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 .
The amendment and response filed on December 23, 2025 are received.
New claims 36-40 are added.
Claims 24 and 32 canceled.
Claims 6, 7, 9, 14-19, 19 and 20 were previously canceled by Applicant.
Claims 1-5, 8, 10-13, 17, 18, 22, 23 and 35-40 are pending in this application, claims 11-13, 17, 18 and 23 are withdrawn from further consideration (See Restriction/Election below), and claims 1-5, 8, 10, 22 and 35-40 are being examined.
Election/Restriction:
Applicant’s election without traverse of, Group II, claims 8, 10, and 35-40, in the reply filed on 12/23/2025 is acknowledged. In addition, claim 1 is amended to incorporate limitations from claim 8 (See amendment filed on 12/23/2025).
Claims 11-13, 17, 18 and 23 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions (Groups III, IV, V and VI), there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 12/23/2025.
Regarding Requirement for the Deposit of Biological material
Applicant statement identifying the deposit of biological material made under Budapest Treaty, and that all restrictions on the availability to the public of the material so deposited will be irrevocably removed upon the granting of a patent, in this application as filed as noted on paragraphs [0052] and [0067] applicant’s specification are received.
Double Patenting Rejection:
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
A)
Claims 1-5, 8, 10 and 22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 12,471,598 . Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-7 of U.S. Patent No. 12,471,598 disclose a composition comprising a fermentation product comprising a Methylobacterium strain, wherein said fermentation product is essentially free of contaminating microorganisms, and wherein the Methylobacterium strain is selected from the group consisting of LGP2021 (NRRL B-68032), LGP2022 (NRRL B-68033), LGP2023 (NRRL B-68034), …, and variants thereof (claims 1 and 2), wherein said composition further comprises at least one additional component selected from the group consisting of an additional active ingredient, an agriculturally acceptable adjuvant, and an agriculturally acceptable excipient (claim 6), a plant, plant part, or seed at least partially coated with the composition (claim 7), and method for enhancing plant production that comprises: (a) applying a composition of claim 2 to a plant, plant part, or seed; and, (b) growing the plant to at least a two leaf stage, thereby enhancing at least one plant trait selected from the group consisting of early plant growth, propagation and transplant vigor, nutrient uptake, stand establishment, stress tolerance, and nutrient utilization efficiency; wherein said trait is enhanced in comparison to an untreated control plant that had not received an application of the composition or in comparison to a control plant grown from an untreated seed that had not received an application of the composition, wherein the composition is applied to a seed (claim 4), said plant is a leafy green plant (claim 5).
In addition, the claimed intended results as disclosed by claim 22, i.e., wherein said enhanced growth results in a plant trait improvement to said plant selected from increased biomass production, decreased cycle time, increased rate of leaf growth, increased rate of root growth, and increased seed yield, would inherently present in the claimed method as disclosed by claims of U.S. Patent No. 12,471,598.
Regarding claims 4 and 5 of instant application, the specification of U.S. Patent No. 12,471,598 defines In certain embodiments, the leafy green plant is selected from the group consisting of spinach, lettuce, beets, swiss chard, watercress, kale, collards, escarole, arugula, endive, bok choy, and turnips (Specification paragraph (8)), and leafy green plant is cultivated for production of microgreens and/or herbs (Specification paragraphs (9) and (16)).
Therefore, because of the above teachings claims 1-7 of U.S. Patent No. 12,471,598 anticipates the composition and method of claims 1-5, 8, 10 and 22 of instant application.
B)
Claims 1-5, 8, 10, 22 and 35-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over 1-7 of U.S. Patent No. 12,471,598 in view of Berger (U.S. 8,181,388 B2).
The teachings of claims 1-7 of U.S. Patent No. 12,471,598 regarding claims 1-5, 8, 10 and 22 were discussed above in details.
Regarding claims 35-40 of instant application, Berger (U.S. 8,181,388 B2) teach seed treatment composition, a pesticide or a second biological agent (See for example, Specification paragraph 22), the pesticide is an insecticide, a fungicide, an herbicide, a nematicide, or a combination thereof (See for example specification paragraph 20), the insecticide or nematicide is abamectin, aldicarb, aldoxycarb, bifenthrin, carbofuran, chlorantraniliporle, chlothianidin, cyfluthrin, cyhalothrin, cypermethrin, deltamethrin, dinotefuran, emamectin, ethiprole, fenamiphos, fipronil, flubendiamide, fosthiazate, imidacloprid, ivermectin, lambda-cyhalothrin, milbemectin, nitenpyram, oxamyl, permethrin, tioxazafen, spinetoram, spinosad, spirodichlofen, spirotetramat, tefluthrin, thiacloprid, thiamethoxam, or thiodicarb (See for example specification paragraph 20), the fungicide is acibenzolar-S-methyl, azoxystrobin, benalaxyl, bixafen, boscalid, carbendazim, cyproconazole, dimethomorph, epoxiconazole, fluopyram, fluoxastrobin, flutianil, flutolanil, fluxapyroxad, fosetyl-Al, ipconazole, isopyrazam, kresoxim-methyl, mefenoxam, metalaxyl, metconazole, myclobutanil, orysastrobin, penflufen, penthiopyrad, picoxystrobin, propiconazole, prothioconazole, pyraclostrobin, sedaxane, silthiofam, tebuconazole, thifluzamide, thiophanate, tolclofos-methyl, trifloxystrobin, or triticonazole (See for example specification paragraph 21), agriculturally acceptable adjuvant (film or adhesive agent) is a polyvinyl acetate, a polyvinyl acetate copolymer, a hydrolyzed polyvinyl acetate, a polyvinylpyrrolidone-vinyl acetate copolymer, a polyvinyl alcohol, a polyvinyl alcohol copolymer, a polyvinyl methyl ether, a polyvinyl methyl ether-maleic anhydride copolymer, a wax, a latex polymer, a cellulose, an ethylcellulose, a methylcellulose, a hydroxymethylcellulose, a hydroxypropylcellulose, a hydroxymethylpropylcellulose, a polyvinyl pyrrolidone, an alginate, a dextrin, a malto-dextrin, a polysaccharide, a fat, an oil, a protein, karaya gum, jaguar gum, tragacanth gum, polysaccharide gum, mucilage, gum arabic, shellac, a vinylidene chloride polymer, a vinylidene chloride copolymer, a soybean-based protein polymer, a soybean-based protein copolymer, a lignosulfonate, an acrylic copolymer, starch, polyvinylacrylate, zein, gelatin, carboxymethylcellulose, chitosan, polyethylene oxide, an acrylamide polymer, an acrylamide copolymer, a polyhydroxyethyl acrylate, a methylacrylamide monomer, alginate, polychloroprene, or a syrup or mixture thereof (See for example specification paragraph 28), and the agriculturally acceptable excipient (carrier agent, adherent, etc.) is woodflour, clay, activated carbon, diatomaceous earth, a fine-grain inorganic solid, calcium carbonate, calcium bentonite, kaolin, china clay, talc, perlite, mica, vermiculite, silica, quartz powder, montmorillonite, or a mixture thereof (See for example specification paragraph 27).
Therefore, a person of ordinary skill in the art before the effective filing date of the invention would have been motivated to apply the teachings of Berger (U.S. 8,181,388 B2) and use the known and available additional active ingredients/agriculturally acceptable adjuvants/agriculturally acceptable excipients including pesticide, insecticide, a fungicide, an herbicide, a nematicide, or a combination thereof, taught by the prior art to be useful as coating material, etc. with a reasonable expectation of success in providing the claimed composition(s) of claims 35-40.
C)
At least claims 8 and 10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 24, 25, 26, of copending U.S. patent Application No. 18/689,160 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 24-26 and 30 U.S. patent Application No. 18/689,160 disclose a composition comprising a fermentation product comprising a Methylobacterium strain, wherein said fermentation product is essentially free of contaminating microorganisms, and wherein the Methylobacterium strain is selected from the group consisting of NLS0770, NLS0737, NLS5278, NLS5334, NLS5480, NLS5549, and variants thereof, the composition further comprises a Methylobacterium selected from the group consisting of …, LGP2021 (NRRL-B-68032), LGP2022 (NRRL-B-68033), LGP2023 (NRRL-B-68034), …, and variants thereof, said composition further comprises at least one additional component selected from the group consisting of an additional active ingredient, an agriculturally acceptable adjuvant, and an agriculturally acceptable excipient, and a plant, plant part or seed at least partially coated with the composition.
Therefore, the genus of the composition and the plant, plant part or seed disclose by claims 24, 25, 26, of copending U.S. patent Application No. 18/689,160 anticipates the claimed composition and the plant, plant part or seed of at least claims 8 and 10 of instant application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
D)
Claims 1-5, 8, 10, 22 and 35-40 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 3-7 and 9-10 of copending U.S. Application No. 18/714,612 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1, 3-7 and 9-10 of copending U.S. Application No. 18/714,612 disclose a method for enhancing plant production that comprises:(a) applying a composition to a plant, plant part, or seed, wherein the composition comprises at least one Methylobacterium selected from the group consisting …, LGP2021 (NRRL B-68032), LGP2022 (NRRL B-68033), LGP2023 (NRRL B-68034), …, and variants thereof; and,(b) growing the plant to at least a two leaf stage, thereby enhancing at least one plant trait selected from the group consisting of early plant growth, propagation/transplant vigor, nutrient uptake, stand establishment, stress tolerance, and nutrient utilization efficiency; wherein said trait is enhanced in comparison to an untreated control plant that had not received an application of the composition or in comparison to a control plant grown from an untreated seed that had not received an application of the composition, wherein the composition is applied to a seed, wherein said plant is a leafy green plant, wherein said leafy green plant is selected from the group consisting of spinach, lettuce, beets, swiss chard, watercress, kale, collards, escarole, arugula, endive, bok choy, and turnips, wherein said leafy green plant is cultivated for production and selected from a group consisting of microgreens, herbs, and combinations thereof, wherein said composition further comprises at least one additional component selected from the group consisting of an additional active ingredient, an agriculturally acceptable adjuvant, and an agriculturally acceptable excipient, and wherein said composition further comprises an agriculturally acceptable adjuvant or excipient selected from the group consisting of polyvinyl acetates, polyvinyl acetate copolymers, hydrolyzed polyvinyl acetates, polyvinylpyrrolidone-vinyl acetate copolymer, polyvinyl alcohols, polyvinyl alcohol copolymers, polyvinyl methyl ether, polyvinyl methyl ether-maleic anhydride copolymer, waxes, latex polymers, celluloses including ethylcelluloses and methylcelluloses, hydroxy methylcelluloses, hydroxypropylcellulose, hydroxymethylpropylcelluloses, polyvinyl pyrrolidones, alginates, dextrins, malto-dextrins, polysaccharides, fats, oils, proteins, karaya gum, jaguar gum, tragacanth gum, polysaccharide gums, mucilage, gum arabics, shellacs, vinylidene chloride polymers and copolymers, soybean-based protein polymers and copolymers, lignosulfonates, acrylic copolymers, starches, polyvinylacrylates, zeins, gelatin, carboxymethylcellulose, chitosan, polyethylene oxide, acrylamide polymers and copolymers, polyhydroxyethyl acrylate, methylacrylamide monomers, alginate, ethylcellulose, polychloroprene and syrups or mixtures thereof, woodflours, clays, activated carbon, diatomaceous earth, fine-grain inorganic solids, and calcium carbonate.
Therefore, claims 1, 3-7 an d 9-10 of copending U.S. Application No. 18/714,612 anticipate or make obvious the claimed composition, the plant, plant part or seed and the method for enhancing early plant growth of claims 1-5, 8, 10, 22 and 35-40 of instant application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion(s):
No claim(s) is allowed at this time.
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/KADE ARIANI/Primary Examiner, Art Unit 1651