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 .
Claim Status
The amendment of 03/10/2026 has been entered. Claims 1-21 are pending (claim set as filed on 03/10/2026). Applicant elected invention group I, drawn to a bioinsecticide agricultural composition in the reply filed on 11/13/2025. Claims 4-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/13/2025.
Claims 1-3 and 16-21 are currently under examination and were examined on their merits.
Withdrawn Objections/Rejections
The objection of the drawings and the rejections under 35 U.S.C. 112(b) and under 35 U.S.C. 102(a) as set forth in the previous Office action are withdrawn in light of Applicant’s amendment filed on 3/10/2026.
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.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 16-17, 19-21 are newly rejected as necessitated by amendment under 35 U.S.C. 103 as being unpatentable over Devisetty et al. (US 2016/0205945 A1, published on 07/21/2016), hereinafter ‘Devisetty’, in view of Ruiu et al. (“Toxicity of a Brevibacillus laterosporus strain lacking parasporal crystals against Musca domestica and Aedes aegypti, published on 07/14/2007, Biological Control, Vol. 43, pages 136-143), hereinafter ‘Ruiu’, and in view of Elraz (WO 2011/151766 A2, published on 12/08/2011, Applicant: BGreen Ltd), hereinafter ‘BGreen’, as evidenced by Camiolo et al. (“Genome Sequence of Brevibacillus laterosporus UNISS 18, a Pathogen of Mosquitoes and Flies”, published on 05/25/2017, Genome Announc., Vol. 5, Iss. 21, e00419-17, 2 pages), and as evidenced by Marche et al. (“Survey of Brevibacillus laterosporus insecticidal protein genes and virulence factors”, published on 05/10/2018, Journal of Invertebrate Pathology, Vol. 155, pages 38-43), hereinafter ‘Marche’.
Devisetty’s general disclosure relates to “an agricultural formulation comprising a high potency Bacillus thuringiensis subsp. kurstaki strain and a Bacillus thuringiensis subsp. aizawai strain” (see entire document, including abstract).
Regarding claims 1-3, 16-17, 19-21, it is noted that “bioinsecticide agricultural” in instant claims 1-3, 16-17, 19-21, “for foliar application to crops selected from the group consisting of wheat, cotton, soybean and corn” in instant claim 3, “for foliar application to crops selected from the group consisting of corn, soybean, wheat, and cotton” in instant claim 19, and “wherein the composition is applied at a dosage from about 0.5 to about 2.0 liters per hectare” in instant claim 20 are considered intended use. The MPEP 2111.01 (II) states: “If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction.” Therefore, since the intended use “bioinsecticide agricultural”, “for foliar application to crops selected from the group consisting of wheat, cotton, soybean and corn”, “for foliar application to crops selected from the group consisting of corn, soybean, wheat, and cotton”, and “wherein the composition is applied at a dosage from about 0.5 to about 2.0 liters per hectare” do not impart a structural limitation on the product itself, no patentable weight is given to the intended use language in claims 1-3, 16-17, and 19-21.
Regarding claims 1, 3, 17, 19-21, pertaining to the composition, Devisetty teaches a composition comprising a Bacillus thuringiensis subsp. kurstaki and Bacillus thuringiensis subsp. aizawai , wherein the Bacillus thuringiensis subsp. kurstaki and Bacillus thuringiensis subsp. aizawai comprise endospores and insecticide parasporal crystal toxins (paragraphs [0002], [0012], [0071], [0088]). It is noted that spores from B. thuringiensis reads on ‘endospores’.
Regarding claim 16, pertaining to a carrier, Devisetty teaches wherein the composition further comprises the carrier water (paragraphs [0030], [0069]), wherein water is considered suitable for foliar spraying.
In addition, Devisetty teaches that the composition can be used to control many different crop pests (paragraph [0035]).
Devisetty does not teach wherein the composition comprises Brevibacillus laterosporus and one or more botanical extracts selected from the group consisting of tea tree essential oil, citronella essential oil, and a combination thereof, wherein Brevibacillus laterosporus comprise endospores, canoe-shaped parasporal bodies, and insecticide parasporal toxins (instant claim 1), further wherein the composition according to claim 1 comprises from 1.0x107 - 1.0x1010 viable spores/mL of each microorganism, and wherein the tea tree essential oil and the citronella essential oil are each present in an amount from about 0.01 % to about 5.0 % (v/v) (instant claim 2).
Ruiu’s general disclosure relates to the toxicity of different fractions of an acrystalliferous B. laterosporus strain already known to be toxic to the housefly, against both
Musca domestica and Aedes aegypti (see entire document, including abstract).
Regarding claim 1, pertaining to Brevibacillus laterosporus, Ruiu teaches Brevibacillus laterosporus having insecticidal properties (see abstract), wherein “spore and the canoe-shaped parasporal body (CSPB) structure seems to be the main location of toxins active against M. domestica and A. aegypti” (see abstract). It is noted that spores from Brevibacillus laterosporus read on endospores.
Regarding claim 2, pertaining to the spore concentration, Ruiu teaches a spore concentration of 1.3 x 107 viable spores/mL of Brevibacillus laterosporus (page 138, right column, paragraph 3; see Table 2 on page 141).
In addition, Ruiu teaches wherein “the pathogenicity potential of Brevibacillus laterosporus was demonstrated against other insect orders, especially Coleoptera” (see page 136, paragraph 3). It is noted that Ruiu’s strain is Brevibacillus laterosporus UNISS 18, as evidenced by Camiolo (page 1, paragraph 2; note Camiolo referring to Ruiu), and that the strain has pathogenicity against different Lepidopteran and Dipteran larvae (as evidenced by Marche et al. (see abstract and Table 2).
BGreen’s general disclosure relates to “[a] combination of plant essential oils in an
aqueous solution containing vinegar provided a pesticidal effect against a range of pests, including fungi, bacteria, oomycetes, insects such as mosquitoes and bedbugs, and nematodes, and uses thereof” (see entire document, including abstract).
Regarding claim 1, pertaining to the essential oils, BGreen teaches a pesticide composition comprising tea tree essential oil and citronella essential oil (page 5, lines 17-24; page 7, lines 4-10; see claim 1).
Regarding claim 2, pertaining to the essential oil concentration, BGreen teaches wherein tea tree essential oil is present in an amount of about 5 % to about 35 % (v/v), and wherein citronella essential oil is present in an amount of about 5 % to about 35 % (v/v) (page 7, lines 4-10; see claim 1).
In addition, BGreen teaches wherein “the formulation of the present invention is useful for killing of […] as well as various insects, all of which are known to cause damage to agricultural products” (page 13, lines 27-30); and wherein a formulation comprising citronella essential oil and tea tree essential oil was effective against a number of insect pests (see Examples 14 and 15 on pages 43-45; see Formula 1 on page 9). BGreen further discloses that “the natural pesticide formulation described herein is both effective against insects and plant diseases, yet is not harmful to the surrounding environment or to humans, plants or animals, unlike synthetic pesticides” (page 3, lines 2-5).
While Devisetty does not teach wherein the composition comprises Brevibacillus laterosporus and one or more botanical extracts selected from the group consisting of tea tree essential oil, citronella essential oil, and a combination thereof, wherein Brevibacillus laterosporus comprise endospores, canoe-shaped parasporal bodies, and insecticide parasporal toxins (instant claim 1), and further wherein the composition according to claim 1 comprises from 1.0x107 - 1.0x1010 viable spores/mL of each microorganism (instant claim 2), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have combined Devisetty’s composition with Ruiu’s teachings on the insecticidal Brevibacillus laterosporus, and with BGreen’s teachings on an insecticidal composition comprising the essential oils tea tree oil and citronella essential oil, to have created a composition wherein the composition comprises Brevibacillus laterosporus and one or more botanical extracts selected from the group consisting of tea tree essential oil, citronella essential oil, and a combination thereof, wherein Brevibacillus laterosporus comprise endospores, canoe-shaped parasporal bodies, and insecticide parasporal toxins, further wherein the composition according to claim 1 comprises 1.3 x 107 viable spores/mL of each microorganism. One would have been motivated to do so in order to create an insecticide composition with maximum insecticidal activity that is environmentally safe, since it does not rely on synthetic insecticides (Devisetty, paragraph [0003]; BGreen (page 3, lines 2-5). A skilled artisan would have reasonably expected success in combining Devisetty’s, Ruiu’s, and BGreen’s teachings, since all references are directed to insecticidal compositions.
While modified Devisetty does not teach wherein the tea tree essential oil and the citronella essential oil are each present in an amount from about 0.01 % to about 5.0 % (v/v) (instant claim 2), the recited range would be within the realm of routine experimentation since BGreen teaches an amount of each essential oil of about 5 % to about 35 % (v/v) (page 7, lines 4-10). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have determined the optimal amounts of the essential oils in the composition for obtaining maximal efficacy of the insecticidal composition. Further, one would have expected success, since the essential oils are directed to a variety of insects (BGreen, see Examples 14 and 15 on pages 43 and 44), and therefore, manipulation of the amounts of the essential oils would be within the purview of an artisan. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA1955). See MPEP § 2144.05 part II A.
Regarding claims 3, 17, and 21, the claims recite the functional language “wherein the composition is effective for controlling insects of the order Lepidoptera” (instant claim 3), “wherein the Brevibacillus laterosporus, the Bacillus thuringiensis subsp. kurstaki, and the Bacillus thuringiensis subsp. aizawai of the composition have a synergistic insecticidal effect against Spodoptera frugiperda” (instant claim 17), and “wherein the botanical extract(s) of the composition potentiate the insecticidal effect of the Brevebacillus laterosporus, the Bacillus thuringiensis subsp. kurstaki, and the Bacillus thuringiensis subsp. aizawai of the composition, thereby increasing the mortality rate of insects of the order Lepidoptera” (instant claim 21). The recited functional language describes the properties and inherent functionalities of the composition in claim 1. Devisetty in view of Ruiu and in view of BGreen teaches the claimed composition in claim 1. Therefore, it is highly expected, i.e. obvious, that modified Devisetty’s composition would have the same properties and inherent functionalities as described in claims 3, 17, and 21.
Claims 1 and 18 are newly rejected as necessitated by amendment under 35 U.S.C. 103 as being unpatentable over Devisetty et al. (US 2016/0205945 A1, published on 07/21/2016), hereinafter ‘Devisetty’, in view of Ruiu et al. (“Toxicity of a Brevibacillus laterosporus strain lacking parasporal crystals against Musca domestica and Aedes aegypti, published on 07/14/2007, Biological Control, Vol. 43, pages 136-143), hereinafter ‘Ruiu’, in view of Elraz (WO 2011/151766 A2, published on 12/08/2011; Applicant: BGreen Ltd), hereinafter ‘BGreen’, as evidenced by Camiolo et al. (“Genome Sequence of Brevibacillus laterosporus UNISS 18, a Pathogen of Mosquitoes and Flies”, published on 05/25/2017, Genome Announc., Vol. 5, Iss. 21, e00419-17, 2 pages), as evidenced by Marche et al. (“Survey of Brevibacillus laterosporus insecticidal protein genes and virulence factors”, published on 05/10/2018, Journal of Invertebrate Pathology, Vol. 155, pages 38-43), hereinafter ‘Marche’, and in view of Wilkinson (EP 1185178 B1, published on 10/25/2006), hereinafter ‘Wilkinson’.
Modified Devisetty’s teachings have been set forth above.
Regarding claim 18, it is noted that “bioinsecticide agricultural” recited in claim 18 is considered intended use. Since the intended use “bioinsecticide agricultural” does not impart a structural limitation on the product itself, no patentable weight is given to “bioinsecticide agricultural” in claim 18 (see The MPEP 2111.01 (II)).
Modified Devisetty does not teach wherein the tea tree essential oil is derived from Melaleuca alternifolia and the citronella essential oil is derived from Cymbopogon nardus or Cymbopogon winterianus (instant claim 18).
Wilkinson’s general disclosure relates to plant essential oils and extracts and their uses as insecticides both in medical and non-medical applications (see entire document, including paragraph [0001]).
Regarding claim 18, pertaining to the essential oils, Wilkinson teaches wherein tea tree essential oil is derived from Melaleuca alternifolia and citronella essential oil is derived from Cymbopogon nardus (paragraph [0006]).
While modified Devisetty does not teach wherein the tea tree essential oil is derived from Melaleuca alternifolia and the citronella essential oil is derived from Cymbopogon nardus or Cymbopogon winterianus (instant claim 18), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have combined modified Devisetty’’s teachings with Wilkinsons’s teachings, in order to create a composition wherein the tea tree essential oil is derived from Melaleuca alternifolia and the citronella essential oil is derived from Cymbopogon nardus. One would have been motivated to do so for developing a insecticide composition with maximum insecticidal activity, since Wilkinson suggests the use of essential oils derived from tea tree oil Melaleuca alternifolia and Cymbopogon nardus in insecticidal compositions (paragraph [0006]). A skilled artisan would have reasonably expected success, since modified Devisetty’s and Wilkinson’s teachings are directed to insecticidal compositions comprising essential oils.
Response to Arguments
Applicant has traversed the previous rejection under 35 U.S.C. 103 (remarks, pages 9-11).
Applicant’s arguments with respect to the previous rejection under 35 U.S.C 103 of claims 1-3 and 16-21 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
No claims are allowed.
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.
Correspondence Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANDRA ZINGARELLI whose telephone number is (703)756-1799. The examiner can normally be reached M-F 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sharmila Landau can be reached at (571) 272-0614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SANDRA ZINGARELLI/Examiner, Art Unit 1653
/SHARMILA G LANDAU/Supervisory Patent Examiner, Art Unit 1653
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