DETAILED ACTION
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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 7/13/2026 has been entered.
Withdrawal from Issue
Allowance of the instant application was withdrawn on 6/17/2026 because all claims are still considered unpatentable for the following reason:
Upon reconsideration of the cited prior art, it has been determined that Niu et al. (CN 107011477 A) teaches the new limitation “with said guar gum being present in a sufficient amount to improve rainfastness of said beneficial microorganism on said agricultural target”. Nui et al.'s nutritious land colloid comprises 1-5 part by weight (pbw) of a colloid like guar gum (par. [0008]; claims 1 & 3) such as 0.8 pbw (Example 4; par. [0035]). It should be noted that applicant’s specification provides an embodiment wherein the amount of guar gum is “from 0.03 to 3 pbw, for instance from 0.05 to 1 pbw, relative to the total weight of the beneficial microorganism-containing spray treatment or slurry formulation intended to be applied on the agricultural target” (lines 19-22, page 15). Since the disclosed guar gum amount of 0.8 pbw falls within applicant's required amount which encompasses 0.03-3.0 pbw, the prior art is deemed to read on the new limitation because the property of increasing rainfastness of the microorganism is inherent to the disclosed guar gum-containing composition.
Claim Amendments
Claim 1 has been amended to specify “said guar gum being present in a sufficient amount to improve rainfastness of said beneficial microorganism on said agricultural target”. Applicant states that claim 10 was also amended to clarify how rainfastness is evaluated, but no such amendment was made.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
RE: Rejection of claims 1, 3, 6, 8, 10-11, and 15 under 35 U.S.C. 102(a)(1)/102(a)(2) as being anticipated by Niu et al.
Applicant traverses the rejections on the grounds that Niu et al. does not teach the newly added limitation.
Applicant’s traversal has been fully considered and is found unpersuasive. It is respectfully submitted that Niu et al. does teach the new limitation since it discloses a nutritious land colloid comprising 1-30 part by weight (pbw) of microorganisms like phosphate-solubilizing bacteria and 1-5 pbw of a colloid like guar gum (par. [0008]; claims 1 & 3). In Example 4, guar gum amounts to 0.8 pbw in the nutritious land colloid used (par. [0035]).
Applicant states that a suitable amount of the guar gum is 0.03-3.0 pbw relative to the total weight of the formulation (lines 19-22, page 15). This concentration range overlaps with the range disclosed by the prior art. Accordingly, Niu et al. is considered to satisfy the new limitation as the property of increasing rainfastness of the microorganism is inherent to the disclosed composition containing guar gum at such amount. As explained in the last office action, a chemical composition and its properties are inseparable. Guar gum naturally binds microorganisms, humic acid, and hydrophilic monomer together so it inherently improves rainfastness by retaining said components when subjected to rain. Given that the prior art teaches applying equivalent compositions (containing “at least one beneficial microorganism” and the same amount of “at least one guar gum”) on the same target (land corresponds to “an agricultural target”), the same effects would be necessarily produced. Hence, Nui et al. anticipates the claimed invention.
The rejections of record have been modified to address claim amendment and are presented below.
Modified rejections
Claims 1, 3, 6, 8, and 10-11 are rejected under 35 U.S.C. 102(a)(1)/102(a)(2) as being anticipated by Niu et al. (Pub. No. CN 107011477 A).
Niu et al. discloses a nutritious water-retaining land colloid for grass seeds, a method for preparing said colloid, and a method for using it (Abstract; par. [0002]).
The nutritious land colloid comprises microorganisms in a nutrient matrix with soil cultivation properties (par. [0006]), wherein suitable microorganisms include one or more phosphate-solubilizing bacteria, potassium-solubilizing bacteria, nitrogen-fixing bacteria, Bacillus, and Rhizobium (par. [0011]).
The nutritious land colloid is prepared by first heating a potassium humate aqueous solution and mixing it with a colloid like guar gum, simultaneously adding an aqueous solution of hydrophilic monomer and an aqueous solution of cross-linking agent and initiator to the colloid-containing potassium humate aqueous solution to initiate crosslinking, heating the resulting mixture while stirring, and cooling the heated mixture before adding a buffer and microorganisms (par. [0010], [0016]-[0020], [0035]).
Niu et al. reads on the instant application as follows:
Regarding claim 1: mixing the nutritious land colloid, which comprises microorganisms like phosphate-solubilizing bacteria (which are beneficial microorganism) and colloid like guar gum, with grass seeds and then spraying it on soil (par. [0022]-[0024], [0043]) is equivalent to “combining or applying together said beneficial microorganism with at least one guar gum on said agricultural target”.
The colloid amounting to 1-5 pbw, such as 0.8 pbw guar gum (par. [0008], [0035]; claims 1 & 3), satisfies the limitation “said guar gum being present in a sufficient amount to improve rainfastness of said beneficial microorganism on said agricultural target”. Since applicant indicates that a suitable amount of guar gum is 0.03-3.0 pbw (lines 19-22, page 15 of specification) and Niu et al. teaches a particular amount that falls within this range in a working example (0.8 pbw of guar gum in Example 4), the guar gum in Niu et al.’s nutritious land colloid is considered to be present in an amount sufficient to hold all components together such that the microorganisms are necessarily retained when exposed to rain.
The colloid’s effect of retaining the microorganisms and water on the grass seed and sprayed soil meets the intended function of “improving rainfastness of at least one beneficial microorganism on an agricultural target”.
Regarding claim 3: mixing a potassium humate aqueous solution with a colloid like guar gum to form a colloid-containing potassium humate aqueous solution, which is subsequently added with an aqueous solution of hydrophilic monomer and an aqueous solution of cross-linking agent and initiator, is the same as “providing a guar gum”.
Adding microorganisms to the colloid-containing mixture, thereby producing a nutritious land colloid, is analogous to “combining said guar gum with at least one beneficial microorganism to obtain the solution”.
Combining the produced nutritious land colloid with grass seeds and then spraying the formed combination on soil is akin to “spraying the resulting solution on the agricultural target”.
Regarding claim 6: combining the colloid like guar gum and microorganisms such as the beneficial phosphate-solubilizing bacteria to yield a nutritious land colloid, followed by combining with grass seeds prior to spraying on soil, which is exposed to environmental conditions like rain and help arid or semi-arid areas to grow green vegetation, improve the soil, and improve the environment (based the nutritious land colloid having the ability to retain water like rain water; par. [0006]), thus meeting “A method to increase bioefficacy of a beneficial microorganism comprising the step of (i) combining or applying together said beneficial microorganism with at least an effective amount of one guar gum and subsequently (ii) submitting said beneficial microorganism to exposure to water.”
Regarding claim 8: the colloid like guar gum being crosslinked is identical to “wherein said guar gum is crosslinked”.
Regarding claim 10: the nutritious land colloid comprising a colloid like guar gum in the amount of 1-5 parts by weight (par. [0008]) corresponds to “An agricultural composition comprising at least one guar gum”.
The one or more microorganisms, which includes beneficial bacteria such as phosphate-solubilizing bacteria, potassium-solubilizing bacteria, nitrogen-fixing bacteria, Bacillus, and Rhizobium, are the same as “and at least one beneficial microorganism”.
Although Niu et al. does not explicitly teach that the amount of the colloid in the nutritious land colloid to be “a sufficient amount to improve rainfastness of said beneficial microorganism on an agricultural target”, it is an inherent property of crosslinked guar gum to exhibit greater structural integrity which makes it less prone to degradation and withstand harsh environmental conditions, thus increasing the ability to retain mixed in materials like microorganisms.
Regarding claim 11: the crosslinked colloid, such as guar gum, is equivalent to “wherein said guar gum is crosslinked”.
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.
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.
RE: Rejection of claims 1, 3-4, 6, and 8-16 under 35 U.S.C. 103 as being unpatentable over Niu et al. in view of Castaing et al.
Applicant points out that Castaing et al. does not cure Niu et al.’s deficiency of not teaching the guar gum to be present in an amount sufficient to improve rainfastness. Castaing et al. supposedly only concerns with the use of guar derivatives in biofungicide compositions to maintain or increase microbial growth rate and biofungicidal activity.
Applicant’s argument has been considered and is found unpersuasive for the same reason explained above. The teachings of Castaing et al. are only applied to address the requirements pertaining to the average molecular weight of the guar gum and the beneficial microorganism being a biopesticide. Thus, the rejections have been maintained as proper.
Maintained rejections
Claims 1, 3-4, 6, and 8-14 are rejected under 35 U.S.C. 103 as being unpatentable over Niu et al. (Pub. No. CN 107011477 A) in view of Castaing et al. (Pub. No. WO 2020/109559 A1).
Niu et al.’s teachings are set forth above and applied herein. Niu et al. is found to anticipate claims 1, 3, 6, 8, and 10-11.
Niu et al. is comparable to the claims below:
Regarding claims 9 and 12: the guar gum is further required to have “an average molecular weight of between about 100,000 Daltons and 2,000,000 Daltons”.
Niu et al. is different from the instant claims in that it does not specify the average molecular weight of guar gum.
Nevertheless, Castaing et al. provides fungicide compositions comprising a biofungicide and a non-derivatized guar gum (Abstract) that can be formulated as a liquid composition for application to seeds and/or soil (lines 30-34, page 8). Castaing et al. teaches that a suitable average molecular weight for guar gum in such compositions is between 100,000 Daltons and 4,500,000 Daltons (lines 14-20, page 6). A person with ordinary skill in the art would have therefore used guar gum having an average molecular weight of 100,000-4,500,000 Daltons in Niu et al. with reasonable expectation that a nutritious land colloid would be successfully produced.
Claims 9 and 12 are thus obvious over Niu et al. in view of Castaing et al..
Regarding claims 13-14: the at least one beneficial microorganism is additionally specified to be “a biopesticide”.
Niu et al. does not particularly teach having a biopesticide as the one or more microorganisms.
Castaing et al., however, teaches that certain bacteria possess strong activity against fungi that cause diseases in plants. It is a good alternative to chemical agents as they are safer to humans and more environmentally friendly (lines 7-26, page 1). In addition, Castaing et al. shows that guar gum can stimulate the growth in biopesticides like Bacillus thuringiensis. Since Niu et al.’s nutritious land colloid contains a colloid like guar gum and one or more microorganisms like Bacillus, it would have been obvious to use a biopesticide as the microorganism because such modification would advantageously help fight or inhibit fungal disease and avoid plant damage. Obviousness is based on the rationale that some teaching, suggestion, or motivation in the prior art would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. See MPEP § 2143.01 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Hence, claims 13-14 are obvious over Niu et al. in view of Castaing et al..
Double Patenting
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.
RE: Nonstatutory double patenting rejections
Applicant contends that the claims of co-pending Application No. 17/298310 do not require the guar gum to be present in an amount sufficient to improve rainfastness and/or bioefficacy of microorganisms after exposure to water.
But as discussed above, applicant’s disclosure indicates that one example of an amount of guar gum that improves rainfastness of beneficial microorganisms is from 0.03 to 3 pbw. This amount is considered to be met by the co-pending application’s new claims that limit the concentration of the guar gum in the disclosed fungicide composition to be from 1 to 15% wt. Hence, the instant application is still deemed unpatentable over the co-pending application.
The double patenting rejections have been modified and set forth below.
Modified rejections
Claims 1, 10, and 13-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 5, 7-10, 12-14, 16, and 20-28 of co-pending Application No. 17/298310.
The co-pending application is drawn to a fungicide composition comprising a biofungicide and a non-derivatized guar gum, as well as a kit and methods of using said composition. The non-derivatized guar gum is present at a concentration to increase the growth rate of the microorganisms by at least 5% compared to without the presence of the non-derivatized guar gum.
Although the claims at issue are not identical, they are not patentably distinct from each other because the co-pending application’s method is directed to treating a plant with the fungicide composition by applying it onto the foliage such as by spraying it onto the plant’s leaves. Moreover, the biofungicide in the fungicide composition being used is selected from a group that includes beneficial microorganisms like B. subtilis, B. megaterium, B. thuringiensis, and B. japonicum. Furthermore, the concentration of the non-derivatized guar gum in the fungicide composition can be 1-15% wt, which overlaps with the guar gum amount considered by applicant to be sufficient to improve rainfastness of beneficial microorganisms on agricultural targets (0.03-3 pbw; lines 19-22, page 15 of specification).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
No claim is allowed.
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/Michelle F. Paguio Frising/Primary Examiner, Art Unit 1651
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