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 23 October 2025. Claims 1, 5, 7-11, 15, 18, 22, and 34 have been amended. Claims 41-43 are newly added. Claims 3, 4, 12, 13, and 16 have been cancelled. Claims 22, 26, 28, 29, 31, and 34 remain withdrawn. Claims 1, 5, 7-11, 15, 18 and 41-43 are currently pending and under examination.
This application claims benefit of priority to U.S. Provisional Application No. 63/289594, filed on December 14, 2021.
Withdrawal of Objections/Rejections:
The objection to claim 15, is withdrawn.
The rejection of claims 1, 3-13, 15, 16, and 18 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite, is withdrawn.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 claims 1, 3-13, 15, 16, and 18 under 35 U.S.C. 101 because the claimed invention is directed to a natural product without significantly more, is withdrawn.
The rejection of claims 1, 8-13, 15, 16, and 18 under 35 U.S.C. 102(a)(1) as being anticipated by Wigley et al., is withdrawn.
The rejection of claims 1, 3, 8, 10-13, 15, and 18 under 35 U.S.C. 102(a)(1) as being anticipated by Fujian Agriculture and Forestry University, is withdrawn.
The rejection of claims 1, 8, 10, 11, 12, and 16 under 35 U.S.C. 102(a)(1) as being anticipated by Lee et al., is withdrawn.
New/Modified Rejections Necessitated by Amendment:
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 1, 5, 7-11, 15, 18, and 41-43 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 1 as amended recites in relevant part “wherein the microbial consortium comprises at least four constitutive isolated microbes Pseudomonas putida, Bacillus mojavensis, Rhodopseudomonas palustris, Pseudomonas protegens, and Lactobacillus plantarum”; this limitation is indefinite, because while “at least four” is recited, five microbes are then recited. As it is not indicated that the at least four are selected from the group consisting of the recited five, it is unclear if microbes other than those recited may make up the “at least four.” Additionally, it is unclear if four or five microbes are intended to be present.
Claims 5, 7-11, 15, 18 and 41-43 are included in this rejection, as these claims depend from above rejected claim 1, and fail to remedy the noted deficiency.
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, 5, 8, 10, 11, 15, 18, and 41 are rejected under 35 U.S.C. 103 as being unpatentable over Fujian Agriculture and Forestry University (CN 105779305B; published July 20, 2020 – English translation provided by Examiner and referred to hereafter as “Fujian” – Previously Presented), in view of Lee et al. (KR 100766555B1; published 2007 – English translation provided by Examiner and referred to hereafter - Previously Presented).
With regard to claims 1, 5, and 15, Fujian teaches a composition comprising a mixture of beneficial bacteria, the mixture comprising isolated constitutive microbes including Pseudomonas putida, Pseudomonas protegens, and Lactobacillus plantarum (Abs.; claim 1). The mixture is a formulation further comprising an agriculturally acceptable carrier, including an aqueous solution (p. 5, 3.4 Topdressing bacterial solution, para. 1). Thus, the composition is a fluid formulation that further comprises a spray vehicle that is an aqueous carrier.
The composition includes a total viable count of 100-500 million cells/g (p. 4, 3.1 Preparation of microbial organic base fertilizer to p. 5, line 2), and the aqueous solution includes a 100-fold diluted microbial bacterial solution (p. 5, 3.4 Topdressing bacterial solution, para. 1). Thus, the fluid formulation includes 1-5 million cells/g, wherein it would have been obvious to an ordinary artisan to determine the appropriate amount of aqueous solution to mix with the bacteria to provide a carrier vehicle appropriate for the desired end use. Additionally, please also note that "the discovery of an optimum value of a variable in a known process is usually obvious." Pfizer v. Apotex, 480 F.3d at 1368. The rationale for determining the optimal parameters for prior art result effective variables "flows from the 'normal desire of scientists or artisans to improve upon what is already generally known.'" Id. (quoting In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)). Accordingly, it would have been obvious to optimize the amount of microbes within the fluid formulation, including between 100 to 1x1010 CFU/mL per microbe, to result a formulation having an effective amount of microbes to provide for the desired end use.
Fujian further teaches that the composition is useful for application to soil to enhance plant growth when continuous cropping is performed (Abs.). Fujian does not teach that the mixture of microorganisms comprises Bacillus mojavensis and Rhodopseudomonas palustris, or that the mixture further comprises Bacillus licheniformis.
Lee et al. teach a composition comprising a mixture of microorganisms, the mixture comprising isolated constitutive microbes including Bacillus mojavensis and Rhodopseudomonas palustris (p. 1, line 1-4), wherein the mixture can further comprise Bacillus amyloliquefaciens, Bacillus licheniformis, Bacillus subtilis, Bacillus pumilis, and Bacillus megaterium (p. 1, line 1-4). The composition is useful for enhancing vegetation growth to maximize the activity of plants, including to remove soil pollutants such as phosphorus (p. 6, V. Bio Pellet Products, para. 3-4).
It would have been obvious to one of ordinary skill in the art to combine the teachings of Fujian and Lee et al., because both teach compositions comprising mixtures of microorganisms that enhance plant growth. The inclusion of Bacillus mojavensis and Rhodopseudomonas palustris, as well as the further inclusion of Bacillus licheniformis, in a composition comprising a mixture of microorganisms to enhance plant growth, is known in the art as taught by Lee et al. The inclusion of Bacillus mojavensis and Rhodopseudomonas palustris, as well as the further inclusion of Bacillus licheniformis as taught by Lee et al., would have been expected to predictably improve the composition of Fujian by not only desirably enhancing plant growth, but also providing the additional benefit of removing pollutants from the soil.
With regard to claims 8 and 11, Fujian teaches that the mixture can further comprise Bacillus amyloliquefaciens, Bacillus subtilis, and Bacillus megaterium (Para. 226), which is at least one isolated non-constitutive microbe.
With regard to claim 10, Fujian does not teach that Paenibacillus durus or Bacillus firmus are present in the mixture (see entire document).
With regard to claim 18, Fujian teaches that the composition further comprises bean curd, rice bran, dried pig manure, fish meal, and brown sugar (p.4, 3.1. Preparation of microbial organic base fertilizer to p. 5, line 2), which are nutrients.
With regard to claim 41, Lee et al. teach that the composition further comprises growth agents including humic and fulvic acids (p. 5, para. 5-7), which are organic acids. The rationale for the combination of Lee et al. and Fujian has been set forth previously.
Claims 1, 8, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Fujian and Lee et al., as applied to claim 1 above, and further in view of Wigley et al. (IDS; US 2019/0382714, Published 2019 – Previously Presented).
The teachings of Fujian and Lee et al., as applied to claims 1 and 8 have been set forth above.
With regard to claim 9, as discussed previously, the combination of Fujian and Lee et al. provide a mixture of microorganisms that comprise Pseudomonas putida, Pseudomonas protegens, Lactobacillus plantarum, Bacillus mojavensis, Rhodopseudomonas palustris, Bacillus amyloliquefaciens, Bacillus subtilis, and Bacillus licheniformis. However, Fujian and Lee et al. do not teach that the mixture of microorganisms further comprises Paenibacillus durus or Bacillus firmus.
Wigley et al. teach a composition comprising a microbial consortium, the consortium comprising an isolated constitutive microbe including Pseudomonas putida (Abs.; Para. 59), wherein the microbial consortium can further comprise Bacillus firmus (Para.59, 226). The composition comprising a microbial consortium provides beneficial properties to target plant species, including increasing yields without increasing water consumption or increasing synthetic chemicals (Abs.; para. 11).
It would have been obvious to one of ordinary skill in the art to combine the teachings of Fujian and Lee et al. with Wigley et al., because all teach compositions comprising mixtures of microorganisms that enhance plant growth. The inclusion of Bacillus firmus in a composition comprising a mixture of microorganisms to enhance plant growth, is known in the art as taught by Wigley et al. The inclusion of Bacillus firmus as taught by Wigley et al., would have been expected to predictably improve the composition of Fujian and Lee et al. by not only desirably enhancing plant growth, but also providing the additional benefits of increasing yields without increasing water consumption or increasing synthetic chemicals.
Claims 1, 7-9, and 43 are rejected under 35 U.S.C. 103 as being unpatentable over Fujian, Lee et al., and Wigley et al., as applied to claims 1, 8, and 9 above, and further in view of Ahmed et al. (Appraising Endophyte–Plant Symbiosis for Improved Growth, Nodulation, Nitrogen Fixation and Abiotic Stress Tolerance: An Experimental Investigation with Chickpea (Cicer arietinum L.), Agronomy, (2019), 9, 621, pp. 1-20 - Previously Presented).
The teachings of Fujian, Lee et al., and Wigley et al. as applied to claims 1, 8, and 9 have been set forth above.
With regard to claims 43 and 7, as discussed previously, the combination of Fujian, Lee et al., and Wigley et al. provide a mixture of microorganisms that comprises Pseudomonas putida, Pseudomonas protegens, Lactobacillus plantarum, Bacillus mojavensis, Rhodopseudomonas palustris, and Bacillus firmus. However, Fujian, Lee et al., and Wigley et al. do not teach that the mixture of microorganisms further comprises Paenibacillus durus.
Ahmed et al. teach that Paenibacillus strains including Paenibacillus durus stimulate nodulation and improve nitrogen fixation efficiency in plants such as cowpea (p. 15, Para. 2), thus enhancing plant growth.
It would have been obvious to one of ordinary skill in the art to combine the teachings of Ahmed et al. with Fujian, Lee et al., and Wigley et al., because all teach microorganisms that enhance plant growth. The use of Paenibacillus durus to enhance plant growth, is known in the art as taught by Ahmed et al. The inclusion of Paenibacillus durus as taught by Ahmed et al., would have been expected to predictably improve the combined composition by not only desirably enhancing plant growth, but also providing the additional benefits of stimulating nodulation and improving nitrogen fixation efficiency in plants such as cowpea. Thus, providing a further use with another plant species.
While other components may be present in the compositions as taught by Fujian, Lee et al., Wigley et al., and Ahmed et al., these other components, including additional microbial species, also enhance plant growth, and thus do not materially affect the mixture of microorganisms. As such, the combination of Fujian, Lee et al., Wigley et al., and Ahmed et al. provides a mixture of microorganisms that consists essentially of Pseudomonas putida, Pseudomonas protegens, Lactobacillus plantarum, Bacillus mojavensis, Rhodopseudomonas palustris, Bacillus firmus, and Paenibacillus durus.
Claims 1, 41, and 42 are rejected under 35 U.S.C. 103 as being unpatentable over Fujian and Lee et al., as applied to claims 1 and 41 above, and further in view of Kanagalingam et al. (US 2020/0131096; Published April 30, 2020).
The teachings of Fujian and Lee et al., as applied to claims 1 and 41 have been set forth above.
With regard to claim 42, Lee et al. teach that the composition further includes growth agents including humic and fulvic acids, wherein the role of humic acids includes to chelate cationic nutrients (p. 5, para. 5-7). However, Fujian and Lee et al. do not teach that the organic acid in the composition includes citric acid.
Kanagalingam et al. teach a biofertilizer composition that contains a microorganism consortium and an organic acid chelating agent, the organic acid chelating agent including humic acid, fulvic acid, or citric acid (Abs.; Para. 83).
It would have been obvious to one of ordinary skill in the art to combine the teachings of Fujian and Lee et al. with Kanagalingam et al., because all teach biofertilizer compositions comprising mixtures of microorganisms that enhance plant growth. Citric acid, in addition to humic and fulvic acids, for use as an organic acid chelating agent in a biofertilizer composition containing a microorganism consortium, is known in the art as taught by Kanagalingam et al. The use of citric acid in place of humic or fulvic acid in the combined composition of Fujian and Lee et al., amounts to the simple substitution of one known organic acid chelating agent for another, and would have been expected to predictably and successfully provide an alternative to humic or fulvic acid.
Response to Arguments
Applicant urges that an ordinary artisan would not have combined the teachings of Fujian and lee et al. to produce a composition comprising the microbes of claim 1, because Fujian teach that microbial agents for treating or inhibiting replanting disease in Pseudostellaria heterophylla must be selected based on properties of the plant and the soil. Where it is clear from this teaching that not every soil bacterium will be beneficial in the methods of Fujian. Additionally, the teachings of Wigley et al. and Ahmed et al. fail to remedy the noted deficiencies.
Applicant’s arguments have been fully considered, but have not been found persuasive.
As noted above, it would have been obvious to one of ordinary skill in the art to combine the teachings of Fujian and Lee et al., because both teach compositions comprising mixtures of microorganisms that enhance plant growth. The inclusion of Bacillus mojavensis and Rhodopseudomonas palustris in a composition comprising a mixture of microorganisms to enhance plant growth, is known in the art as taught by Lee et al. The inclusion of Bacillus mojavensis and Rhodopseudomonas palustris as taught by Lee et al., would have been expected to predictably improve the composition of Fujian by not only desirably enhancing plant growth, but also providing the additional benefit of removing pollutants from the soil.
With regard to Wigley et al. and Ahmed et al., the noted deficiencies have been addressed 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.
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/JENNIFER M.H. TICHY/Primary Examiner, Art Unit 1653