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 .
Claims 1-7, 11-12, 14-15, and 18-24 are pending in the application.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-7, 11-12, and 14-15 and iturin-type lipopeptides as the lipopeptide-producing microorganism and compounds of formula (I) as compound b) in the reply filed on November 10, 2025 is acknowledged.
Claims 18-24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on November 10, 2025.
Claims 1-7, 11-12, 14-15, and 18-24 are pending in the application. Claims 18-24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention. Claims 1-7, 11-12, and 14-15 will presently be examined to the extent they read on the elected subject matter of record.
Priority
This application is a National Stage Entry of PCT/US2021/046442 filed August 18, 2021, which claims benefit to U.S. Provisional Application No. 63/067,236 filed August 18, 2020.
Information Disclosure Statement
Receipt of Information Disclosure Statement filed February 15, 2023 is acknowledged.
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 § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, 5, 6, 11, 14, and 15 are rejected 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). Zheng et al. and Kijlstra et al. cited by Applicant on the IDS dated 2/15/2023. Zheng et al. (CN105076212A) from Derwent used as English Translation.
Regarding claims 1, 2, 5, and 6, Zheng et al. disclose preparation of Example 4 comprising 75% of bacillus subtilis (Bacillus subtilis), 5% cyanide, 5% poly-carboxylate T36, 4% of sodium lignosulphonate, 1% of sodium butyl naphthalene sulfonate (a compound of formula I), 3% sodium dodecyl sulfate, 1% ammonium sulfate, 1% glucose, talcum powder is added to 100 parts by weight. (page 6, preparation of Example 4, paragraph 2, Translation). As evidenced by Kijlstra et al. Bacillus subtilis is a lipopeptide producing strain of iturin-type compound, a surfactin-type compound, a fengycin-type compound or a combination thereof (col. 9, lines 9-15).
Sodium butyl naphthalene sulfonate has the structure of the compound of formula (I), wherein R1, R2, and R3 is a C4 alkyl with the proviso that R1, R2, and R3 are not all hydrogen and M+ is Na+.
Regarding claims 1, 2, 5, and 6, Zheng et al. disclose in preparation 5, 65% of bacillus subtilis (Bacillus subtilis), 10% cyanide, 4% carboxylate, GY-D06, 3% sodium lignin sulfonate, 4% sodium butyl naphthalene sulfonate (a compound of formula I), 3% sodium dodecyl benzene sulfonate, 1% of polyethylene pyrrolidone, 2% starch, attapulgite is added to 100 parts by weight (page 6, preparation of Example 5 paragraph 3, Translation). Sodium butyl naphthalene sulfonate has the structure of the compound of formula (I), wherein R1, R2, and R3 is a C4 alkyl with the proviso that R1, R2, and R3 are not all hydrogen and M+ is Na+.
Regarding claims 11, 14, and 15, Zheng et al. disclose biological Embodiment 1: controlling wheat gibberellic disease field test using Preparation Example 5 (preparation 75% of bacillus subtilis/water dispersible granule) and wheat gibberellic disease. Field test shows that the medicine preventing and treating effect and safety to wheat scab of wheat (page 7, paragraph 4, Translation).
Regarding claim 14, Zheng et al. disclose the test crop is wheat (wheat), preventing object is wheat scab (Fusarium graminearum) (page 7, paragraph 5).
Regarding claim 15, Zheng et al. disclose using conventional spraying, the wheat flower initial administration for the first time, fertilizing medicine solution 45 kg, uniformly spraying the leaf surfaces (foliar treatment) (page 7, paragraph 5, Translation).
Zheng et al. disclose field test result shows that more than 4 composite has good effects in preventing the wheat scab, according to 50 g a.i. per acre spray for 2 times, respectively is 89.34%, 93.44% (Example 5), 92.76%, 91.26% for prevention of wheat scab 2 sequence medicine after 8 days, which is obviously better than that of each dose. Zheng et al. disclose after 10 days in the difference significance analysis, the difference is very significant level for the medicine (see Table 4) (page 8, paragraph 1, Translation).
Regarding the limitation of synergistically effective amount, the properties possessed by the composition of the instant application, synergism would be possessed by the prior art. Where the claimed and prior art product(s) are identical or substantially identical, the burden of proof is on applicant to establish that the prior art product(s) do not necessarily or inherently possess the characteristics of the instantly claimed product(s), see In re Best, 195 USPQ 430.
Zheng et al. meet all the limitations of the claims and thereby anticipate the claims.
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 1-7, 11-12, and 14-15 are rejected 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). Kijlstra et al. cited by Applicant on the IDS dated 2/15/2023.
Applicant’s Invention
Applicant claims a composition comprising: a) a lipopeptide-producing microorganism, 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 5 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, Kijlstra et al. teach a fungicidal composition comprising a strain of Bacillus subtilis or Bacillus amyloliquefaciens and one of several compounds in a synergistically effective amount (Abstract).
Regarding claim 1, Kijlstra et al. teach the lipopeptide from the lipopeptide-producing strain of Bacillus subtilis or Bacillus amyloliquefaciens is an iturin-type compound, a surfactin-type compound, a fengycin-type compound, or a combination thereof (col. 9, lines 9-20).
Regarding claim 5, Kijlstra et al. teach the lipopeptide is part of or is an extract of a fermentation product from Bacillus species bacteria, such as those described herein. In another instance of this embodiment, prior to making the combination, a lipopeptide-producing bacteria is selected, such as a Bacillus species strain (col. 26, lines 33-35).
Regarding claim 6, Kijlstra et al. teach the enhanced formulations of lipopeptide-producing strain of Bacillus subtilis or Bacillus amyloliquefaciens (col. 2, lines 6-9).
Regarding claim 7, Kijlstra et al. teach the lipopeptide-producing strain of Bacillus subtilis or Bacillus amyloliquefaciens is Bacillus subtilis QST713, Bacillus amyloliquefaciens strain D747, Bacillus subtilis MBI600, Bacillus subtilis var. amyloliquefaciens FZB24, or a mutant thereof having all the identifying characteristics of the respective strain (col. 2, lines 33-38).
Regarding claim 11, Kijlstra et al. teach compositions can be used for curative or protective/preventive control of phytopathogenic fungi. The invention therefore also relates to curative and protective methods for controlling phytopathogenic fungi by the use of the composition, which is applied to the seed, the plant or plant parts, the fruit or the soil in which the plants grow (col. 29, lines 56-62).
Regarding claim 12, Kijlstra et al. teach the methods disclosed herein are used to control a fungal disease wherein the fungal disease is Grey Mould caused by Botrytis cinerea, Late Blight caused by Phytophthora infestans, Downy Mildew caused by Plasmopara viticola, Powdery Mildew caused by Sphaerotheca fuliginea, Apple Scab caused by Venturia inaequalis, Bean Rust caused by Uromyces appendiculatus, or Soybean Rust caused by Phakopsora pachyrhizi (col. 26, lines 49-56).
Regarding claim 14, Kijlstra et al. teach the plant is apples, bananas, citrus, kiwi, melons, peaches, pears, pineapple, pome fruit, pomegranate, cabbage, cauliflower, cucumbers, cucurbits, tomatoes, potatoes, wheat, rice and soybeans (col. 10, lines 3-6).
Regarding claim 15, Kijlstra et al. teach the fungicidal composition is applied as a foliar treatment (col. 10, lines 7-9).
Kijlstra et al. teach a composition comprising a synergistic fungicidal combination of a lipopeptide and an anionic surfactant (col. 38, lines 37-39).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Kijlstra et al. do not specifically disclose the compound of formula (I), as claimed in claims 1, 2, 3, and 4. 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 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). Diisopropyl naphthalene sulfonate is synonymous with 2,3-di(propan-2-yl)naphthalene-1-sulfonic acid, as claimed in claim 4.
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 Kijlstra et al. and Ishizaki et al. and use a compound of formula (I), as claimed in claims 1, 2, 3, and 4, in the composition. Kijlstra et al. teach the fungicidal composition comprising a lipopeptide-producing strain of Bacillus subtilis or Bacillus amyloliquefaciens and a compound of formula (I). Kijlstra et al. teach the lipopeptide from the lipopeptide-producing strain of Bacillus subtilis or Bacillus amyloliquefaciens is an iturin-type compound, a surfactin-type compound, a fengycin-type compound, or a combination thereof. Kijlstra et al. further teach the composition comprising a synergistic fungicidal combination of a lipopeptide and an anionic surfactant. One of ordinary skill in the art would have been motivated to use a different sulfonic acid surfactant in the compositions taught by Kijlstra et al. such as diisopropyl naphthalene sulfonate or dibutyl naphthalene sulfonate, which are known to be used in agrochemical compositions, as taught by Ishizaki et al., such as fungicidal compositions. Since Kijlstra et al. teach that anionic surfactants can be combined with the lipopeptide-producing microorganism and it is known in the art that diisopropyl naphthalene sulfonate is an anionic surfactant, 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).
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 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 any lipopeptide-producing microorganism, wherein the lipopeptide is a surfactin-type lipopeptide, an iturin-type lipopeptide, a fengycin-type lipopeptide or a combination thereof. However, there is only data for one species of lipopeptide-producing microorganism, Bacillus subtilis QST713. While Applicant tested the whole broth and the broth concentrate, this is only one species of lipopeptide-producing organisms. It cannot be determined if the results achieved in the examples with Bacillus subtilis QST713 is indicative of the results that would be achieved with the myriad number of lipopeptide-producing microorganisms, known and unknown, when combined with a compound of formula (I) or formula (II), as currently claimed.
Applicant also 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 the myriad number of lipopeptide-producing microorganisms, 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.
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