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 .
Claims 1, 5, 7-10, 13, 16, 18, 23, 43, 198, 203, 290-294, 296-297, and 302-312 are pending in the application.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1, 5, 7-10, 13, 16, 18, 23, and 43 and gram negative nitrogen fixing microbe, as the nitrogen fixing microbe in the reply filed on May 12, 2026 is acknowledged.
Claims 10, 198, 203, 290-294, 296-297, and 302-312 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on May 12, 2026.
Claims 1, 5, 7-10, 13, 16, 18, 23, 43, 198, 203, 290-294, 296-297, and 302-312 are pending in the application. Claims 10, 198, 203, 290-294, 296-297, and 302-312 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and species, there being no allowable generic or linking claim. Claims 1, 5, 7-9, 13, 16, 18, 23, and 43 will presently be examined to the extent they read on the elected subject matter of record.
Priority
This application is a National Stage Entry of PCT/US2021/065051 filed December 23, 2021, which claims benefit to U.S. Provisional Application No. 63/130,404 filed December 23, 2020.
Information Disclosure Statement
Receipt of Information Statements filed February 16, 2024 and May 12, 2026 is acknowledged.
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01. There are hyperlinks on page 46 in lines 6 and 13. Correction is required.
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 § 102/ Claim Rejections - 35 USC § 103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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, 5, and 18, are rejected under 35 U.S.C. 102(a)(1) and35 U.S.C. 102(a)(2) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Simmons (U.S. 4,465,017). Simmons cited by Applicant on the IDS dated 2/16/2024.
Regarding claims 1 and 5, Simmons discloses seeds are placed in seed hopper 12 (inlet for receiving seeds). Switch 16 is adjusted to control the speed of star feeder 13. Seed passes through chute 18 into upper revolving drum 10 whose speed 13 is adjusted by switch 30 (1st transport mechanism to deliver seeds from the inlet to the treatment dispersal assembly).
Seeds vigorously tumble in upper drum 10 and are lifted by tines 46. Each turn of star feeder 13 causes actuator wheel 51 to trip microswitch 49 and open adhesive supply valve 48 (treatment dispersal assembly for applying a treatment to seeds, receive 1st coating). Adhesive flows to metal pipe 43 and down tines 46. Seed is coated with adhesive by passing near and around tines 46.
The adhesive coated seeds are checked through inspection port 38. Air blower 60 is adjusted to supply drying air to dry the adhesive until the seeds are tacky enough to pick up dry powder and not clump to each other. Adhesive valve 48 and star feeder 13 may also be adjusted to achieve tackiness.
Paddles 36 and the incline of upper drum 10 cause the coated, tacky seed to pass through slots 56, ducting 70 and into lower drum 11.
Regarding claim 18, Drum 11 is also inclined at about ten degrees from the horizontal to aid the flow of seeds to discharge drum end 72. Lower drum 11 is preferably longer than upper drum 10 to provide greater seed retention time for powder placement (recess comprises surfaces that are inclined relative to a bottom surface of the member).
Powder feeder 120 supplies superabsorbent, nutrients, microorganisms, micronutrients, herbicides, fungicides, insecticides and bactericides in any combination and relative percentage desired. Several powder feeders 120 may be utilized. Also, all seed coating additives, except dry mix microorganisms, may be admixed with liquid adhesive in container 40.
Powder enters mixer distributor 103 where individual powders are mixed in solid entry section 108 due to its rotating movement and inclined lifters 110. Mixed powder enters screen 106 and is dusted as a fog onto the tumbling, tacky seeds within lower drum 11. Screen 106 functions in a manner similar to flour sifters. Coarser powders tend to pick up free moisture decreasing adherence of powder to the coated, tacky seeds.
Individual motor 125 controlling powder feeders 120 are adjusted to provide enough powder to completely cover the tacky seeds. Inspection port 92 may be utilized to determine if enough powder is being supplied (apply an overcoat to the received seeds).
The seed, now coated with a dry powder and no longer tacky, passes out of lower drum 11 into a packaging system (2nd transport mechanism configured to deliver treated seeds from the treatment dispersal assembly to the outlet, outlet for discharging seeds) (col 8, lines 39-68-col. 8, lines 1-15).
Simmons disclose the microorganisms, including Pseudomonas, Arthrobacter, Nocardia, Rhizobacter, Aspergillus niger, Bacillus, mixed anaerobic and mixed facultative organisms prepared in a freeze-dried or otherwise dormant state, may be beneficially added as a powder to the tacky seed.
Simmons does not specifically demonstrate the overtreatment comprises at least on microbial. However, it would have been obvious to one of ordinary skill in the art to apply a microbial because Simmons specifically discloses that the powder feeder 120 supplies microorganisms and other beneficial nutrients and pesticides in any combination and relative percentage desired. As such, one of ordinary skill in the art would have been motivated to use the microorganisms as the powder treatment because Simmons discloses that treating seeds with beneficial bacteria allows these bacterium to get a head start over natural, undesirable bacteria that impede plant growth (col. 2, lines 42-45). Direct inoculation of the seed with bacteria places the bacteria in the most advantageous position for beneficial infection (col. 5, lines 22-24). Also, the addition of plant growth promoting bacteria allows their establishment in dry soils due to their combination with the supersorbent (col. 5, lines 29-32).
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, 5, 13, 16, 23 and 43 are rejected under 35 U.S.C. 103 as being unpatentable over Simmons (U.S. 4,465,017). Simmons cited by Applicant on the IDS dated 2/16/2024.
Applicant’s Invention
Applicant claims a seed treatment system, comprising: an inlet for receiving seeds; a treatment dispersal assembly for applying a treatment to seeds; an outlet for discharging seeds; a first transport mechanism configured to deliver seeds from the inlet to the treatment dispersal assembly; and a second transport mechanism configured to deliver treated seeds from the treatment dispersal assembly to the outlet, wherein during operation, the system is configured to: receive seeds comprising a first coating; and applying an overtreatment to the received seeds that comprises at least one microbial. Applicant claims the overtreatment comprises a polymer and wherein the system is configured to apply the polymer and the at least one microbial simultaneously to the seeds. Applicant claims the overtreatment comprises a protecting agent that preserves viability of the at least one microbial.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Simmons with respect to the 35 U.S.C. 103 rejection is hereby incorporated and are therefore applied in the instant rejection as discussed above.
Simmons teaches it is well known that some plants such as legumes which include soybeans and alfalfa, have nitrogen fixing bacteria as a necessary component in a symbiotic relationship. The root nodule bacteria Rhizobium bathes the root hairs of the plant and fixes nitrogen in the nodules that are formed (col. 4, lines 26-33). Simmons teaches microorganisms, including Pseudomonas, Arthrobacter…Rhizobacter…Bacillus, mixed anaerobic and mixed facultative organisms prepared in a freeze-dried or otherwise dormant state, may be beneficially added as a powder to the tacky seed (col. 4, lines 64-68-col. 5, line 1).
Regarding claims 13 and 43, Simmons teaches the addition of microorganisms to the seed, when coupled with the absorbents detailed provides an environment which maintains the dormancy of the bacteria due to the low moisture content while planting. Upon planting, coated seed, due to is absorbent materials, absorbs and release water for use by the bacteria and fungi which triggers life into the dormant microorganisms as well as sustains their life (col. 5, lines 4-24).
Simmons teaches the superabsorbent powders are available which absorb many times their weight in water. Simmons teaches the compounds are generally starch containing graft copolymers. The polymers are cross linked so as not to be water soluble (col. 3, lines 57-63).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Simmons does not specifically disclose the first coating comprises a biocide, as claimed in claim 7, a member configured to expose the seeds to the treatment, wherein the member is cone-shaped and positioned in a housing of the system such that an apex of the member faces the inlet, as claimed in claim 16 or the treatment dispersal assembly comprises an atomizer configured to generate droplets of a treatment fluid, as claimed in claim 23.
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to use the teachings of Simmons and include a biocide in the first coating. Simmons teaches that the powder feeder 120 supplies herbicides, fungicides, insecticides, and bactericides in any combination and relative percentage desired. One of ordinary skill in the art would have been motivated to add either of these to the first coating because Simmons specifically teaches that all seed coating additives, except dry mix microorganisms, may be admixed with the liquid adhesive in container 40. Since the liquid adhesive is the first coating, it would have been obvious to the skill artisan, that the biocides, including herbicides, fungicides, insecticides, and bactericides can be added to the first coating, with a reasonable expectation of success.
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to use the teachings of Simmons and have a member that is cone-shaped in the housing of the system such that an apex of the member faces the inlet. Simmons teaches powder materials are supplied to mixer distributor 103 from a powder feeder 120. The powder feeder 120 includes hopper 121. Hoppers 121 feed powder through star valve 123 which are controlled by variable speed motor 125 and switch 126. Powder exits powder feeder 120 through plastic tubing 130 which passes through fixed plate 131 and extends slightly into mixer distributor 103.
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. Based on this teaching and the schematic, the powder feeder 120 includes hopper 121. This hopper is cone-shaped. The adhesive coated seed passes through slot 55 of drum 10 through ducting 70 and enters lower revolving drum 11, which is constructed in a manner similar to upper revolving drum 10. Inlet drum end 100 includes central opening 101 though which seed enters drum 11 from ducting 70. It would have been obvious to one of ordinary skill in the art that these limitations read on the limitations of claim 16.
Regarding the limitation of wherein the treatment dispersal assembly comprises an atomizer configured to generate droplets of a treatment fluid, Simmons teaches a series of solid tines or wires 46 are attached to the metal pipe 43 hanging downward into drum 10 like tines on a comb, such that liquid flowing through perforations 45 flows along tines 46 causing liquid to drop down onto seeds in drum 10. Based on this teaching, one of ordinary skill in the art would have found it obvious that this teaching reads on generating droplets of the treatment fluid, without evidence to the contrary.
Therefore, the claimed 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.
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Simmons (U.S. 4,465,017) as applied to claims 1, 5, 13, 16, 23 and 43 above, and further in view of the Proctor Publication (1958, Nature, Proctor). Simmons cited by Applicant on the IDS dated 2/16/2024.
Applicant’s Invention
Applicant claims a seed treatment system, comprising: an inlet for receiving seeds; a treatment dispersal assembly for applying a treatment to seeds; an outlet for discharging seeds; a first transport mechanism configured to deliver seeds from the inlet to the treatment dispersal assembly; and a second transport mechanism configured to deliver treated seeds from the treatment dispersal assembly to the outlet, wherein during operation, the system is configured to: receive seeds comprising a first coating; and applying an overtreatment to the received seeds that comprises at least one microbial. Applicant claims the one microbial comprises at least one nitrogen fixing microbe and the microbial is a gram-negative nitrogen fixing microbe.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Simmons with respect to the 35 U.S.C. 103 rejection is hereby incorporated and are therefore applied in the instant rejection as discussed above.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Simmons does not specifically disclose the one microbial comprises at least one nitrogen fixing microbe, as claimed in claim 8, or the microbial is a gram-negative nitrogen fixing microbe, as claimed in claim 9. It is for this reason the Proctor Publication is added as a secondary reference.
Proctor teaches that nitrogen fixation by Gram-negative bacteria other than the Azotobacter have been made in the past. Nitrogen fixation by particular strains of Pseudomonas has been reported (page 891, col. 1, paragraph 1). Proctor teaches the demonstration of nitrogen fixation by an apparently inducible enzyme system in a ‘random’ selection of strains of Pseudomonas and Achromobacter confirms and extends the investigations from the other laboratories. In the pseudomonads it provides yet another example of the adaptive versatility of the genus. Because of the widespread occurrence of both genera in the soil and surface waters, their importance in nitrogen fixation may be considerable (page 891, col. 2, paragraph 4).
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Simmons and the Proctor Publication and use at least one nitrogen fixing microbe and that the microbe is at least a gram-negative nitrogen fixing microbe. Simmons teaches microorganisms, including Pseudomonas, Arthrobacter…Rhizobacter…Bacillus, mixed anaerobic and mixed facultative organisms prepared in a freeze-dried or otherwise dormant state, may be beneficially added as a powder to the tacky seed. It would have been obvious to one of ordinary skill in the art to use a nitrogen-fixing microbe because Simmons teaches that beneficial microorganisms include Pseudomonas. Based on the teachings of the Proctor Publication, Pseudomonas is a gram-negative nitrogen fixing microbe. As such, it would have been obvious to the skilled artisan that gram-negative nitrogen fixing microbes are used in the operations taught by Simmons, with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Therefore, the claimed 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.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 5, 16, 18, and 23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 19, 62, and 103 of copending Application No. 18/875,618 (‘618). Although the claims at issue are not identical, they are not patentably distinct from each other because each is directed to a seed treatment system for applying an agriculturally useful microbe to seed, comprising an inlet for receiving seeds, a treatment dispersal assembly and an outlet for discharging treated seeds (claims 1, 5, 16, 18, and 23, instant invention; claims 19, 62, and 103, copending Application No. ‘618). Each claims a deliver mechanism configured to deliver at least a portion of a treatment mixture comprising the treatment components (claim 1, instant invention; claims 19, 62, and 103, copending Application No. ‘618). For these reasons, one of ordinary skill in the art would conclude that the invention defined in the instant claims are obvious over the claims of copending application ‘618.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
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/ANDRIAE M HOLT/ Examiner, Art Unit 1614
/ALI SOROUSH/ Supervisory Patent Examiner, Art Unit 1614
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