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 .
Terminal Disclaimer
The terminal disclaimer filed on 8/13/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of the full statutory term of any patent granted on pending reference Application Number 18963593; and the full statutory term of US patent numbers 11582973 and 12089595 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Claim Status
Claim 2 was canceled.
Claims 1 and 3-18 are pending.
Claims 5-10 and 14-18 stay withdrawn from further consideration.
Claims 1, 3-4 and 11-13 are under consideration.
Withdrawn Rejections
Objection of claim 1 is withdrawn. Applicant amended claim 1, thereby obviating this rejection/objection.
Rejection of Claims 1, 3-4 and 11-13 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement is withdrawn. Attorney of record, over his signature and registration number, made a statement that the depositor made the deposit under the terms of the Budapest Treaty and that all restrictions imposed by the depositor on the availability to the public of the deposited material will be irrevocably removed upon the granting of a patent (Applicant’s response filed 8/13/2026, page 5).
Rejection of Claim(s) 1, 3-4 and 11-13 under 35 U.S.C. 102(a)(2) as being anticipated by Yang et al (WO2022/075969) is withdrawn. Applicant filed a declaration under 37 C.F.R. §1.130(a) and provided a statement that the subject matter disclosed in the Yang reference was obtained directly or indirectly from Dr. Yang as a joint co-inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A).
Rejection of Claims 1, 3-4 and 11-13 on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of U.S. Patent No. 11,582,973 B2 is withdrawn.
Rejection of Claims 1, 3-4 and 11-13 on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of U.S. Patent No. 12,089,595 is withdrawn.
Provisional rejection of Claims 1, 3-4 and 11-13 on the ground of nonstatutory double patenting as being unpatentable over claim 1-13 of copending Application No. 18/963593 is withdrawn.
Applicant filed Terminal Disclaimer to overcome these rejections.
MAINTAINED - 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.
Claims 1, 3-4 and 11-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-40 of U.S. Patent No. 12,167,733 (hereinafter patent’733). Although the claims at issue are not identical, they are not patentably distinct from each other because of the following reasons.
Regarding claim 1 and 11, claim 1 of patent’733 claims
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Regarding wherein-clause of claim 1 “wherein the crop disease is selected from the group consisting of citrus Huanglongbing, Zebra chip disease of potato, tomato, and other plants of the family Solanaceae, and plants of the family Apiaceae and Umbelliferae”, and “wherein the Pseudomonas bacterial strain is selected from the group consisting of Pseudomonas soli 0617-T307 (Accession No. PTA-126796), Pseudomonas soli 0917-T305 (Accession No. PTA-126797), Pseudomonas soli 0917-T306 (Accession No. PTA-126798), Pseudomonas soli 0917-T307 (Accession No. PTA-126799), Pseudomonas mosselii 0118-T319 (Accession No. PTA-126800), Pseudomonas mosselii 0318-T327 (Accession No. PTA- 126801), and Pseudomonas mosselii 0418-T328 (Accession No. PTA-126802)”, this wherein-clause is for intended use and do not change the active process steps (i) and (ii) of instant claims 1 and 11.
Regarding claim 4 and 12, claim 4 of patent’733 claims that the crop is citrus.
Regarding claim 3 and 13, wherein-clause of instant claim 3 and 13 is intended use and does not change the active process steps of claimed method. Therefore, patent’733 claims same method as claimed by instant claim 3 and 13 because patent’733 claims same active process steps (i) and (ii) of instant claims.
Response to Arguments
In the response filed on 8/13/2026, Applicant argued at page 9,
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Applicant's arguments have been fully considered but they are not persuasive. Terminal Disclaimer filed 8/13/2026 does not contain US patent Number 12,167,733.
Conclusion
No claim is allowed.
THIS ACTION IS MADE FINAL. 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 CHEOM-GIL CHEONG whose telephone number is (571)272-6251. The examiner can normally be reached Monday - Friday 9:00 am - 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Misook Yu can be reached at 571-272-0839. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHEOM-GIL CHEONG/Examiner, Art Unit 1645
/MISOOK YU/Supervisory Patent Examiner, Art Unit 1641
