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
Applicant’s response filed on 01/14/2026 is duly acknowledged.
Claims 1-19 as currently presented are pending in this application.
Election/Restrictions
Applicant’s election of species “Scopulariopsis brevicaulis” of claim 2 in the reply filed on 01/14/2026 (see REM, p. 5) is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, and did not specifically state if the election was made with or without traverse, the election has been treated as an election without traverse (MPEP § 818.01(a)).
However, upon further considerations, the species requirement as previously made by the examiner (paper dated 12/03/2025), has been withdrawn and all species recited in instant claim 2 have been rejoined.
Claims 1-19 as recited have been examined on their merits in this action hereinafter.
Priority
This application claims domestic benefit from a US provisional application 63/399,445 filed on 08/19/2022.
NOTE: In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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 1-19 (as presented) are rejected under 35 U.S.C. 103 as being unpatentable over Yu et al (2008; NPL cited in applicant’s IDS dated 06/10/2025, citation 3; also cited by IPER submitted by applicants on record) taken with Maor et al (US 2010/0112060 A1; US-PGPUB cited as ref. [A] on PTO 892 form) and Menon et al (2019; cited in IDS dated 06/10/2025, NPL citation #7).
Claim 1 (as currently recited) is directed to “A method of collecting fungal spores, the method comprising steps of
producing fungal spores by fungal cells within a fungal culture;
combining a hydrophobic liquid with the fungal culture;
mixing the fungal culture after the step of combining the hydrophobic liquid with the fungal culture, to thereby free at least a portion of the fungal spores as freed fungal spores which are freed from the fungal cells, where the freed fungal spores are partitioned within at least a portion of the hydrophobic liquid; and
collecting the at least a portion of the hydrophobic liquid including the freed fungal spores.”
Claim 2 is directed to “The method of claim 1, where the fungal spores and fungal cells are of a species selected from Scopulariopsis brevicaulis, Purpureocillium lilacinum, Myrothecium verrucaria, Aspergillus nidulans, and combinations thereof.”
See also limitations of dependent claims 3-19 as currently recited.
Yu et al (2008), while teaching isolation of two novel cyclodepsipeptides, scopularides A and B from a marine sponge-derived fungus namely Scopulariopsis brevicaulis (see Title and Abstract on p. 1052), disclose a method (regarding instant claim 1) of collecting fungal spores, wherein the method comprises the steps of producing fungal spores by fungal cells within a fungal culture (The fungus was isolated from the inner tissue of a marine sponge, Tethya aurantium, the fungus was cultivated (with medium and cultured) the fungus mycelia showing single conidiophores with globose to ovoid conidia (i.e. spores) was identified as Scopulariopsis brevicaulis; Page 1053, Second column, first paragraph); combining suitable amount of a hydrophobic liquid (such as acetone; it is noted that the term “hydrophobic liquid” has not been specifically defined by applicant on record; see instant disclosure, [0014], [0020]-[0021], for instance) with the fungal culture; mixing the fungal culture after the step of combining the hydrophobic liquid with the fungal culture, and collecting the at least a portion of the hydrophobic liquid including the freed fungal conidia or spores, Yu et al disclose that the fungal mycelia were separated from the culture medium, macerated, i.e. combined and mixed, and extracted with acetone to produce the acetone extract that was washed, dried and the resulting white powder was subjected to preparative HPLC Scopularide B, paxilline, and scopularide A see Yu et al, p. 1053, Second column, second paragraph). Although, Yu et al do not specifically state that the extracted hydrophobic liquid contained freed fungal spores partitioned therein, such would have been obvious to a person of ordinary skill in the art as the fungal culture comprised both cultured mycelia along with conidia that were mixed with said hydrophobic liquid, macerated and extracted, and therefore necessarily comprise the freed conidia partitioned and collected along with it for further processing.
Regarding instant claim 2, Yu et al discloses the method wherein the fungal spores and fungal cells are of a species from Scopulariopsis brevicaulis (see Yu et al, p. 1053, Second column, first paragraph).
Regarding instant claim 3, Yu et al disclose the method wherein the process of isolation/extraction of fungal conidia (using hydrophobic liquid such as acetone) would necessarily comprises left over residual mass of fungal culture in the form of solid substrate that would remain from the step of producing the fungal spores (see Yu et al, p. 1053, Second column, second paragraph), and therefore would have been obvious to an artisan of ordinary skill in the art.
Regarding instant claim 4 (“wherein the method is devoid of a step of collecting the fungal spores prior to the step of combining the hydrophobic liquid with the fungal culture”), Yu et al do not disclose any such step of collecting the fungal conidia/spores prior to the step of combining the hydrophobic liquid with the fungal culture (see Yu et al, section “Fungus” and “Extraction and isolation”, for instance), and therefore meets the limitations as presented in instant claim 4. Yu et al also disclose (regarding instant claim 8) the fungal culture within an aqueous culture medium comprised of liquid saline-Wickerham medium (see Yu et al, p. 1053, right column, section “Fungus”).
However, the method of collecting fungal spores, wherein the hydrophobic liquid (where the “freed fungal spores” are partitioned after the step of mixing; see instant claim 1) comprises an oil or a free fatty acid (see limitations of instant claims 5-7); wherein the fungal culture is grown under solid state fermentation (SSF) conditions (instant claim 9); wherein the step of combining the hydrophobic liquid with the fungal culture is “substantially” devoid of adding a surfactant or an emulsifier (the term “substantially” has not been specifically defined by applicants on record -SPEC [0051]; see instant claim 12); wherein the method further comprises step of applying the freed fungal spores to a plant as a biopesticide (see instant claim 19); or combining with a cementitious material (see instant claims 17-18), has not been explicitly taught by the cited prior art of Yu et al, as discussed above.
Maor et al (2010), while teaching formulations of entomopathogenic fungi (i.e. viable fungal-spore-based bio-insecticides; see Title, Abstract, and Claims, for instance), disclose fungal spores that can be produced by any standard procedures of culturing including agar-based nutritive media formulations, solid state (substrate) fermentations on nutritive sources such as rice, barley, wheat, corn, other cereal grains or straw, and submerged fermentation; wherein the spores can be recovered (from ambient, humidified, or dry storage conditions) as suspension in aqueous medium such as water with small amounts of a surfactant (such as 0.01% Triton X100), or suitable oil, or any mixture and/or combination thereof (see p. 5, [0079], for instance); wherein oil used in the spore formulations include either from petroleum or vegetables such as organic oils including soya oil, olive oil, sunflower oil, corn oil, etc., and the organic free fatty acids comprise oleic acid, palmitic acid, steric acid, myristic acid, etc., or mixtures thereof (see [0023], [0025], [0064], [0067], claims 62, 64, for instance); and wherein the spore formulations is used for treating an insect infestation as biopesticide (see p. 7, claim 75, for instance).
Menon et al (2019), while screening various fungi for potential application of self-healing concrete (see Title, Abstract on p.1), disclose the fact that viable fungi and spores such as from Aspergillus nidulans variants (see Abstract, Figure 1, for instance) are known to produce calcium carbonate precipitates and can be applied to cementitious materials such as for self-healing of concrete (see Abstract, Figure 3, and p. 6, sections “Fungal Growth on Concrete Plates” and “Characteristics of the Fungal Precipitates”, for instance) potentially demonstrating useful downstream applications of viable fungal spore formulations in repairing concrete cracks, and related infrastructural issues such as shrinkage, corrosions, creep/fatigue, etc., that are normally encountered with concrete structures (see p. 2, section “Fungi-Mediated Self-Healing Concrete”, last full paragraph, for instance).
Thus, to a person of ordinary skill in the art, given the detailed disclosure from Maor et al when taken with the beneficial applications as disclosed by Menon et al for the fungal spore formulations and their downstream applications (i.e. as a biopesticide as well as use in self-healing concrete; see teachings above), it would have been obvious to modify the method disclosed by Yu et al, such that it employs suitable hydrophobic oil(s), and/or free fatty acids (with small amounts of surfactant or emulsifier, if needed) while recovering the spores from the fungal culture (i.e. in place of using acetone as hydrophobic liquid) in order to obtain freed fungal spores that provides for superior viable spore formulations that are effective as biopesticides as already demonstrated by Maor et al, albeit using the fungal spores from Metarhizium anisopliae and Beauveria bassiana (see Maor et al, claims 90-91, and Examples 2-6, for instance). Since, instant claim 1 does not specifically recite any specific “hydrophobic liquid” per se, the limitations of instant claim 13 (where “the hydrophobic liquid has a hydrophobicity substantially similar to a surface hydrophobicity of the fungal spores”) is taken to be met as Maor et al disclose the same oils, and/or fatty acids, or combination thereof that are currently recited in instant claims 5-7, and thus would be deemed to intrinsically provide the same surface properties, at least for the step of recovering or collecting the fungal spores as disclosed by the method of Yu et al when taken with Maor et al, as discussed above. Also, the limitations of instant claim 14 (where “the freed fungal spores have improved stability relative to fungal spores which are collected with water and a surfactant”) is met as Maor et al specifically disclose that “The oil used according to the teachings of the present invention is preferably selected from those that can protect entomopathogenic fungal conidia from harmful ultraviolet radiation, and do not adversely affect, or preferably enhance, conidia stability. Formulations which protect conidia from Sunlight and high temperature damage are advantageous in increasing persistence of conidia after spraying on the animal body or in the field” (see Maor et al, [0067], for instance), and therefore would have been obvious and/or fully contemplated by an artisan of ordinary skill in the art. Similarly, the limitations of instant claim 11 (wherein the remaining lower liquid is further concentrated), or collecting “at least 95%” of the fungal spores (instant claim 15), would have been obvious to an artisan in the art given the detailed teachings and/or suggestions from Yu et al when taken with Maor et al because such would variously depend on the specific requirements and condition(s) including the specific type of hydrophobic liquid used, the specific fungal species and it’s culture conditions, among others. Unless evidence and/or data provided to the contrary, such steps of concentrating the remaining liquid, and the extent of recovering the fungal spores would have been obvious and/or fully contemplated by an artisan of ordinary skill in the art. Therefore, the invention as generically claimed fails to distinguish itself over the combined teachings and/or beneficial suggestions from the cited prior art references of Yu et al when taken with Maor et al and Menon et al, as discussed above.
Thus, the claim as a whole would have been prima facie obvious to a person of ordinary skill in the art before the effective filing date of the invention as currently claimed.
As per MPEP 2111.01, during examination, the claims must be interpreted as broadly as their terms reasonably allow. In re American Academy of Science Tech Center, F.3d, 2004 WL 1067528 (Fed. Cir. May 13, 2004)(The USPTO uses a different standard for construing claims than that used by district courts; during examination the USPTO must give claims their broadest reasonable interpretation.). This means that the words of the claim must be given their plain meaning unless applicant has provided a clear definition in the specification. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
Pertinent Prior Art:
ODA et al. (2014; NPL cited as ref. [U] on PTO 892 form) – “Solvent-tolerance of fungi located on an interface between an agar plate and an organic solvent”, Bioscience, Biotechnology, and Biochemistry, 2014, vol. 78 (11), pages 1971-1974 (while screening for the solvent-tolerance of various species of fungi, also disclose the art-known fact that fungal spores have superior tolerance against various stresses such as thermal, pH, oxidative, and chemical ones, and maintain full enzyme and metabolic activity; see Abstract, and p. 1973, last two paragraphs and cited references therein, for instance).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SATYENDRA K. SINGH whose telephone number is (571)272-8790. The examiner can normally be reached M-F 8:00- 5:00.
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SATYENDRA K. SINGH
Primary Examiner
Art Unit 1657
/SATYENDRA K SINGH/Primary Examiner, Art Unit 1657