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 .
Detailed Action
This Office Action is in response to the Applicant’s reply received 11/03/25. Claims 1, 7, 12, 14, 19, and 20 are pending and considered on the merits.
Response to Applicant’s Arguments and Amendments
In the response submitted by the Applicant the following 35 U.S.C § 102 rejections are withdrawn:
Claim(s) 1, 4-6, 8, 9, and 12-20 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by Merritt et al. (WO 2006/005100);
Claim(s) 1, 4, 9, 12, 13, 16 and 17 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ott et al. (WO 2016/164819);
Claim(s) 1-3, 6-8, 10, 11, 15, 18, 19 and 20 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by Flynn (US 2008/0236227)
The following 35 U.S.C. 112 rejections are withdrawn:
Claim 11 was rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
The Applicant’s amendments that the microbes are applied to the soil in the off-season and applied in the form of a liquid necessitated the above withdrawals. All arguments drawn to these rejections are now considered moot.
New Rejections Necessitated by Amendment
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.
Claim(s) 1, 7, 12, 14, 19, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Flynn (US 2008/0236227) in view of Growth Products (EPA Pesticide Registration 71065-4, 2014).
Flynn teaches culturing native cyanobacterial communities comprising Nostoc spp., Anabaena spp., and Tolypothrix spp. into BG-11 media that includes potassium, phosphorus, magnesium, sodium, iron, ammonium, and calcium into a biomass (Flynn, 0018, 0039). This biomass is harvested and dewatered (Flynn, 0046-0049). Carbon sources including sorbitol, mannitol, sucrose, and glycerol are added to the dried biomass as membrane protectants (Flynn, 0051). Flynn teaches this fertilizer is applied to the soil by aircraft spraying or dispersed wettable powder in both the winter or wet seasons (e.g. off-seasons) to grow on the fields instead of the crop plants (Flynn, 0052). They teach hydrating the biomass to improve soil adhesion (Flynn, 0052). This composition can be applied to arid (e.g. dryland) soils to improve soil fertility (Flynn, 0051). Flynn teach soil nitrogen content (e.g. nutrient content) and chlorophyll (e.g. microbial populations) can be measured to estimate the presence of cyanobacteria after application (Flynn, 0056 and Table 1).
While Flynn teaches their biomass is dried with culture medium BG-11, and applied as a wettable powder, they do not specifically teach it is applied as a liquid. However this would be obvious in view of Growth Products who teach a wettable powders comprising the microbe Bacillus subtilis GB03, is mixed with water to form suspensions prior to application (Growth Products, pg. 3, Product Description and pg. 5 Mixing Instructions). Growth Products teach their wettable powder can be applied with the either drip system irrigation or sprinkler irrigation (Growth Products, pg. 11, General Requirements). It would be obvious to apply the wettable powder of Flynn as a liquid to the field as a liquid with an irrigation system since Growth Products teaches this is a conventional way to apply microbe-comprising wettable powders. One of ordinary skill in the art would recognize this as simply applying a wettable powder with a known technique (MPEP 2141 III (D)).
Therefore the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Claim(s) 1, 7, 12, 19, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Flynn (US 2008/0236227) in view of PMEP (Pesticide Safety Education Program, Cornell University 2021).
Flynn teaches culturing native cyanobacterial communities comprising Nostoc spp., Anabaena spp., and Tolypothrix spp. into BG-11 media that includes potassium, phosphorus, magnesium, sodium, iron, ammonium, and calcium into a biomass (Flynn, 0018, 0039). This biomass is harvested and dewatered (Flynn, 0046-0049). Carbon sources including sorbitol, mannitol, sucrose, and glycerol are added to the dried biomass as membrane protectants (Flynn, 0051). Flynn teaches this fertilizer is applied to the soil by aircraft spraying or dispersed wettable powder in both the winter or wet seasons (e.g. off-seasons) to grow on the fields instead of the crop plants (Flynn, 0052). They teach hydrating the biomass to improve soil adhesion (Flynn, 0052). This composition can be applied to arid (e.g. dryland) soils to improve soil fertility (Flynn, 0051). Flynn teach soil nitrogen content (e.g. nutrient content) and chlorophyll (e.g. microbial populations) can be measured to estimate the presence of cyanobacteria after application (Flynn, 0056 and Table 1).
While Flynn teaches their biomass is dried with culture medium BG-11, and applied as a wettable powder, they do not specifically teach it is applied as a liquid. However this would be obvious in view of PMEP who teach Wettable Powders are mixed with water to form suspensions prior to application (PMEP, pg. 4, middle). It would be obvious to apply the wettable powder of Flynn as a liquid to the field or plant since this is typical way of administration as taught by PMEP. One of ordinary skill in the art would recognize this as simply applying a wettable powder with a known technique (MPEP 2141 III (D)).
Therefore the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
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.
In response to this office action the applicant should specifically point out the support for any amendments made to the disclosure, including the claims (MPEP 714.02 and 2163.06).
CONTACT INFORMATION
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THANE E UNDERDAHL whose telephone number is (303) 297-4299. The examiner can normally be reached Monday through Thursday, M-F 8-5 MST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Fereydoun Sajjadi can be reached at (571) 272-3311.The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/THANE UNDERDAHL/Primary Examiner, Art Unit 1699