DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05 February 2026 has been entered.
Status of the Claims
Amendments to the Claims and Arguments/Remarks filed 05 February 2026, in response to the Office Correspondence dated 07 November 2025, are acknowledged.
The listing of Claims filed 05 February 2026, have been examined. Claims 1-31 are pending. Claims 1, 7, 15, 16, 18, 21, 24, and 27 are amended and are supported by the originally-filed disclosure. No new claims have been added.
Response to Amendment
The applicant has amended claims 1, 7, 15, 16, 18, 21, 24, and 27. The amendments have been fully considered. The prior rejections are maintained where applicable and additional rejections are made as set forth below.
Claims 1, 2, 18 and 19 are no longer rejected under 35 U.S.C. § 102 as being anticipated by Mbarga, as necessitated by the amended claims. However, claims 1-31 are all now rejected under 35 U.S.C. § 103 as being obvious over Mbarga in view of Clary. New grounds of objection for claims 1, 8, 21-23, and 29, rejection of claims 16-26 under 35 U.S.C. § 112(b) and rejection of claims 1-31 under 35 U.S.C. § 112(a) have been made.
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 1-31 are rejected under 35 U.S.C. § 103 as being unpatentable over Mbarga (Mbarga, et al. A new oil-based formulation of Trichoderma asperellum for the biological control of cacao black pod disease caused by Phytophthora megakarya. Biological Control, Volume 77, 2014, Pages 15-22; 13 June 2014 publication date) in view of Clary (US20200138041A1; 07 May 2020 publication date).
Regarding claims 1 and 2, Mbarga discloses a microbial inoculant composition comprising: i) 74% (w/w) soybean oil (non-aqueous/water-immiscible solvent continuous phase); ii) 5% (w/w) Tensiofix 869 (powdered bentonite clay rheology modifier; see evidentiary references Harris et al., NZ584359A, published 30 September 2011, Example 5 reference to “the oleophilic clay Tensiofix 869”; see Ni et al., CN118696920A, published 27 September 2024, Example 1-10 S10 reference to “structure stabilizer organic bentonite (Tensiofix 869)”, wherein modification of bentonite surfaces with organic compounds shields hydrophilic silicate surfaces and creates a hydrophobic surface, thus organophilically modified bentonite is a hydrophobic organoclay that can be used for rheology control in non-aqueous dispersions); 15% (w/w) Tensiofix NTM (emulsifier); and iv) 2% (w/w) T. asperellum conidia (agricultural microbial inoculant) dispersed the soybean oil continuous phase as prepared (page 3, Table 1, Formulation 1 and page 2, section 2.2.2. Preparation of the oil dispersions).
Mbarga teaches a structural formulation of microbial inoculant composition (i.e., oil, rheology modifier, emulsifier, dispersed biological material), however, does not explicitly disclose a gram-negative bacterial inoculant composition as the specific type of microorganism.
Clary expressly teaches that methylated plant oils (e.g., methyl soybean oil) enhance the survival and stability of microbial cells, including bacteria such as Methylobacterium (¶[0075]-[0076], [0261]). A person of ordinary skill, seeking to improve the stability of an oil-based microbial formulation, such as that of Mbarga, would have been motivated to look to Clary’s teachings to address any potential viability concerns. Clary provides a reasonable expectation of success as it demonstrates that non-aqueous formulations with hydrophobic components can successfully stabilize vegetative bacterial cells.
Regarding claims 18 and 19, Mbarga discloses a method of making a stable liquid microbial inoculant composition as, “The compositions of the different oil dispersions tested are detailed in Table 1. They were prepared by first mixing the oil with the emulsifying-dispersing agent, and then adding the structural agent and the glucose and where applicable, finally the water. The T. asperellum conidia were then incorporated progressively. The mixture was homogenized...” (page 2, section 2.2.2. Preparation of the oil dispersions and page 3, Table 1, Formulation 1). Wherein, “Conidia were produced using a solid-state fermentation process with rice as the substrate. Conidia were extracted from their growth substrate using a mycoharvester, version V (http://www.dropdata.net/mycoharvester).” (page 2, section 2.1. Fungal material, paragraph 2), in which the link provided in the reference for the mycoharvester, describes the final product of the mycoharvesting process as a powdery concentrate amenable to further desiccation. The liquid microbial inoculant composition was determined to be stable as, “The conidial formulation of T. asperellum as a soybean oil-based oil dispersion mixes readily with water and the conidia remain in stable suspension for a long time.” (page 6, 4. Discussion, paragraph 2) and “In our formulation, the half-life of T. asperellum conidia is 22.5 weeks, i.e. 18 weeks longer than conidia in aqueous suspension.” (page 6, 4. Discussion, paragraph 3). Thus, claims 18 and 19 are obvious in view of Clary, wherein a substitution of a gram-negative bacterial inoculant for the microbial inoculant taught by Mbarga would have been obvious, as described above for instant claims 1 and 2.
Regarding instant claims 3-6 and 20, Mbarga teaches the use of soybean oil but does not explicitly specify that the soybean oil is esterified as methyl soybean oil.
Clary teaches the use of methylated plant oils to enhance survival and/or stability of microbial cells/spores in an inoculant composition. More specifically, “The present disclosure provides inoculant compositions comprising, consisting essentially of, or consisting of microbial cells/spores and a carrier comprising, consisting essentially of or consisting of one or more methylated plant oils (e.g., methylated soy oil).” (paragraph [0075]), in which methylated soy oil is an esterified form of soybean oil produced by transesterification.
Thus, it would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to add the missing limitation of using esterified methyl soybean oil as taught by Clary to the invention taught by Mbarga instead of soybean oil. One would be motivated to make the change by combining the teachings with a reasonable expectation of success, as esterification improves functionality of microbial formulations by lowering viscosity to provide better dispersion and enhances the stability by reducing hydrolysis risk.
Regarding instant claims 7-10, 21-24 and 29, Mbarga does not teach wherein the microbial inoculant is a Methylobacterium isolate or more specifically, selected from Methylobacterium strains ISO04 (NRRL B-50932), ISO10 (NRRL B-50938) or ISO20 (NRRL B-67743).
Clary teaches wherein, “Inoculant compositions of the present disclosure may comprise any suitable microorganism(s), including, but not limited to, agriculturally beneficial microorganisms such as diazotrophs, phosphate-solubilizing microorganisms and biopesticides. Selection of suitable microorganisms will depend upon the intended application(s). In some embodiments, inoculant compositions of the present disclosure comprise one or more microorganisms selected from the genera and species listed in Appendix A.” (paragraph [0076]), in which Methylobacterium isolates are specifically mentioned as, “…Methylobacterium (e.g., M. adhaesivum, M. aerolatum, M. aminovorans, M. aquaticum, M. brachiatum, M. brachythecii, M. bullatum, M. cerastii, M. chloromethanicum, M. dankookense, M. dichloromethanicum, M. extorquens, M. fujisawaense, M. gnaphalii, M. goesingense, M. gossipiicola, M. gregans, M. haplocladii, M. hispanicum, M. iners, M. isbiliense, M. jeotgali, M. komagatae, M. longum, M. lusitanum, M. marchantiae, M. mesophilicum, M. nodulans, M. organophilum, M. oryzae, M. oxalidis, M. persicinum, M. phyllosphaerae, M. platani, M. podarium, M. populi, M. radiotolerans, M. rhodesianum, M. rhodinum, M. salsuginis, M. soli, M. suomiense, M. tardum, M. tarhaniae, M. thiocyanatum, M. thurigiense, M. trifolii, M. variabile, M. zatmanii)…” (Appendix A, paragraph [0511]).
However, Clary does not explicitly disclose wherein the specific microbial inoculant Methylobacterium isolates are chosen from the strains ISO04, IS010, or ISO20. Although the broader genus level disclosure by Clary would encompass the species-specific strains of the instant invention claims, assuming genus-level utility (i.e., other Methylobacterium strains could work similarly), in the absence of unexpected outcomes, or novel synergies or exclusive compatibilities with agrochemicals, distinguishing ISO04, IS010 and ISO20 from other Methylobacterium strains (e.g., distinct stability enhancement or stress tolerance, or enhanced pathogen resistance when mixed with fungicides, versus other commonly used Methylobacterium strains).
Thus, it would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to add the missing limitation of using a Methylobacterium isolate as microbial inoculant, as taught by Clary, encompassing the more specific strain selection of ISO04, ISO10 or ISO20, as a substitution for Trichoderma asperellum in the invention taught by Mbarga. The substitution of one known, beneficial microbial genus (e.g., Trichoderma in Mbarga) for another (e.g., Methylobacterium in Clary) is considered obvious to a person of ordinary skill in the art seeking to provide alternative plant growth-promoting inoculants.
One would be motivated to make the change to enhance growth/yield by harnessing the unique Methylobacterium phytohormones and nutrient cycling growth promoting traits, stress mitigation activity, inhibition of wilt, root rot and leaf blight, and for compatibility and seamless integration with modern farming practices, with a reasonable expectation of success.
Regarding instant claims 9, 10, 23, and 29, Mbarga teaches a stable microbial formulation. Clary teaches wherein the isolate concentration ranges from about 1×101 to about 1×1020 colony-forming units (cfu) per gram and/or milliliter of inoculant composition (¶[0088]), wherein in some embodiments, inoculant compositions of the present in which at least 1×103, 1×107, 1×108, 1×109, 1×1010, 1×1011, 1×1012 cfu/gram or more of the microbial cells/spores therein survive when the inoculant composition is stored at 20-30° C and 10-85% or more relative humidity for a period of 24 and 28-104 weeks or more (approximately 6-24 months; ¶[0261]), thus encompassing the concentration limitations of instant claims 9, 10, 23, and 29. It would have been obvious to one of ordinary skill in the art to formulate the composition of Mbarga with the Methylobacterium of Clary at these routine and predictable concentrations to ensure efficacy upon application.
Regarding instant claims 11 and 25, Mbarga already teaches a hydrophobic rheology modifier (Tensiofix 869, an organoclay, as described above). Clary teaches the use of hydrophobic silica powders as an alternative rheology modifier in non-aqueous microbial suspensions (¶[0198]). The substitution of one known hydrophobic rheology modifier (organoclay) for another (hydrophobic silica) to control viscosity in an oil-based dispersion is a simple and obvious substitution, yielding predictable results (see MPEP § 2144.04(III)).
Regarding instant claims 12 and 13, Clary teaches inoculant compositions may comprise any suitable stabilizing compound(s), including, but not limited to, maltodextrins, monosaccharides, disaccharides, oligosaccharides, sugar alcohols, humic acids, fulvic acids, malt extracts, peat extracts, betaines, prolines, sarcosines, peptones, skim milks, oxidation control components, hygroscopic polymers and UV protectants (¶[0126]), the specific inclusion of xanthan gum is disclosed in ¶[0137], ¶[0204], ¶[0381] and ¶[0463]. It would have been obvious to include such a known stabilizer in the formulation of Mbarga to further enhance the shelf-life of the biological component, as taught by Clary.
Regarding instant claims 14 and 26, Mbarga teaches an emulsifier (Tensiofix NTM). Clary broadens the field of suitable emulsifiers by explicitly teaching the use of sorbitan fatty acid ester ethoxylates in inoculant compositions comprising (¶[0193]). Selecting this known class of emulsifiers for use in the Mbarga formulation would have been an obvious optimization to achieve desirable emulsion properties.
Regarding instant claim 15, Mbarga teaches formulations remaining homogeneous (formulations 1 and 3, page 18, section 3.1; page 21, left column, paragraph 4). Mbarga teaches microbial dispersions that remain uniformly suspended in the oil carrier (discussion section describing stable dispersions). Uniform dispersion of suspended particles is an inherent goal of oil-based suspension concentrates and would have been expected from the use of rheology modifiers and emulsifiers. Therefore, achieving homogeneous dispersion would have been an inherent property or obvious optimization. In addition, in the Examples of Clary, one skilled in the art would reasonably expect vortex mixing at a high shearing rate (Examples 2 and 3; ¶[0506] and [0507]), to result in a miscible blend with acceptable uniformity. Thus, achieving a homogenous dispersion is an inherent and expected result of the claimed process.
Regarding instant claims 16, 17 and 24, the invention disclosed by Mbarga is a reverse emulsion formulation, wherein the aqueous phase comprising the agricultural microbial inoculant (Trichoderma asperellum, used in the disclosure as a fungicide and experimental biopesticide) is dispersed as tiny droplets within the continuous oil phase (page 16-17, section 2.2.2 and Table 1). Mbarga’s oil-based dispersion formulation can be mixed with water to form an emulsion. Clary explicitly teaches forming emulsions where an aqueous phase containing bacterial cells/nutrients is combined with an oil phase in the presence of an emulsifier (Clary, Example 4, ¶[0508]). Clary teaches combining microbial inoculants with fertilizers, pesticides, and herbicides in aqueous mixtures for agricultural application (¶[0143] and ¶[0324]). Thus, combining an oil-based microbial concentrate with an aqueous agrochemical composition to form an emulsion prior to application would represent routine agricultural tank mixing and therefore, is obvious over Mbarga in view of Clary.
Clary teaches compositions wherein dispersant(s) maybe selected to wet and/or emulsify one or more soils (¶[0190]) and liquid emulsions may be used as flowability agents (¶[0200]), in addition the powder or granulated inoculants may comprise liquid carriers (e.g., one or more aqueous solvents) in addition to one or more methylated plant oils (¶[0120]). Example 4 describes the use of aqueous phase inoculant culture (water-based broth containing bacterial cells and nutrients) in an soy oil phase with the presence of an emulsifier (ZEPHRYM PD 2206) and rapid stirring (¶[0508]) creating the classic conditions to form an oil-in-water emulsion. The inoculant compositions of Clary may comprise fertilizers added to the growth medium (¶[0324]), any suitable pesticide(s), including, but not limited to, acaricides, fungicides, herbicides, insecticides and nematicides (¶[0143]), one or more biofungicides, bioherbicides, bioinsectides and/or bionematicides (¶[0081]), and one or more extracts of media comprising one or more diazotrophs, phosphate-solubilizing microorganisms and/or biopesticides (¶[0140]), wherein any suitable microorganism(s) include, but not limited to, agriculturally beneficial microorganisms such as diazotrophs, phosphate-solubilizing microorganisms and biopesticides (¶[0076]) and as mentioned previously Methylobacterium isolates (¶[0076]; Appendix A ¶[0511]), are suitable microorganisms for use in the invention.
Regarding instant claims 27, 28, 30 and 31, Clary teaches the use of the disclosed invention for coating plant seeds (¶[0010]) and a method of treating a plant comprising applying the liquid inoculant composition comprising microbial cells/spores and one or more methylated plant oils to a plant propagation material (e.g., seed) and/or a plant that grows from said plant propagation material (¶[0012]) or to a plant growth medium (e.g., soil) (¶[0013]). Applying the Methylobacterium-containing compositions of the instant claims to seeds or soil in the same manner as taught by Clary is an obvious application of the composition to achieve its intended plant-beneficial effects.
Thus, it would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to add the missing limitation of using Methylobacterium isolates as microbial inoculant at the outlined concentrations, as taught by Clary, as a substitution for Trichoderma asperellum in the invention taught by Mbarga. The substitution of one known, beneficial microbial genus (i.e., Trichoderma in Mbarga) for another (i.e., Methylobacterium in Clary) is considered obvious to a person of ordinary skill in the art seeking to provide alternative plant growth-promoting inoculants. The substitution/addition of rheology modifiers, stabilizers, or ethoxylated sorbitan fatty esters emulsifiers, known in the art at the time of the invention and used for the same purpose as evidence by Clary would be obvious as a matter of routine formulation optimization. Use of the composition by application to plant seeds or soil is obvious based on the disclosure of such practices by Clary. One would be motivated to make the changes to harness the known, beneficial properties of Methylobacterium such as phytohormone production and stress mitigation with a reasonable expectation of success.
Response to Arguments
Applicant Arguments/Remarks of the reply, filed 05 February 2026, have been fully considered.
Regarding the rejection of claims 1, 2, 18 and 19, as anticipated under 35 U.S.C. § 102 by Mbarga, the applicant argues that Mbarga fails to disclose compositions comprising a hydrophobic rheology modifier and gram-negative bacterial inoculants, asserting that Mbarga is limited to fungal conidia.
The applicant's argument is not persuasive regarding the hydrophobic rheology modifier limitation, as Mbarga’s use of Tensiofix 869 discloses a hydrophobic organoclay, meeting this limitation. However, Mbarga does not explicitly disclose gram-negative bacterial inoculants, and thus the examiner agrees with the applicant in that Mbarga does not fully anticipate claims 1, 2, 18 and 19, as amended. Accordingly, claims 1, 2, 18 and 19 are rejected under 35 U.S.C. § 103 as obvious by Mbarga in view of Clary as described above.
The new rejection is based on the structural elements of the claimed composition disclosed by Mbarga, not on the specific biological identity of the microorganism. Mbarga teaches an oil-based microbial inoculant dispersion system comprising soybean oil as a non-aqueous continuous phase, the hydrophobic organoclay Tensiofix 869 as a structural agent/rheology modifier, Tensiofix NTM as an emulsifier, and microbial inoculant particles dispersed in the oil phase. The microbial component of Mbarga performs the same functional role (i.e., a biological inoculant dispersed within the oil carrier). The recited gram-negative bacterial inoculant does not require any structural or compositional property that distinguishes the formulation structure from that of Mbarga.
Clary explicitly teaches that the disclosed microbial inoculant formulations may employ any suitable agriculturally beneficial microorganism (¶[0076]), including species of Methylobacterium (Appendix A, ¶[0511]). Thus, Clary teaches that microbial carriers such as methylated plant oils are compatible with a wide variety of microorganisms, including bacteria such as Methylobacterium, and enhance the survival and stability of microbial cells. A person of ordinary skill, seeking to improve the stability of an oil-based microbial formulation, such as that taught by Mbarga, would have been motivated to look to Clary’s teachings to address any potential viability concerns.
Given Clary discloses the genus Methylobacterium at length (Appendix A, ¶[0511]). The selection of specific strains ISO04, ISO10, or ISO20 from within that disclosed genus is a routine optimization that does not render the claim patentable absent a showing that these strains exhibit unexpectedly superior properties in this specific formulation compared to other Methylobacterium species (see In re May, 574 F.2d 1082 (CCPA 1978)).
The applicant also argues that fungal conidia possess structural resilience that gram-negative bacteria lack and therefore Mbarga would not reasonably suggest the claimed system. The examiner acknowledges the structural differences between fungal conidia and vegetative bacterial cells. However, this argument is not persuasive because the claims are directed to composition components and formulation architecture, not to a specific structural interaction between fungal spores and the oil formulation. In addition, the test for obviousness is whether the claimed subject matter as a whole would have been obvious to one of ordinary skill in the art (see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007). Substitution of one known microbial inoculant for another known microbial inoculant used in agricultural formulations represents a routine substitution of equivalents. Such substitutions are well recognized as obvious when the art teaches the interchangeability of microbial inoculants for agricultural benefit.
The argument regarding biological differences between fungi and bacteria, in the context of the composition formulation architecture, constitutes an argument unsupported by objective evidence demonstrating unexpected results or incompatibility. Absent experimental evidence showing that gram-negative bacteria would not survive such formulations, the substitution represents a predictable use of prior art elements according to their established functions under KSR Int l Co. v. Teleflex Inc., 550 U.S. 398 (2007). Therefore, the examiner maintains that the substitution would have been obvious.
The applicant argues that Mbarga does not teach the specific method steps. However, Mbarga explicitly teaches preparing a liquid composition comprising a non-aqueous solvent (soybean oil) with a rheology modifier (Tensiofix 869, a hydrophobic organoclay) and an emulsifier (Tensiofix NTM) (Section 2.2.2), incorporating a dried microbial inoculant (conidia harvested and dried via a mycoharvester, as described in the reference’s cited link), and dispersing the inoculant in the liquid composition via homogenization to produce a stable liquid composition (Section 2.2.2, and Section 4 discussing half-life stability). Thus, Mbarga discloses every step of the claimed method. The mere fact that applicant intends to use a different organism (i.e., a bacterium) does not render the method novel where the process steps are identical, particularly in view of the teachings of Clary.
The applicant further asserts that the prior art fails to establish a reasonable expectation of success in substituting gram-negative bacteria. This argument is also not persuasive. Clary provides that expectation.
Clary teaches microbial inoculant compositions using methylated plant oils and other oil carriers designed specifically to stabilize microbial cells or spores (¶[0075]-¶[0088]). Clary further teaches survival of microbial inoculants in oil-based compositions for extended storage periods (¶[0261]). Accordingly, the art establishes that oil-based microbial carriers were known, and bacterial inoculants were known to be formulated in such carriers. It demonstrates that non-aqueous formulations with hydrophobic components can successfully stabilize vegetative bacterial cells.
The fact that Clary may not explicitly guarantee that every bacterial strain will survive ad infinitum does not negate the reasonable expectation that known formulation techniques (e.g., using esterified oils, hydrophobic clays/silica) will work for their intended purpose of preserving microbial life. A person of ordinary skill in the art would therefore reasonably expect microbial inoculants, including bacteria, to be compatible with the oil-based formulation architecture taught by Mbarga. Therefore, claims 1-31 remain rejected under 35 U.S.C. § 103 over Mbarga in view of Clary.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REBECCA L. SCOTLAND whose telephone number is (571) 272-2979. The examiner can normally be reached M-F 9:00 am to 5:00 pm EST.
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/RL Scotland/
Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615