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 .
This Office Action is in response to Applicant’s amendment filed June 3, 2026. Claims 1, 3, 11-12, 14-15, and 18-26 are pending in the application. Claims 2, 4-10, 13, and 16-17 have been cancelled. Claims 18-24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention. Claims 25-26 are newly added. Claims 1, 3, 11-12, 14-15, and 25-26 will presently be examined to the extent they read on the elected subject matter of record.
Status of the Claims
The rejection of claims 1, 2, 5, 6, 11, 14, and 15 under 35 U.S.C. 102(a)(1) as being anticipated by Zheng et al. (CN105076212A, Translation) as evidenced by Kijlstra et al. (US 9,745,597) is withdrawn due to Applicant’s cancellation and amendment of the claims.
The rejection of claims 1-7, 11-12, and 14-15 under 35 U.S.C. 103 as being unpatentable over Kijlstra et al. (US 9,745,597) in view of Ishizaki et al. (JP2017075144A, Translation) is withdrawn due to Applicant’s cancellation and amendment of the claims.
Rejections not reiterated from the previous Office Action are hereby withdrawn. The following rejections are newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Information Disclosure Statement
Receipt of Information Disclosure Statement filed July 15, 2026 is acknowledged.
New Rejections Necessitated by Amendment filed June 3, 2026
Claim Rejections - 35 USC § 112
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 25 and 26 are 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.
Claim 25, line 2 recites “of at least about 1%”. Claim 25 does not indicate the unit of measure for the 1%. It is unclear if the unit of measure is weight percent or volume percent or another unit of measure. Applicant should add the unit of measure, such as w/w, as disclosed in the original specification.
Claim 26, line 5 recites “of at least 3%”. Claim 26 does not indicate the unit of measure for the 3%. It is unclear if the unit of measure is weight percent or volume percent or another unit of measure. Applicant should add the unit of measure, such as w/w, as disclosed in the original specification.
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.
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.
Claims 1, 3, 11-12, 14-15, and 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Wachendorff-Neumann et al. (CN 104507317A, Translation) in view of Ishizaki et al. (JP2017075144A, Translation). Wachendorff-Neumann et al. English Translation provided from FIT Database.
Applicant’s Invention
Applicant claims a composition comprising: a) a lipopeptide-producing microorganism, wherein the lipopeptide-producing microorganism is Bacillus subtilis QST713 and wherein the lipopeptide is a surfactin-type lipopeptide, an inturin-type lipopeptide, or a fengycin-type lipopeptide, or a combination thereof, or a fermentation product or cell-free preparation of the lipopeptide-producing microorganism; and b) a compound of formula (I) or a compound of formula (II); in a synergistically effective amount. Applicant claims a method of controlling fungal harmful organisms in a plant, the method comprising applying an effective amount of the composition of claim 1 to the plant, to a part of the plant, to seed, and/or locus on which the plant or plant part grows is to be planted.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claim 1, Wachendorff-Neumann et al. teach a composition comprising synergy effective amount of at least one biological control agent and at least one kind of fungicide (I) said biological agent is Bacillus subtilis AQ713 (page 1, Abstract, translation), page 3, paragraph [0010], translation).
Regarding claim 1, Wachendorff-Neumann et al. teach Bacillus subtilis AQ713 also called Bacillus subtilis QST713 exhibit broad fungicidal and bactericidal activity (page 5, paragraph [0033], translation). Wachendorff-Neumann et al. teach that Bacillus subtilis AQ713 has a particularly preferred metabolite of activin A as iturin, surfactin, phospholipid and A (plipstatin) (page 7, paragraph [0047], translation).
Regarding claims 1 and 3, Wachendorff-Neumann et al. teach suitable solvents include alkylnaphthalenes (page 18, paragraph [0145], translation).
Regarding claims 1 and 3, Wachendorff-Neumann et al. teach the wetting agent of promoting wetting and conventionally used for all material agricultural chemical ingredient is preferably alkyl naphthalene sulfonic acid esters such as diisopropyl naphthalene sulfonic acid ester or isobutyl naphthalene sulfonic acid ester (page 26, paragraph [0211], translation).
Regarding claim 11, Wachendorff-Neumann et al. teach a method for reducing overall damage of plant and plant parts caused by plant pathogen which comprises simultaneously or sequentially administering synergy effective amount of Bacillus subtilis AQ713 (pages 47-48, claim 13, translation).
Regarding claim 12, Wachendorff-Neumann et al. teach non-limiting examples of pathogens of fungal diseases that can be treated include Sphaerotheca fuliginea (page 33, [paragraph 0245], translation); Phakopsora pachyrhizi, Uromyces appendiculatus (page 33, paragraph [0246], translation); Phytophthora infestans, Plasmopara viticola (page 33, paragraph [0247], translation); Alternaria solani (page 33, paragraph [0248], translation); Venturia inaequalis (page 34, paragraph [0248], translation); and Botrytis cinerea (page 34, paragraph [0252], translation).
Regarding claim 14, Wachendorff-Neumann et al. teach plants include soybean, lemon, orange, grapefruit (page 37, paragraph [0269], translation), apple, pear, peach, strawberry, banana, tomato, potato, watermelon, melon, cauliflower, cabbage (page 37, paragraph [0270], translation).
Regarding claim 15, Wachendorff-Neumann et al. teach compositions are administered as a foliar spray (page 21, paragraph [0167], translation).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Wachendorff-Neumann et al. do not specifically disclose examples comprising Bacillus subtilis QST713 and a compound of formula (I), specifically diisopropylnaphthalenesulfonic acid, component (b) is present in a concentration of at least 1%, as claimed in claim 25 or component (b) is present in a concentration of at least 3%. It is for this reason Ishizaki et al. is added as a secondary reference.
Ishizaki et al. teach an aqueous suspended agrochemical composition comprising a aqueous suspended agrochemical composition comprises an agrochemical active ingredient and a surfactant comprising alkyl naphthalene sulfonate (page 1, Abstract, Translation). Ishizaki et al. teach the alkyl naphthalene sulfonates include monoalkyl naphthalene sulfonate, butyl naphthalene sulfonate, and diisopropyl naphthalene sulfonate (page 4, paragraph 1, Translation). Ishizaki et al. teach the content of the alkyl naphthalene sulfonate or its condensate in the aqueous suspension pesticide composition is appropriately selected and determined depending on the physical properties, application scene of the alkyl naphthalene sulfonate or its condensate. It is preferably 1 to 10 parts by weight with respect to 100 parts by weight of the aqueous suspended agricultural chemical composition (page 4, paragraph 4, Translation). Ishizaki et al. teach that these alkyl naphthalene sulfonates can be used alone or in combination of two or more. Ishizaka et al. teach the as an alkyl naphthalene sulfonate, a sodium salt is preferable (page 4, paragraph 3, Translation).
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Wachendorff-Neumann et al. and Ishizaki et al. and form a composition comprising Bacillus subtilis QST713 and a compound of formula (I), specifically diisopropylnaphthalenesulfonic acid. Wachendorff-Neumann et al. teach a composition comprising a synergy effective amount of at least one biological control agent and at least one kind of fungicide (I), wherein the biological agent is Bacillus subtilis AQ713, which is also called Bacillus subtilis QST713, currently claimed, that has a particularly preferred metabolite of activin A as iturin and surfactin. Wachendorff-Neumann et al. further teach that the wetting agent of promoting wetting and conventionally used for all material agricultural chemical ingredient is preferably alkyl naphthalene sulfonic acid esters, such as diisopropyl naphthalene sulfonic acid ester. One of ordinary skill in the art would have been motivated to formulate a composition comprising Bacillus subtilis QST713 and diisopropylnaphthalenesulfonic acid because Wachendorff-Neumann et al. specifically teach that compositions comprising Bacillus subtilis QST713, at least one additional fungicide, and diisopropylnaphthalenesulfonic acid formulate synergic fungicidal compositions, without evidence to the contrary.
One of ordinary skill in the art would have been motivated to combine the teachings of Wachendorff-Neumann et al. and Ishizaki et al. and use experimentation and optimization to determine the amount of compound (b) in the composition. Wachendorff-Neumann et al. teach a composition comprising a synergy effective amount of at least one biological control agent and at least one kind of fungicide (I), wherein the biological agent is Bacillus subtilis AQ713, which is also called Bacillus subtilis QST713 that has a particularly preferred metabolite of activin A as iturin and surfactin. Wachendorff-Neumann et al. further teach that the wetting agent of promoting wetting and conventionally used for all material agricultural chemical ingredient is preferably alkyl naphthalene sulfonic acid esters, such as diisopropyl naphthalene sulfonic acid ester. Ishizaki et al. teach the content of the alkyl naphthalene sulfonate or its condensate used in the aqueous suspension pesticide composition is appropriately selected and determined depending on the physical properties, application scene of the alkyl naphthalene sulfonate or its condensate. Ishizaki et al. teach the content of the alkyl naphthalene sulfonate or its condensate in the aqueous suspension pesticide composition is appropriately selected and determined depending on the physical properties, application scene of the alkyl naphthalene sulfonate or its condensate. Ishizaki et al. teach that it is preferably 1 to 10 parts by weight with respect to 100 parts by weight of the aqueous suspended agricultural chemical composition. Based on this teaching one of ordinary skill in the art would have been motivated to use the teachings of Ishizaki et al. to determine the amount of compound (b), specifically diisopropyl naphthalene sulfonic acid ester, in the composition taught by Wachendorff-Neumann et al., as a person with ordinary skill has good reason to pursue known options within his technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007). In addition, the adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references, especially within the broad ranges instantly claimed) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Regarding the limitation of synergistically effective amount, claims of synergy must be commensurate in scope with the claimed subject matter. The claims are directed to a composition comprising: a) a lipopeptide-producing microorganism, wherein the lipopeptide-producing microorganism is Bacillus subtilis QST713 and wherein the lipopeptide is a surfactin-type lipopeptide, an inturin-type lipopeptide, or a fengycin-type lipopeptide, or a combination thereof, or a fermentation product or cell-free preparation of the lipopeptide-producing microorganism; and b) a compound of formula (I) or a compound of formula (II); in a synergistically effective amount.
The data in Example 1 in the original specification indicates that Bacillus subtilis QST713 whole broth (WB) when combined with AGNIQUE® ANS 3DNP-U-(disodium sulfate salt of ANS (disodium diisopropylnaphthalene sulfonate)) provides better disease control when compared to Adjuvant 1. See Table 1. The data in example 2 compares various commercially available sodium diisopropyl naphthalene sulfonate (ANS) combined with Bacillus subtilis QST713 BC (Broth concentrate). The data shows that comparable results are achieved with Bacillus subtilis QST713 BC and AGNIQUE® ANS 3DNP-U-(disodium sulfate salt of ANS), AEROSOL® OS (disodium salt of ANS), OPARYL™ MT704 (sulfate salt of ANS), MORWET® IP (sodium chloride salt of ANS), and SUPRAGIL® WP (sodium salt of ANS), respectively, achieve similar disease control. See Table 2.
Example 7 provides data on the synergistic antifungal effects of the combination of sodium diisopropyl naphthalene sulfonate and Bacillus subtilis QST713. The data in Table 4 shows that when AGNIQUE® ANS 3DNP-U is combined with Bacillus subtilis QST713 WB or Bacillus subtilis QST713 BC, there is an unexpected increase in the % disease control, compared to the components added separately.
Example 9 demonstrates that AGNIQUE® ANS 3DNP-U provides better % disease control when combined with Bacillus subtilis QST713 BC than other alkyl naphthalene sulfonate compounds. See Table 5.
Example 10 demonstrates that application rate and the concentration of AGNIQUE® ANS 3DNP-U have an effect on % disease control. See Table 6.
Applicant claims a lipopeptide-producing microorganism, wherein the lipopeptide-producing microorganism is Bacillus subtilis QST713 and wherein the lipopeptide is a surfactin-type lipopeptide, an iturin-type lipopeptide, a fengycin-type lipopeptide or a combination thereof. Applicant further claims compound b) is a compound of formula (I)
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or formula (II)
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. However, only one species of the compounds of formula (I) is tested, sodium diisopropyl naphthalene sulfonate. It cannot be determined if the results achieved with sodium diisopropyl naphthalene sulfonate is indicative of the results that would be achieved if any compound of formula (I) or formula (II) are combined with Bacillus subtilis QST713, as currently claimed. Applicant has not established nonobvious evidence that is commensurate in scope with that of the claimed subject matter.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Conclusion
No claims are allowed.
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 Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
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/ANDRIAE M HOLT/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
