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 .
Response to Amendment
Applicant’s remarks and amendments filed 11/19/2025, in response to the non-final rejection mailed 8/19/2025, are acknowledged and have been fully considered.
Applicant’s amendment to the claims is acknowledged. This listing of the claims replaces all prior versions and listings of the claims.
Claims 2, 6, 8, 9, and 13-19 have been cancelled.
Claims 1, 3-5, 7, and 10-12 are pending and have been examined on the merits.
Applicant’s arguments, on page 7 of the remarks filed 11/19/2025, with respect to the previous rejections of claims 1, 3-5, and 7 have been fully considered and are persuasive in view of the claim amendments. The claims, originally drawn to an agent, now recite a method of using the agent, with particular applications and physical transformations of the natural product. The rejections of claims 1, 3-5, and 7 under 35 U.S.C. § 101 have been withdrawn.
The rejections of claims 1 and 3-5 under 35 U.S.C. § 102 and 103 as being anticipated by or, in the alternative, as being obvious over Berger et al., "Successful formulation and application of plant growth-promoting Kosakonia radicitans in maize cultivation" BioMed research international, 2018.1 (2018) (Berger), and claim 7, in view of “Santiago-Ortiz” (W02021257718) and Agarwal et al. (Microbiological research 205 (2017): 40-47, of record), are herein withdrawn in response to Applicant’s amendments.
Any previous rejection or objection not mentioned herein is withdrawn.
Claim Interpretation
The claims and limitations therein have been afforded the broadest reasonable interpretation (B.R.I.), in view of the specification. Regarding the limitation of “a leaf spot disease”, as in claim 1, the instant specification describes that “As a rule, a leaf spot disease is caused by fungi of the order Pleosporales or Capnodiales” (pg. 6, 2nd paragraph).
Claim Objections
Claim 1 is objected to because of the following informalities:
The amended claim 1 recites: a “method of using an agent for prevention and treatment of a plant”, in the preamble, according to the corrections provided in the amended claim set. In the amended claim it is unclear what “prevention and treatment of a plant” means and this appears to be an unintentional error. From the claim body, it is determined that the preamble should recite that the method is for using an agent for prevention and treatment of leaf diseases in a plant (see also the title and Abstract).
Appropriate correction is required.
Claim Rejections - 35 USC § 103
(New and/or Modified as necessitated by Applicant’s amendments)
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 4-5, 7, and 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Lambrese et al. ("Production of siderophores by the bacterium Kosakonia radicincitans and its application to control of phytopathogenic fungi." Bioresource Technology Reports 3 (2018): 82-87) in view of Robles-Yerena et al. ("First report of Cladosporium cladosporioides causing leaf spot on tomato in Mexico." Journal of Plant Pathology 101.3 (2019): 759-759) and “Santiago-Ortiz” (W02021257718).
Lambrese pertains to the study of production of a siderophore, enterochelin, produced by Kosakonia radicincitans and use of this organism and its siderophore product for control of phytopathogenic fungi (Abstract, Title). Lambrese teaches that biocontrol of two fungi, Botrytis cinerea and Penicillium expansum were performed using K. radicincitans and enterochelin, alone or in a mixture (Abstract, Figure 4). Lambrese teaches the effects of K. radicincitans and its anti-fungal product on infection with Penicillium expansum, Botrytis cinerea, Rhizopus sp., Alternaria sp. and Cladosporium cladosporioides (see section 2.1 on pg. 82 and Figs 3 and 4). Cladosporium cladosporioides is classified in the order Capnodiales and Alternaria sp. is of the order Pleosporales, each recited in the instant claim 10. Lambrese teaches that the siderophore enterochelin, produced by the K. radicincitans, was able to prevent germination and growth of both Cladosporium cladosporioides and Alternaria sp. (Figure 3, A and B respectively).
Lambrese teaches incubating and culturing K. radicincitans in liquid media, then centrifuging the cells (section 2.3, pg. 83) and teaches that for biocontrol assays, a K. radicincitans suspension (having 10^6 cells per mL) was applied alone or with the siderophore product to a plant product, e.g. an apple surface (section 2.8, pg. 84). Thus, Lambrese teaches means for culturing, expanding, centrifuging (e.g. collecting a solid biomass), and resuspending the cells (e.g. making a slurry or a bioslurry).
Regarding claim 4, Lambrese teaches using both a liquid composition of bacteria cells and using a form having components of a culture, i.e. its siderophore, enterochelin (Fig 4).
However, Lambrese does not explicitly teach in a single embodiment that the solution comprising K. radicincitans is applied to a plant having a disease comprising at least one of a leaf spot disease, a rust disease, or a disease caused by true or false powdery mildews.
Robles-Yerena (see all of page 1) teaches that a severe leaf spot disease, identified on tomato plants, is caused by Cladosporium cladosporioides. The reference is cited herein to establish that the fungus Cladosporium cladosporioides is a known cause of leaf spot disease.
Santiago-Ortiz disclosure relates to isolated microorganisms, microbial consortia, and agricultural compositions comprising the same and teaches methods of utilizing the described microorganisms, microbial consortia, and agricultural compositions comprising the same, in methods for imparting beneficial properties to target plant species (Abstract).
Santiago-Ortiz teaches that a method of imparting at least one beneficial trait upon a plant species comprises applying an isolated bacterial strain to the plant or to a growth medium in which said plant is located ([0112]). Specifically in some embodiments, Santiago-Ortiz discloses that the microbial consortium “comprises at least two microbes selected from the groups consisting of: A) Bacillus tequilensis, Bacillus methylotrophicus, Bacillus amyloliquefaciens, … Bacillus pumilus, and Lysinibacillus fusiformis; and B) Arthrobacter cupressi, Arthrobacter mysorens, Arthrobacter nicotinovorans, Arthrobacter pascens, Bacillus megaterium, Bacillus subtilis, Bacillus thuringiensis, Bacillus velezensis, Brevibacterium frigoritolerans, Herbaspirillum chlorophenolicum, Kosakonia radicincitans, …and combinations thereof” ([0114]). Therefore, Santiago-Ortiz discloses, inter alia, a composition having Kosakonia radicincitans and at least one of Bacillus pumilus and/or Bacillus velezensis.
Santiago-Ortiz also teaches that combinations of bacteria according to the disclosure therein can reduce severity of multiple plant diseases, including “Bacterial Leaf Spot disease” ([0642]) and “Powdery Mildew infection” ([0644]).
Santiago-Ortiz teaches that “an agricultural composition comprises an isolated bacterial strain and an agriculturally acceptable carrier. The isolated bacterial strain may be present in the composition at 1x10^2 to 1x10^12 CFU per gram. The agricultural composition may be formulated as a seed coating ([0111])” and “[the] microbial composition is applied to a plant element, at a time during development appropriate to the desired outcome, for example: in a formulation of a pre-planting soil drench/in-furrow application; as a seed or other reproductive element treatment; as a postplanting reproductive element application; as an in-furrow, drip, or drench application after planting; as a direct application to a plant element (e.g., root, leaf, stem); as an application to a harvested plant element (e.g., a fruit or a grain). Combinations of application types are also tested.” ([0530]).
In regards to claim 5, Santiago-Ortiz teaches that “Various organic or inorganic compounds may be added to the growth composition to facilitate the health of the microbe, alone or in combination with the plant element, for example but not limited to: amino acids, vitamins, minerals, carbohydrates, simple sugars, lipids.” ([0290]). Santiago-Ortiz also teaches that the composition may comprise, inter alia, glycerol ([0243]; [0374]), MgO (i.e. magnesium oxide [0289]), SiO2 (i.e. silicas, [0289] and [0373]), and CaO (i.e. lime [0373]).
Regarding claim 7, Santiago-Ortiz discloses, inter alia, a composition having Kosakonia radicincitans and at least one of Bacillus pumilus and/or Bacillus velezensis.
Therefore, to one of ordinary skill in the art, before the effective filing date, it would have been prima facie obvious to perform a method of applying a solution comprising Kosakonia radicincitans (e.g. in a bioslurry) to a plant for the prevention and/or treatment of a fungal disease, as taught in Lambrese, when the disease against which protection/treatment is sought is a leaf disease, including leaf spot disease, as Lambrese teaches the inhibitory effect of Kosakonia radicincitans and an anti-fungal compound produced by this bacteria against several fungal pathogens, including Cladosporium cladosporioides, which causes a leaf spot disease, as taught in Robles-Yerena et al., or against a powdery mildew because Santiago-Ortiz teaches that combinations of bacteria including those having Kosakonia radicincitans reduce severity of multiple plant diseases, including bacterial leaf spot disease and powdery mildew infection.
One of ordinary skill in the art would have been knowledgeable of the properties of K. radicincitans taught in Lambrese et al., which discusses both the anti-fungal effects of intact K. radicincitans cells and of an anti-fungal product, a siderophore, produced by this bacteria. Thus, the selection and providing of this bacteria culture, in a solution or a solid form (e.g. in a slurry), and the application of it to a plant having one of the named fungal diseases, would have been well within the level of ordinary skill in the art.
One would have been motivated by the teachings of Lambrese that K. radicincitans and a product produced by the bacteria have an inhibitory effect on Cladosporium cladosporioides, which causes a leaf spot disease, as taught in Robles-Yerena. Further, Santiago-Ortiz teaches that a similar bioprotective bacterial composition including K. radicincitans may be useful for improving plant heath and providing protection from various diseases, including bacterial leaf spot disease and powdery mildew infections. As leaf spot and related diseases caused by pathogenic fungi are a known problem in the art, one of ordinary skill would have been motivated to provide a solution comprising K. radicincitans to a plant for the expected purpose of helping to prevent against diseases that affect the leaves of a plant, in view of the combined teachings of the cited art.
Regarding claim 4, the applications taught in Lambrese include the living bacteria cells, using a composition having components of a culture, i.e. its siderophore, enterochelin, and combinations thereof. Thus, the providing of the agent in any of these forms to a plant would have been an obvious matter of selection from among the forms already taught in the art.
Regarding claim 5, Santiago-Ortiz teaches that the composition can further include known additives to facilitate the health of the microbe or the plant, including simple sugars, glycerol (for shelf-life stability), or additional additives such as MgO, SiO2, and CaO. One having ordinary skill in the art would be motivated to add one or more of these to improve the health of the bacteria, increase stability/shelf-life, or to adjust characteristics of the solution, according to the teachings of Santiago-Ortiz.
In regards to claim 7, the providing of an additional bacterial from among those listed, would have been obvious to one of ordinary skill in view of the cited references, particularly from the teachings of Santiago-Ortiz. It would have been a matter of judicious selection to provide at least one of the bacteria combinations taught therein, including a composition having at least K. radicincitans and Bacillus pumilus. It is noted that the instant claims are “comprising-type claims, and thus the inclusion of additional endophytic bacteria, as in Santiago-Ortiz, is not excluded from the claimed invention. Santiago-Ortiz establishes that combinations of bacteria, including, inter alia, one having Bacillus pumilus and Kosakonia radicincitans, result in the imparting of beneficial traits and benefits to the plant it is applied to.
MPEP § 2144.06 describes that it is obvious to combine equivalents known for the sample purpose: "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted). In this case, the art teaches that both Bacillus pumilus and K. radicincitans have individual benefits for plant growth, and thus it would have been obvious to combine the two to yield a mixed composition for the same purpose.
Regarding claim 11, none of these exact bacteria strains are explicitly taught to be controlled by K. radicincitans in the prior art, however, it is clear from the cited references that a method of applying K. radicincitans to a plant to inhibit infection by a fungal phytopathogen would have been obvious to one of ordinary skill in the art. The application of such a method for treating similar fungal diseases would have thus been an obvious matter of judicial selection to one having ordinary skill. MPEP 2112.02, in describing Ex parte Novitski, 26 USPQ2d 1389 (Bd. Pat. App. & Inter. 1993, states that: “The Board rejected a claim directed to a method for protecting a plant from plant pathogenic nematodes by inoculating the plant with a nematode inhibiting strain of P. cepacia. A U.S. patent to Dart disclosed inoculation using P. cepacia type Wisconsin 526 bacteria for protecting the plant from fungal disease. Dart was silent as to nematode inhibition but the Board concluded that nematode inhibition was an inherent property of the bacteria. The Board noted that applicant had stated in the specification that Wisconsin 526 possesses an 18% nematode inhibition rating).” It is noted that the facts of the instant case are substantially the same as the fact pattern described in Ex parte Novitski. In the instant case, Lambrese teaches applying the same bacterial species, K. radicincitans, to plants for essentially the same purpose as that which is instantly claimed, protection against plant pathogens. Lambrese is silent regarding the inhibitory effects of K. radicincitans against the specific pathogens preferably discussed in claim 11, however it is evident from the instant disclosure that the same microorganism is effective in protecting plants from infection with Asiatic soybean rust, caused by Phakopsora pachyrhizi (see the example on pages 8-9, and Figure 1).
As the conditions of the instantly claimed method are generally taught in the art, and bioprotective strains of K. radicincitans are known in the art and are readily available, the application of a known agent for a predictable use, in the prevention of infection by one of the fungal pathogens recited in claim 11, would have been obvious to one of ordinary skill in the art. Further, the physical method of applying the bacterial strain to a plant, is not materially changed by a difference in the intended use or desired result, i.e. the plant’s targeting of any specific fungal pathogen does not impart a patentable distinction from that of the cited references teachings, absent evidence of unexpected or surprising results.
In regards to claim 12, these methods of applying the analogous protective bacterial composition in Santiago-Ortiz include one or more of providing: a seed coating, in a formulation of a pre-planting soil drench/in-furrow application; as a seed or other reproductive element treatment; or as an in-furrow, drip, or drench application after planting; as a direct application to a plant element (e.g., root, leaf, stem); or as an application to a harvested plant element (e.g., a fruit or a grain). Thus, applying the composition by a seed stock treatment, watering, drip irrigation, or spraying onto a plant surface, including leaf spraying, would have been obvious and routine choices for applying the composition taught by the combination of the cited art.
From the teachings of the art, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in performing the claimed method, as at least one of the pathogens which cause leaf diseases as instantly claimed are described as a suitable inhibitory target in Lambrese, and the pathogens against which treatment is sought are similar enough (i.e. they are all fungi) that one of ordinary skill would predict the effectiveness of K. radicincitans in view of the organism’s anti-fungal siderophore and beneficial effects on plant pathogen defense taught in the art.
Therefore, the invention of claims 1, 4-5, 7, and 10-12, as a whole, would have been prima facie obvious to one of ordinary skill in the art, as evidenced by the provided references, especially in the absence of evidence to the contrary.
Claims 1, 3-5, 7, and 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Lambrese et al. (Bioresource Technology Reports 3 (2018): 82-87), Robles-Yerena et al. (Journal of Plant Pathology 101.3 (2019): 759-759) and “Santiago-Ortiz” (W02021257718), as applied to claims 1, 4-5, 7, and 10-12 above, and further in view of Berger et al. ("Successful formulation and application of plant growth‐promoting Kosakonia radicincitans in maize cultivation." BioMed research international 2018.1 (2018), on IDS filed 8/1/2023), to include the rejection of claim 3.
The combination of Lambrese and Santiago-Ortiz, with additional evidence from Robles-Yerena, renders obvious the method for the prevention or treatment of treating a leaf spot disease in a plant using an agent comprising Kosakonia radicincitans, as described above.
However, the combined teachings of the cited art does not teach using a strain Kosakonia radicincitans deposited with the accession number DSM16656, as in claim 3.
Berger describes the plant growth-promoting Gram-negative strain Kosakonia radicincitans DSM 16656 (of family Enterobacteriaceae), which was isolated from the phyllosphere of wheat (Abstract; and page 2, left col). Berger describes a commercial product AbiVital® which has by weight 64% Kosakonia radicincitans DSM 16656 cells (as recited in claim 4) and 36% additional cryoadditives (see Section 2.1, on page 2, right col). When applied to corn plants in field trials, a higher yield of crop was achieved in the field with the treated maize plants (section 3.2, Figures 1 and 3). Therefore, Berger describes an agent to be applied to plants comprising a strain of Kosakonia radicincitans having the accession number DSM 16656, and teaches two different formulations, solid (1) and liquid (2), of the composition including (page 3, left col, top paragraph). The bacterium Kosakonia radicincitans DSM 16656 described in Berger is identical to that which is instantly claimed.
To one of ordinary skill in the art, prior to the effective filing date of the instant invention, it would have been prima facie obvious when performing the method taught by the combination of Lambrese, Santiago-Ortiz, and Robles-Yerena of applying Kosakonia radicincitans to prevent or treat a plant from a fungal infection, to select the strain of Kosakonia radicincitans having the accession number DSM 16656 according to the teachings of Berger.
One would have been motivated to provide the isolated and characterized strain DSM 16656 taught in Berger because this references teaches that this strain has beneficial properties when applied to plant crops (e.g. the increased yield). To perform the methods taught in Lambrese, one of ordinary skill would have selected a characterized and available strain of Kosakonia radicincitans, which would predictably have the beneficial properties taught in Berger and possess the anti-fungal properties taught in Lambrese. Identical microorganisms of the same strain predictably have identical properties and the same functional properties (see MPEP 2112.02 describing Ex parte Novitski, 26 USPQ2d 1389 (Bd. Pat. App. & Inter. 1993)). ). In this case, the instant specification discloses that this strain has inhibitory properties against fungal pathogens that cause leaf diseases, specifically the strain prevented infection with Asiatic soybean rust, caused by Phakopsora pachyrhizi (see the example on pages 8-9, and Figure 1).
Thus, as there is no evidence in the record to suggest that the providing of Kosakonia radicincitans DSM 16656, compared to the collected and isolated Kosakonia radicincitans used in Lambrese, has any unexpected properties, the selection of the known strain of Kosakonia radicincitans DSM 16656, taught in Berger, would have been a matter of judicious selection and routine optimization to one of ordinary skill in the art. Please note, since the Office does not have the facilities for examining and comparing Applicants’ composition with the composition of the prior art, the burden is on applicant to show a novel or unobvious difference between the claimed product and the product of the prior art. See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980), and “as a practical matter, the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith.” In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972).
From the teachings of the cited references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention, as K. radicincitans is taught to have anti-fungal activity and a bacterial composition including K. radicincitans strain DSM 16656 for applying to plants is already known in the art.
Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date.
Response to Arguments
Although news grounds of rejection have been presented above due to Applicant’s amendments, the arguments filed 1/19/2025 have been fully considered, as so far as they pertain to teachings of the references relied upon herein, however, these arguments are not persuasive.
Generally, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant argues that none of the cited references teaches or suggests that the leaf diseases are selected from leaf spot disease, rust disease and diseases of leaves caused by true or false powdery mildews.
In response to applicant's argument, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
See also MPEP § 2141.II.C: "A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton."KSR, 550 U.S. at 421, 82 USPQ2d at 1397. "[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle."Id. at 420, 82 USPQ2d at 1397. Office personnel may also take into account "the inferences and creative steps that a person of ordinary skill in the art would employ."Id. at 418, 82 USPQ2d at 1396.
Applicant's arguments fail to specifically point out how the claimed inventive method is patentably distinguished from the combination of teachings in the cited references.
The examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).
In the instant case, the anti-fungal activity of a bacteria belonging to the species Kosakonia radicincitans is taught in Lambrese, and the effectiveness of the sidephore is shown against at least one leaf spot disease (see also pg. 9 of Applicant’s remarks, reproduced below):
PNG
media_image1.png
151
705
media_image1.png
Greyscale
Robles-Yerena is cited herein as evidence that the Cladosporium cladosporioides is a known causative agent of leaf spot disease. Further, Santiago-Ortiz teaches in embodiments the application of a plant treating microbial composition that comprises among other bacteria Kosakonia radicincitans, wherein the composition is said to be useful for treating diseases including leaf spot disease and powdery mildew. Because Lambrese demonstrates the effectiveness of the anti-fungal sidephore made by Kosakonia radicincitans species, the combined teachings of the references would lead one of ordinary skill to treat the known fungal diseases by applying a composition of Kosakonia radicincitans or a derivative thereof, particularly the sidephore obtained from a culture of this bacteria.
Applicant also argues that Santiago-Ortiz pertains to composition based on microbial cells including the taxa recited on page 9 and cites to claim 1 (reproduced below).
PNG
media_image2.png
180
710
media_image2.png
Greyscale
However, this is just one of the claimed embodiments therein. As described above and in the previous Office action, Santiago-Ortiz teaches embodiments wherein the microbial consortium “comprises at least two microbes selected from the groups consisting of: A) Bacillus tequilensis, Bacillus methylotrophicus… Bacillus pumilus, and Lysinibacillus fusiformis; and B) Arthrobacter cupressi, Arthrobacter mysorens, Arthrobacter nicotinovorans, Arthrobacter pascens, Bacillus megaterium, Bacillus subtilis, Bacillus thuringiensis, Bacillus velezensis, Brevibacterium frigoritolerans, Herbaspirillum chlorophenolicum, Kosakonia radicincitans, …and combinations thereof” ([0114]).
MPEP § 2123.1. describes that patents are relevant as prior art for all they contain and “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989)”. Further, MPEP § 2145, subsection X.D.1 states that "the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004). See also UCB, Inc. v. Actavis Labs, UT, Inc., 65 F.4th 679, 692, 2023 USPQ2d 448 (Fed. Cir. 2023) ("a reference does not teach away if it merely expresses a general preference for an alternative invention but does not criticize, discredit or otherwise discourage investigation into the invention claimed.").
Although Applicant has stated that the discovery that the bacterium Kosakonia radicincitans can be used against pathogens of specific leaf diseases (pg. 9, last two paragraphs), this is not found convincing in view of the art cited above. There is no convincing evidence that the findings and methods claimed herein would have been unpredictable over the combined teachings of Lambrese, Santiago-Ortiz, and Robles-Yerena. The claims are rejection for the reasons described above.
Conclusion
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 ANDREW TERRY MOEHLMAN whose telephone number is (571)270-0990. The examiner can normally be reached M-F 9am-5pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand Desai can be reached at 571-272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/A.T.M./Examiner, Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655