DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
Claims 1-6, 10-11 and 16-21 are pending in the present application.
Claim 5 states “a form of granules, tablets, powders,… wettable granulates and powders or aerosols”. The examiner recommends amending the claim to state “a form of granules, tablets, powders,… wettable granulates, wettable powders or aerosols”.
Withdrawn Rejections
Rejections and/or objections not reiterated from the previous Office Action are hereby withdrawn.
Claim Objections
Claims 19-20 are objected to because of the following informalities: the recitation “consists of by lyophilised” should be amended to delete “by”. Appropriate correction is required.
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.
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, 5-6, 10-11, 16-17 and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Zorner et al. (WO 2020/219432 A1).
Regarding claim 1, Zorner et al. teach a composition comprising a first microorganism and a second microorganism, one or more growth by-products thereof, and, optionally, one or more sources of nutrients, wherein the first and second microorganisms are non-pathogenic, and wherein the first microorganism is Trichoderma harzianum and the second microorganism is Bacillus amyloliquefaciens (Claim 1). Zorner et al. teach that in one embodiment, the nutrient sources can include, for example, sources of magnesium, phosphate, nitrogen, potassium, selenium, calcium, sulfur, iron, copper, zinc, proteins, vitamins and/or carbon (pg. 3, ln. 27-30; pg. 15, ln. 28-31).
Regarding claims 2 and 16, Zorner et al. teach that the nitrogen source can be, for example, potassium nitrate, ammonium nitrate ammonium sulfate, ammonium phosphate, ammonia, urea, and/or ammonium chloride (pg. 20, ln. 30-33).
Regarding claims 3 and 17, Zorner et al. teach that the nitrogen source can be, for example, potassium nitrate (pg. 20, ln. 31).
Regarding claim 5, Zorner et al. teach that in certain embodiments, the composition is formulated as a concentrated liquid preparation, or as dry powder or dry granules that can be mixed with water and other components to form a liquid product. In one embodiment, the composition comprises microbes and growth by-products, as well as the substrate in or on which the microbes were cultivated, blended together and dried to form powder or granules (pg. 5, ln. 4-9). Zorner et al. further teach that the compositions may be applied in the form of a liquid, dry powder, dust, granules, microgranules, pellets, wettable powder, flowable powder, emulsions, microcapsules, oils, gels, pastes or aerosols (pg. 17, ln. 12-14).
Regarding claim 6, Zorner et al. teach methods for enhancing the health, growth and sturdiness of turf grass (pg. 2, ln. 25-27; Claim 1). Zorner et al. teach that the subject invention utilizes methods for cultivation of microorganisms and production of microbial metabolites and/or other by-products of microbial growth. The subject invention provides materials and methods for the production of biomass (e.g., viable cellular material), extracellular metabolites (e.g. small molecules and excreted proteins), residual nutrients and/or intracellular components (e.g. enzymes and other proteins). In one embodiment, the method includes supplementing the cultivation with a nitrogen source. The nitrogen source can be, for example, potassium nitrate, ammonium nitrate ammonium sulfate, ammonium phosphate, ammonia, urea, and/or ammonium chloride. These nitrogen sources may be used independently or in a combination of two or more (pg. 20, ln. 6-33).
Zorner et al. further teach that the microbe-based product of the subject invention is simply the fermentation medium containing the microorganism and/or the microbial metabolites produced by the microorganism and/or any residual nutrients. The product of fermentation may be used directly without extraction or purification. If desired, extraction and purification can be easily achieved using standard extraction and/or purification methods or techniques described in the literature (pg. 23, ln. 21-28).
Regarding claims 10-11, Zorner et al. teach that the methods comprise applying a soil treatment composition to the roots of the grass and/or to the soil in which the grass grows (pg. 2, ln. 30-31). Zorner et al. teach that certain species of Trichoderma are useful when added to soil, where they can multiply and grow in close association with plants' roots. They are capable of partially protecting the roots from invasion by other plant pathogenic fungi and other microbial and animal pests, in addition to helping to stimulate plant growth (pg. 10, ln. 34, to pg. 11, ln. 2). In addition to protecting plants from pathogens and pests, root colonization by Trichoderma spp. can enhance root growth and development, crop productivity, resistance to abiotic stresses, and bioavailability of nutrients (pg. 11, ln. 16-18).
In one embodiment, the method can comprise administering the composition into a tank connected to an irrigation system used for supplying water, fertilizers, pesticides or other liquid compositions to a field. Thus, the plant and/or soil surrounding the plant can be treated with the composition via, for example, soil injection, soil drenching, or using a center pivot irrigation system, or with a spray over the seed furrow, or with sprinklers or drip irrigators. In one embodiment, the method can comprise pouring the soil treatment composition into the tank of a handheld lawn and garden sprayer and spraying a plant and/or its surrounding environment with the mixture. The composition can also be mixed into a standard handheld watering can and poured onto soil. Additionally, the composition can be applied using a standard manual spreader, such as a broadcast spreader, a drop spreader, or a handheld spreader (pg. 17, ln. 32 to pg. 18, ln. 8; Claim 11).
Regarding claims 19-20, Zorner et al. teach that in one embodiment, the amount of each microorganism is at least 1 x 109 cells/g of the composition in dried form, including up to 1 x 1010, 1 x 1011, 1 x 1012 and even up to 1 x 1013 cells/g (pg. 3, ln. 8-9). In one embodiment, the composition comprises microbes and growth by-products, as well as the substrate in or on which the microbes were cultivated, blended together and dried to form powder or granules (pg. 5, ln. 4-9; pg. 17, ln. 26-28; pg. 24, ln. 7-9; Example 3).
Regarding claim 21, Zorner et al. teach controlling pests, including viruses, fungi, bacteria, parasites, arthropods and/or nematodes (pg. 7, ln. 16-21; pg. 11, ln. 8-15).
It would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare compositions according to Zorner et al. comprising a bacteria of the genus Bacillus and a fungus of the genus Trichoderma, as well as a nitrogen nutrient source, such as potassium nitrate. Such would have been obvious because Zorner et al. teach a composition comprising a first microorganism and a second microorganism, one or more growth by-products thereof, and, optionally, one or more sources of nutrients, wherein the first and second microorganisms are non-pathogenic, and wherein the first microorganism is Trichoderma harzianum and the second microorganism is Bacillus amyloliquefaciens, and further comprising a nutrient, such as potassium nitrate. Further, it would have been obvious to apply the compositions of Zorner et al. to at least one part of a plant, including the roots, seeds, propagation material, etc.
Response to Arguments
Applicant's arguments filed 4 February 2026 have been fully considered but they are not persuasive. Applicant argues that independent claims 1, 6, and 10 recite that the composition comprises "at least one nitrogen mineral source." In contrast, Zorner describes the application of a composition comprising a fungus of the genus Trichoderma and a bacteria of the genus Bacillus for enhancing health, growth and/or sturdiness of turf grass. At least one technical effect linked to this distinguishing feature of the composition comprising "at least one nitrogen mineral source" is to provide a composition that optimizes the plant's resistance to water stress, moderate osmotic stress, and high osmotic stress and that optimizes the plant's protection against pathogens.
Applicant argues that based on the description of Zorner and faced with the above-mentioned objective technical problem, it would not have been obvious, on or before the date of filing the instant patent application, for a person having ordinary skill in the art to apply Zorner to teach or suggest Applicant's claims. Indeed, Zorner does not concern the same technical problem and does not contain any incentive for the skilled person to add at least one nitrogen mineral source to a composition already comprising a bacterium of the genus Bacillus producing antifungal lipopeptides and a fungus of the genus Trichoderma in order to solve the above-mentioned objective technical problem.
The examiner respectfully argues that Zorner et al. teach that the compositions optionally comprise at least one nutrient, including nitrogen such as potassium nitrate, ammonium nitrate ammonium sulfate, ammonium phosphate, ammonia, urea, and/or ammonium chloride. Zorner et al. teach that the methods can further comprise adding materials to enhance microbe growth during application (e.g., adding nutrients to promote plant and/or microbial growth). In one embodiment, the nutrient sources can include, for example, sources of magnesium, phosphate, nitrogen, potassium, selenium, calcium, sulfur, iron, copper, zinc, proteins, vitamins and/or carbon (pg. 3, ln. 27-28; pg. 15, ln. 28-31; pg. 20, ln. 30-33).
Zorner et al. teach that enhanced plant sturdiness includes improved ability to ward off pests and/or diseases, to withstand physical insult, such as being pulled at or tread on, and to survive environmental stressors, such as drought and/or over-watering (pg. 6, ln. 22-26). In addition to protecting plants from pathogens and pests, root colonization by Trichoderma spp. can enhance root growth and development, crop productivity, resistance to abiotic stresses, and bioavailability of nutrients (pg. 11, ln. 16-18; Claims).
Therefore, Zorner et al. teach the desire to combine Trichoderma harzianum and Bacillus amyloliquefaciens with a nutrient, such as nitrogen, to enhance the health, growth and sturdiness of turf grasses, including improving the ability to survive environmental stressors. Also, Zorner et al. teach addition of a nutrient such as nitrogen in the culture medium to enhance microbe growth during application. The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Claims 4 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Zorner et al. (WO 2020/219432 A1) as applied to claims 1-3, 5-6, 10-11, 16-17 and 19-21 above, further in view of Pang et al. (CN 104326836 A).
Regarding claims 4 and 18, Zorner et al. do not explicitly disclose that the nitrogen source includes sodium nitrite, calcium nitrite, potassium nitrite or mixtures thereof, as instantly claimed.
Pang et al. teach fertilizer compositions comprising potassium nitrite as a nutrient salt (Claim 7).
It would have been prima facie obvious for a person of ordinary skill in the art prior to the effective filing date of the instant claims to prepare compositions according to Zorner et al. wherein the nutrient nitrogen is replaced with potassium nitrite. Such would have been obvious because Zorner et al. teach nitrogen compounds as nutrients, and Pang et al. teach potassium nitrite as a suitable fertilizer nutrient salt.
Response to Arguments
Applicant's arguments are the same as above. Therefore, the examiner’s response above is repeated here as well.
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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nathan W Schlientz whose telephone number is (571)272-9924. The examiner can normally be reached 10:00 AM to 6:00 PM, Monday through Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sue Liu can be reached at (571) 272-5539. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/N.W.S/Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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