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 .
Priority
This application is a 371 of PCT/CN2020/1 09784 filed 08/18/2020. Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged.
Status of the Claims
Claims 1-22 are cancelled. Claims 23-28 are new.
Claims 23-28 are pending (claim set filed 10/10/2025) and are examined on the merits herein.
Withdrawal of Rejections
The response and amendment filed on 10/10/2025 are acknowledged. All of the amendment and arguments have been thoroughly reviewed and considered.
For the purposes of clarity of the record, the reasons for the Examiner's withdrawal and/or maintaining if applicable, of the substantive or essential claim rejections are detailed directly below and/or in the Examiner's response to arguments section.
The previous claim 15-17 rejection under 35 U.S.C. 112(a) has been withdrawn necessitated by submission of biological deposit information including statements for viability and public availability.
Specification
The disclosure is objected to because of the following informalities: paragraph 00019 recites: “Beef Prptone Yeast (BPY)”. Applicant is suggested to replace recitation with: “Beef Peptone Yeast (BPY)” since the BPY medium includes beef extract, peptone and yeast extract (specification, paragraph 00024).
Appropriate correction is required.
Claim Objections
Claims 23, 24 and 26 are objected to because of the following informalities:
Claim 23 recites: “… at China General Microbiological Culture Collection Center (CGMCC) on with a deposit number…”. Applicant is suggested to replace recitation with: “… at China General Microbiological Culture Collection Center (CGMCC) with a deposit number…”.
Claim 23 recites: “… the fermentation broth is 100% lethality to a …”. Applicant is suggested to replace recitation with: “… the fermentation broth is 100% lethal to a …”.
Claim 24 recites: “tomatoe”. Applicant is suggested to replace recitation with: “ tomato” or “tomatoes”.
Claim 26 recites: “Beef Prptone Yeast (BPY)”. Applicant is suggested to replace recitation with: “Beef Peptone Yeast (BPY)” since the BPY medium includes beef extract, peptone and yeast extract (specification, paragraph 00024).
Claim 26 recites in line 3: “I) activating”. Applicant is suggested to replace recitation with: “i) activating” since the other steps are marked as ii) and iii).
Appropriate correction is required.
Maintained/Modifieds Rejections
The following rejections are maintained and/or modified taking into consideration amendment to claims filed on 10/10/2025.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 23 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Hu (Hu et al. Plant Disease, 2017, 101, 448-455) optionally in view of Xia (Xia et al. Annals of Microbiol., 2019, 69, 1227-1233).
Regarding claim 23, Hu teaches Bacillus strains controlling root-knot nematodes on tomato plants (Abstract). One of these strains is Bacillus altitudinis CCM7. Identified strains are natural strains isolated from fruit and plant tissues of strawberry, persimmon, chili and tomato (p. 449, left column, 2nd paragraph). The instant Bacillus altitudinis strain AMCC 10184 is also a natural strain isolated from plant rhizosphere soil (Specification, paragraph 00011). Hu describes that strains were identified based on 16S rRNA sequencing, gyrB gene sequencing and biochemical experiments (p. 450, right column, 3rd paragraph). Hu discloses that treatment of the second-stage juvenile of Meloidogyne incognita with the fermentation broth of Bacillus altitudinis CCM7 (with removed cells) for 6-24 hours resulted in mortality rate of 78.9-100% (p. 449, left column, 3rd and 4th paragraphs and p. 450, Table 1). Hu mentions that administration of the fermentation broth of Bacillus altitudinis CCM7 has good control effect on tomato root-knot nematodes with reduction of galls and egg masses for up-to 70.1% and 53%, respectively, when tomato plants were precolonized with bacteria (p. 450, right column, last paragraph and p. 452, Table 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that instant Bacillus altitudinis AMCC 10184 strain can be obvious variant of Bacillus altitudinis strain CCM7 described by Hu and that the fermentation broth of Bacillus altitudinis strain CCM7 can be used for control of root-knot nematodes. One would have been motivated to make this assumption with the reasonable expectation of success since these strains: (i) are natural strains isolated from soil and plants, (ii) belong to the same species, Bacillus altitudinis, (iii) possess the nematicidal activity against M. incognita and (iv) have the same utilities of being used for control of root-knot nematodes in plants and thus are expected to have similar properties. Therefore, absent evidence to the contrary, if the strain is not the same, the use of an obvious variant of Bacillus altitudinis with the same function and used for the same purpose is obvious.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the fermentation broth of Bacillus altitudinis strain CCM7 described by Hu would be similar if not the same as instant fermentation broth and can provide lethality of a second stage juvenile of M. incognita in 1.5 hours. One would have been motivated to make this assumption with the reasonable expectation of success since Hu teaches the obvious strain of the same Bacillus altitudinis species and the obvious variant of the same species will produce the same metabolites and similar fermentation broth and since the fermentation broth is similar, it is expected to result in the same mortality rate.
Optionally, Xia teaches Bacillus halotolerans strain LYSX1 to have nematicidal activity against second-stage juveniles of Meloidogyne javanica (Abstract). Xia showed that mortality rate of nematodes is time-dependent and also depends on the concentration of the fermentation broth with the highest concentration providing 100% lethality at all time point (p. 1230, left column, 1st paragraph and p. 1229, Figure 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the fermentation broth of Bacillus altitudinis strain CCM7 of Hu teaching can be envisioned to cause 100% lethality of the second-stage juveniles of Meloidogyne incognita in 1.5 hours. One would have been motivated to make this assumption since Xia teaches that the mortality rate of Meloidogyne species depends on time of treatment and concentration of bacterial broth and hence the increase in the amount of Bacillus altitudinis strain CCM7 producing the fermentation broth can provide faster nematicidal action resulting in 100% lethality in 1.5 hours unless shown on the contrary. It is noted that neither concentration of bacterial broth, nor the amount of Meloidogyne incognita is limited in claim 23. A skilled artisan would have reasonably expected success in that because Hu and Xia teach controlling the root-knot nematode of Meloidogyne species in tomato by Bacillus species.
Thus, Hu and optionally Xia teachings render claim 23 obvious.
Regarding claim 24, Hu teaches treatment of tomatoes (Abstract). Thus, Hu and optionally Xia teachings render claim 24 obvious.
Claims 25, 26 and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Hu (Hu et al. Plant Disease, 2017, 101, 448-455) optionally in view of Xia (Xia et al. Annals of Microbiol., 2019, 69, 1227-1233) as applied to claim 23 above, and further in view of Zhou (CN 107881129 A) as evidenced by The Physics Factbook (The Physics Factbook, Mass of a Bacterium, 2003 [retrieved on 07/07/2025]. Retrieved from the Internet: <https://hypertextbook.com/facts/2003/LouisSiu.shtml>).
The teaching of Hu and Xia have been set forth above.
Hu and Xia do not teach preparation of fermentation broth by the steps recited in claims 25 and 26 and do not teach the amount of fermentation broth used of 20 L pe mu.
Regarding claim 25, Zhou teaches Bacillus amyloliquefaciens AMCC 100200 having strong inhibition effect on the plurality of plant pathogens (Abstract). Zhou discloses that the field treatment with Bacillus amyloliquefaciens AMCC 100200 results in 65% decrease in the tomato root knot nematode disease (Abstract). Zhou describes preparation of a bacterial agent for treatment comprising 5 steps, i.e. (1) activation of bacterial strain by culturing on a solid medium (paragraph 0015); (2) inoculation of the activated strain into liquid medium and culturing to prepare seed solution (paragraph 0016); (3) inoculation of the seed solution into liquid media and culturing to prepare fermentation culture (paragraph 0017); (4) inoculation of the fermentation culture from the previous step and culturing to obtain a fermentation broth (paragraph 0018) and (5) concentration of the fermentation broth and spray-drying the bacterial solution to obtain a bacterial agent (paragraph 0019). The prepared bacterial agent is applied for prevention and controlling tomato root-knot disease (paragraph 0021). Steps (1) through (4) correspond to instant steps of the culture method to prepare fermentation broth. Since the instant culture method recites preparation steps with the clause “comprising”, the instant method does not exclude additional steps.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine teachings of Hu, Xia and Zhou and apply method of preparation of bacterial broth described by Zhou for application of Bacillus altitudinis CCM7 strain described by Hu for controlling tomato root-knot nematodes. One would have been motivated to do so since the field treatment with Bacillus amyloliquefaciens AMCC 100200 prepared by the method described by Zhou resulted in 65% decrease in the tomato root knot nematode disease. A skilled artisan would have reasonably expected success in the combination because the Hu, Xia and Zhou describe application of Bacillus strains for controlling tomato root-knot disease. Thus, teachings of Hu, Zhou and optionally Xia render claim 25 obvious.
Regarding claim 26, Hu teaches beef extract peptone medium for culturing of bacterial strains and preparation of the fermentation broth (p. 449, left column, 4th paragraph), however does not describe preparation steps recited in claim 26. Zhou teaches steps of preparation of the fermentation broth as described above, steps 1-3 of which correspond to steps (i)-(iii) of claim 26. The first step of activation of the Bacillus strain is performed on solid LB medium plate (paragraph 0015), the second step in liquid LB medium and the other steps in different medium (paragraph 0020).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine teachings of Hu and Zhou and use beef extract peptone medium from Hu teaching or instant BPY medium having same components for preparation of the seed solution and fermentation broth following steps of Zhou method. One would have been motivated to do so with reasonably expected success since Hu and Zhou teach Bacillus fermentation broth for control of tomato root-knot nematodes.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the medium for bacterial culturing is a result effective variable. One would have been motivated to select the medium to reach the high level of nematicidal activity of cultured Bacillus species. A skilled artisan would have reasonably expected success in this optimization because selection of medium is routine and conventional. Thus, Hu, Zhou and optionally Xia teachings render claim 26 obvious.
Regarding claim 28, Zhou teaches application of the prepared bacterial agent by dissolving it in water to form a bacterial solution and then spraying it on plant leaves. The amount of bacterial agent used is 1 kg/mu and the concentration of bacterial solution is 50 billion CFU/ml (paragraph 0024). Since the average weight of bacteria is 10-12 as evidenced by The Physics Factbook, 50 billion CFU/ml will represent 0.05 g/ml of viable bacteria. Considering the concentration of bacterial solution of 0.05 g/ml, 1 kg will correspond to 20 L of solution and hence 1 kg/mu amount in Zhou teaching is the same as 20 L per mu amount in claim 28 limitation.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to follow teaching of Zhou and use the fermentation broth in the amount of 20 L per mu as taught by Zhou for application on tomato plants based on method of Hu. One would have been motivated to do so with reasonably expected success since the field treatment with Bacillus amyloliquefaciens AMCC 100200 prepared by the method described by Zhou resulted in 65% decrease in the tomato root knot nematode disease and Hu, Xia and Zhou teach Bacillus fermentation broth for control of tomato root-knot nematodes. Thus, Hu, Zhou and optionally Xia teachings as evidenced by The Physics Factbook render claim 28 obvious.
Claim 27 are rejected under 35 U.S.C. 103 as being unpatentable over Hu (Hu et al. Plant Disease, 2017, 101, 448-455) optionally in view of Xia (Xia et al. Annals of Microbiol., 2019, 69, 1227-1233) as applied to claim 23 above, and further in view of Shi (CN 105820981 A).
The teachings of Hu and Xia have been set forth above.
Hu and Xia do not teach dilution of fermentation broth of 1000 times.
Regarding claim 27, Shi teaches Bacillus altitudinis 14b that can effectively prevent and treat multiple fungal diseases such as peach brown rot, gray mold, soft rot and penicilliosis (Abstract). Shi discloses application of a fermentation filtrate in prevention and treatment of the fungal disease of peaches (Abstract). Shi describes preparation of a fermentation filtrate by centrifugation of the fermentation broth at 8000 r/min for 10-20 min, taking the supernatant and filtering through a microporous membrane with D=0.22 μm. Then the fermentation filtrate stock is diluted 20-100 times with sterile water to obtain 14b fermentation filtrate (paragraph 0014). Shi teaches treatment of peaches by soaking them in fermentation filtrate of 14b strain by diluting it 50 times (paragraph 0049). Thus, the complete dilution of the fermentation broth can reach 1000 times that reads on claim 27 limitation. Shi mentions that prepared fermentation filtrate has stable control effect, is environmentally friendly, has low production cost and high application value.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to follow Shi instructions and apply preparation of fermentation filtrate and dilution of fermentation broth to application of bacterial agent prepared with Bacillus altitudinis based on Hu and Xia teachings for controlling tomato root-knot nematodes. One would have been motivated to do so since Shi teaches that the prepared fermentation filtrate can be used for controlling various plant diseases, is environmentally friendly, has low production cost and high application value. A skilled artisan would have reasonably expected success in the combination because the Hu and Shi described application of Bacillus altitudinis to controlling plant pathogens and Hu and Xia applied Bacillus strains for controlling tomato root-knot disease. Thus, teachings of Hu, Shi and optionally Xia render claim 27 obvious.
Response to Arguments
Applicant's arguments filed 10/10/2025 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to prior art of Bi have been considered but are moot because the new ground of rejection does not rely on Bi reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In response to Applicant’s argument that: “Instant discloses "fermentation supernatant of AMCC 101084 shows 100% lethality to second-stage juvenile of Meloidogyne incognita in a nematicidal experiment, and the action time is short, with only 1.5 hours required to achieve the 100% lethality" which is unexpected results.”, these arguments are not persuasive because:
As described in the rejection above, Hu teaches an obvious variant of the instant strain that can produce the same metabolites resulting in the same or similar fermentation broth. Since the fermentation broth is similar it is expected to result in the same mortality rate. Additionally, although the prior art of Hu showed 78.9% lethality of the second-stage juvenile M. incognita in 6h and 100% at 24h treatment Bacillus altitudinis CCM7 (p. 450, Table 1), the amount of bacteria was not specified in prior art of Hu and in instant claim 23. At the same time Xia teaches that the Meloidogyne species mortality increases in time-dependent and dose-dependent manner (p. 1230, left column, 1st paragraph). Therefore, it can be expected that the increase in the amount of bacterial strain producing the fermentation broth can reduce the time of reaching 100% lethal effect to a second-stage juvenile of M. incognita to 1.5 hours.
Assuming arguendo Applicant has shown unexpected data, claims are not commensurate in scope with the unexpected results. MPEP 716.02: “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In instant case, the results presented in claim 23 are based on very specific concentrations of the components, i.e.: “Activity assay: 100 μL of nematode suspension (about 200 nematodes), 100 μL of supernatant of fermentation broth II of to-be-tested bacteria and 300 μL of sterile water.” (specification, paragraph 00065) where the “viable count of the fermentation broth II was (0.3 to 1. 1) x 108 CFU/mL” (specification, paragraph 00059). Besides, the fermentation broth was prepared in BPY medium (specification, paragraph 00058). The viable bacterial count, nematode count and type of medium used are not present in claim 23 and hence the claims are not commensurate in scope with the unexpected results.
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 LIOUBOV G KOROTCHKINA whose telephone number is (571)270-0911. The examiner can normally be reached Monday-Friday: 8:00-5:30.
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/L.G.K./Examiner, Art Unit 1653
/SHARMILA G LANDAU/Supervisory Patent Examiner, Art Unit 1653