DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This Office Action is in response to the paper filed 21 January 2026. Claims 10 and 11 have been amended. Claims 1-9, 12-15, and the non-elected species in claims 10 and 11 remain withdrawn. Claims 10 and 11 are currently pending and under examination.
This Application is the U.S. national phase of International Application No. PCT/EP2021/070198, filed July 20, 2021, which claims benefit of priority to European Patent Application Nos. 21174006.3, filed May 17, 2021, and 20188892.2, filed July 31, 2020.
Withdrawal of Rejections:
The rejection of claims 10 and 11 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite, is withdrawn.
The rejection of claim 11 under 35 U.S.C. 103 as being unpatentable over Hundt et al., is withdrawn.
New/Modified Rejections Necessitated by Amendment:
Claim Rejections - 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.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Hundt et al. (US 2016/0295901; Published 2016).
With regard to claim 10, Hundt et al. teach a composition, including a liquid composition, to inhibit the growth of pathogens, the composition comprising Paenibacillus polymyxa, including in spore form (Abs.; Para. 97, 430), wherein the Paenibacillus polymyxa is biomass comprising a fusaricidin producing bacteria (see Specification, p. 9, line 21-22). The Paenibacillus polymyxa is present in the composition in amounts including 5%, 10%, 15%, 20%, 25%, 30%, 35%, 40%, 45%, or 50% (Para. 224), which are fully encompassed within 5%-50% w/w. The composition further comprises additional components including a carrier, excipient, and/or diluent, including polyvinylpyrrolidone, polyethylene glycol, polypropylene glycol, and fatty acid esters such as mono- and diglycerides (Para. 270-275). While the specific concentration of these additives is not taught, other additives are taught as being present in ranges including 5-50%, 5-30%, and 5-25% (Para. 179). As such, it would have been obvious to one of ordinary skill in the art to utilize a concentration taught by Hundt et al. for additives, including 5-50%, 5-30%, and 5-25%, which are fully encompassed within 5-50% w/w.
No category 3 additives are required to be present in the composition (see entire document).
Claims 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Hundt et al., and further in view of Rodeheaver et al. (US 2009/0202615; Published 2009).
The teachings of Hundt et al. as applied to claim 10 have been set forth above.
With regard to claim 11, while Hundt et al. teach that the composition is used to inhibit the growth of microorganisms, and can include additional components, including surfactants (Abs.; Para. 271, 275), it is not taught that the surfactants include the combinations of claim 11 a-d.
Rodeheaver et al. teach compositions containing a surface active agent and an antimicrobial agent, the surface active agent including a combination of poloxamers, including poloxamer 105, which is a polyethylene - polypropylene glycol block polymer with 50% ethyleneoxide, 1750 g/mol; poloxamer 182, which is a polyethylene - polypropylene glycol block polymer with 20% ethyleneoxide, 3250 g/mol, and poloxamer 184, which is a polyethylene - polypropylene glycol block polymer with 40% ethyleneoxide, 3250 g/mol.
It would have been obvious to one of ordinary skill in the art to combine the teachings of Hundt et al. and Rodeheaver et al., because both teach antimicrobial compositions that include surfactants. The use of a combination of surfactants in an antimicrobial composition, including poloxamer 105, poloxamer 182, and poloxamer 184, is known in the art as taught by Rodeheaver et al. The use of the surfactants as taught by Rodeheaver et al. as the surfactants in the composition of Hundt et al. amounts to the simple substitution of one known surfactant for another, and would have been expected to predictably and successfully provide a surfactant combination effective for use in the antimicrobial composition as desired by Hundt et al.
Response to Arguments
Applicant urges that Hundt et al. do not render obvious the claims as amended. With regard to claim 10, a modified rejection has been set forth above in view of Applicant’s amendment to this claim. With regard to claim 11, Applicant’s arguments have been found persuasive, and a new rejection has been set forth above.
Conclusion
No claims are allowable.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER M.H. TICHY whose telephone number is (571)272-3274. The examiner can normally be reached Monday-Thursday, 9:00am-7:00pm ET.
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/JENNIFER M.H. TICHY/Primary Examiner, Art Unit 1653
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