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 .
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.
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.
Claims 1 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Yoon et al ‘353 (US 2018/0237353) in view of CN107189781A, further in view of Jenkins (US 8,709,9077), even further in view of Farmer et al (US 12,577,179). Yoon et al ‘353 discloses a microbial consortia comprising chitin and five or more microbes which can include Bacillus amyloliquefaciens, Bacillus subtilis, Bacillus lichenformis and Pseudomonas fluprescens, (See Paragraphs [0004], [0040] and TABLE 1.) The difference between the consortia disclosed by Yoon et al ‘353, and that recited in applicant’s claims is that Yoon et al ‘353 does not disclose Rhodopseudomonas paluystris, Bacillus subtilis and Saccharomyces boulardii. CN107189781A discloses a soil remediation composition which incl,udes bacteria such as Rhodopseudomonas palustris and Bacillus puilus. (See Paragraph [0026[] of the English translation.) Jenkins discoses a biostimulant for inproverd plant growth and development which can include Saccharomyces boulardii. (See col. 2, line 65 to col. 3, line 29, particularly col. 3, lines 24-29.) It would have been obvious from CN107189781A to include Rhodopseudomonas palustris and Bacillus puilus. In the bacterial consortia of Yoon et al ‘353. One of ordinary skill in the art would have been motivated to do so, since Yon et al ‘353 suggests in Paragraph [0004] that any Bacillus species would be suitable , with a further disclosure in Paragraph [0044] that suitable additional microbes can be identified by one of ordinary skill in the art,, whicl CN107189781A spoecifcally discloses Rhodopseudomonas palustris and Bacillus puilus as suitable bacterium for a soil remediation composition in Paragraph [0026] of the English translation. It would have been further obvious from Jenkins to include Saccharomyces boulardii as a bacterium in the consortia of Yoon et al ‘353. One of ordinary skill in the art would have been motivated to do so, since Yoon et al ‘353 discloses the genus Saccharomyces spp. In Paragraph [0051], and Jenkins discloses Saccharomyces boulardii as a useful yeast in biostimulant compositions for plants at col. 3, lines 21-29. It would have been still further obvious from Farmer et al to provide concentrations of the various microbes as recruited in claim 1 and an amount of chitosan of 5% (p/v) of the composition, since Farmer et al establish the conventionality of such amounts at col. 23, lines 49-55 in an analogous composition (see col. 20, lines 1027), and Yoon et al ‘373 discloses in Paragraph [0052] that the mixture can contain about 10% chitin-containing material, which would correlate to an amount of chitin of less than about 10%.
Claims 2-6 and 8-14 are rejected under 35 U.S.C. 103 as being unpatentable over Yoon et al ‘353 in view of CN107189781A, further in view of Jenkins, even further in view of Farmer et al, as applied to claim 1 above, still further in view of CN 110982750 (A). It would have been still further obvious from CN 110982750 (A) to carry out the fermentation during aeration, since CN 110982750 (A) discloses an analogous composition including Rhodopseudomonas palustris, and teaches in Paragraph [0043] and [0053] that the fermentation occurs during aeration. It would have been within the level of skill of one of ordinary skill in the art to determine a suitable air flow rate for such aeration.
Regarding claims 3-5 and 10, CN 110982750 (A) discloses inoculation of the Rhodopseudomonas palustris in Paragraph [0043] of the English translation, among other places. Limitations such as the size of the fermentation vessel be a matter of routine design choice for one of ordinary skill in the art.
Regarding claim 6, the temperature range recited therein embraces ambient temperature.
Regarding claim 8 CN 110982750 (A) discloses in the English Abstract that the culture is expanded.
Regarding claim 9, Yoon et al ‘353 teaches in Paragraph [0053] that the microbes can be activated prior to mixing.
Regarding claim 13, CN 110982750 (A) teaches in Paragraph [0013] that the culture medium is stirred at a stirring speed of 80-200 rpm and a temperature of 25-33 C.
Regarding claim 14, Yoon et al ‘353 discloses in Paragraph [0059] that the mixture is agitated for 1-12 hours.
Response to Arguments
Applicant’s argument, that one skilled in the art would not have been motivated to from Yoon et al ‘353 exclude specific microorganisms which are taught to be essential and beneficial to A1002, is not convincing, since applicant’s claims do not exclude Bacillus oleronius, Bacillus thuringiensis, Lysinibacillus sphaericus, Lactobacillus buchneri or Paenibacillus chibensis. Applicant’s argument, that one skilled in the art would not have been motivated to ignore the microorganisms disclosed in Paragraph [0004] of Yoon et al ‘353, is not convincing, since applicant’s claims do not exclude those microorganisms. Applicant’s argument, that CN107189781A teaches a soil remediation composition containing 13 or more different species of microorganisms, is not convincing, since CN107189781A is relied upon merely for its disclosure of Rhodopseudomonas palustris and Bacillus puilus as suitable bacterium for a soil remediation composition. Applicant’s argument, that none of the microorganisms in Jenkins’ working examples are required in claim 1, is not convincing, since the teachings of Jenkins are not limited to the working composition. Applicant’s argument, that Farmer et al’s working example focuses on a microbial composition continuing only Trichoderma harzianum and Bacillus amyloliquefaciens, is not convincing, since Farmer et al is relied upon merely for establishing the conventionality of an amount of 5% of chitin at col. 23, lines 49-55.
THIS ACTION IS MADE FINAL. Applicant 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WAYNE A LANGEL whose telephone number is (571) 272-1353. The examiner can normally be reached Monday through Friday from 8:15 am to 4:15 pm
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Zimmer can be reached at 571-270-3591. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WAYNE A LANGEL/Primary Examiner, Art Unit 1736
