) and 716.02(b)(II). Applicant does not explain how the combination of live microbe and quercetin results in the alleged synergistic result (as opposed to an additive one). As such, it is not clear to the Examiner how Applicant’s argument is supported by the proffered evidence.
Finally, and purely arguendo, even if Applicant has in fact shown unexpected results (of which the Examiner is not persuaded at this time), the Examiner notes that Applicant’s alleged showing is in regards to the specific combination of compound and bacteria which does not appear to be “reasonably representative” of the claims in their current scope. See MPEP 716.02(d). The Applicant has allegedly demonstrated unexpected and synergistic results with regards to phosphate solubilization (Examples 1, 2, 5, 7), or nitrogen fixation (Examples 3, 6), or plant biomass (Example 4) from a combination of Bacillus megaterium and quercetin(Example 1), a sample of soil-inoculated cultures and quercetin (Example 2), Azotobacter vinelandii and quercetin (Examples 3 and 6), wheat seeds with quercetin or 14 other compounds (Example 4), Bacillus megaterium and compound Id (quercetin is an example of compound Id per instant specification pages 11 and 12, Example 5), and corn plants with compound Id (quercetin is an example of Id per instant specification pages 11 and 12, Example 7). In brief, if unexpected results are shown, it would only have been shown for a specific combination of live microbe (Bacillus megaterium or Azotobacter vinelandii), compound (quercetin or compounds of Example 4), or plant (wheat or corn) (Examples 1 - 7). It is unclear that a composition containing the specific combination of live microbe, compound, and plant would be reasonably representative of compositions containing other live microbes, compounds, or plants thereby falling within the broader scope of what is presently claimed.
Applicant argues that Frodyma does not teach the combination of elements that result in the synergistic effects demonstrated in the instant application (Remarks page 20). Applicant argues that because “the claimed combination produces a result greater than the sum of its parts” that it “rebuts the prima facie case of obviousness” (Remarks page 21). Applicant argues that the combination of quercetin and microorganisms demonstrates synergy (Remarks page 21). The Examiner would like to point out that a live microbe is not included in the composition according to independent claim 1, but in the soil as per dependent claim 17. Therefore, the alleged unexpected results from a combination of a composition including quercetin and a live microbe do not read on the instant claim as written.
Applicant argues that Frodyma “discloses a vast number of possible combinations and permutations which would require undue experimentation to arrive at the claimed compositions” (Remarks page 21). The Examiner disagrees because according to MPEP 2123, patents are relevant as prior art for all that they contain and nonpreferred or alternative embodiments constitute prior art. Therefore, although Frodyma has many teachings, the large number of teachings does not detract from their specificity in teaching the claimed ingredients for use in a composition. Further, Applicants are reminded that a skilled artisan is not an automaton, but a person having ordinary skill in the art of formulating biostimulant compositions, i.e. a synthetic chemist of PhD, and is capable of fitting teachings of multiple prior art documents together like pieces of a puzzle. See MPEP 2141.03. Therefore, a skilled artisan would be highly capable of selecting quercetin and a live microbe from the teachings of Frodyma to include in a biostimulant composition.
Applicant argues that the teachings of Kupatt do not remedy the alleged deficiencies of Frodyma (Remarks page 22). The Examiner disagrees, because as discussed in the body of the rejection above, Kupatt’s teachings are relied upon for quercetin in the amount of 10 to 75% by weight (paragraphs 0073 – 0074) and that the composition may be in the form of a suspension (paragraph 0092). Kupatt teaches the missing elements of Frodyma. Although the Applicant argues that Frodyma does not teach each of the limitations of instant claim 1, namely the limitation of “wherein the liquid composition comprises an amount of the compound or salt thereof that is at least partially effective to produce: (a) an increased level of soluble orthophosphate of at least about 20%… or (b) an increased level of nitrogen fixation … or (c) a combination of (a) and (b)” as discussed above, this limitation is intended use and Frodyma’s teaching for a composition including quercetin appears to be capable of meeting this intended use. Frodyma’s teaching to include quercetin and a carrier in a composition for treating plants in an amount that causes or provides a beneficial effect, which can be increased phosphate solubilization and nitrogen fixation (abstract, paragraphs 0020, 0022, 0044, 0064, 0089 – 0092, 0254) reads on instant claim 1 because each of the claimed components are named and the composition appears to be capable of meeting the intended use.
For these reasons, the 35 U.S.C. 103 rejection is maintained.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Toriana N. Vigil whose telephone number is (571)270-7549. The examiner can normally be reached Monday - Friday 9:00 a.m. - 5:00 p.m. EST.
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/TORIANA N. VIGIL/Examiner, Art Unit 1612
/FREDERICK F KRASS/Supervisory Patent Examiner, Art Unit 1612