DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Information Disclosure Statement
2. The information disclosure statements (IDS) submitted on 11/06/25 and 10/06/23 were filed and entered. The submissions are in compliance with the provisions of 37 CFR 1.97 and have been considered by the Examiner.
Claim Status
3. Claims 1, 3, 6, 9, 13, 14, 22, 24, 27, 30-32, 34-35, 43, 46, 50-53, 60, 65, and 90 are pending. Claims 2, 4-5, 7-8, 10-12, 15-21, 23, 25-26, 28-29, 32-33, 36-42, 44-45, 47-49, 54-59, 61-64, 66-89, and 91-94 are cancelled. Claims 3, 6, 9, 13, 14, 24, 27, 30- 32, 34, 43, 46, 50, 53, 60, and 90 are amended. Claims 65 and 90 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 01/16/23. Claims 1, 3, 6, 9, 13, 14, 22, 24, 27, 30-31, 34-35, 43, 46, 50-53, and 60 are under examination.
Claim Rejections - 35 USC § 102
4. 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.
5. 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.
6. Claims 1, 3, 6, 9, 13-14, 22, 27, 31, 34-35, 43, 46, 50-51, and 60 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Allen et al. 2019 (WO 2019/232049 A1; of record).
Allen teaches methods of making microencapsulated plant-beneficial gram negative bacteria for treating plants comprising a cross-linked alginate microcapsule encapsulating the bacteria (e.g. [0004, 0012]; and Example 2; meeting limitations found in instant claim 1). Allen teaches the methods of making the cross-linked alginate microcapsule comprises (a) atomizing a formulation (i.e. a precursor mixture) comprising alginates, including sodium alginate; an acid, including adipic acid (i.e. an acidic buffer); neutralized with a volatile base, including ammonia (i.e. a nitrogen-containing stabilizer); an insoluble salt of a multivalent ion, including calcium carbonate; and a Gram negative bacterium; and (b) volatizing to lower the pH of the formulation thereby dissolving the insoluble salt and making it available to cross link (i.e. an intermediate formulation); sonicating (i.e. high shear mixing) the microcapsules to yield diameters ranging from 40 to 80 microns and spray-drying at 49-53°C; e.g. see [0037-40, 0043-44, 0071]; meeting limitations found in instant claims 1, 3, 6, 22, 27, 31, 34, 35, 43, 50, 51 and 60). Allen teaches the compositions may also be used to coat seeds and then allowed to air dry at any temperature not deleterious to the seed, typically not greater than 30°C ([0066]; also meeting limitations found in instant claim 1, 43, and 60 with sufficient specificity). Allen teaches the wet basis moisture content was as low as 6.3% (i.e. less than 10%; see range of 6.34 to 6.86% for 0.1% Ca PPFM microcapsules; [0077]; meeting limitation found in instant claim 1). Allen teaches the bacteria include Pseudomonas (e.g. [0029, 0045]; meeting limitations found in instant claims 13 and 14). Allen teaches the compositions further comprise humectants to improve shelf life (i.e. stabilizers) including sugar alcohols, honey, molasses and/or urea (e.g. see [0050]; meeting limitations found in instant claims 6 and 9). Allen teaches the composition can be in a powder form (i.e. dry; see [0064] and Example 2).
With regards to the limitations of “…an evaporation rate of less than or equal to about 25,000 g/hr/m²” in claim 1 and “…less than or equal to about 15,000 g/hr/m²” in dependent claim 46; it is noted that these limitations do not add a positively recited step to the claimed method and therefore have been interpreted as expressions of the intended results from following the positively recited steps of combine, solidify via crosslinking, and dry, as taught by Allen; also see MPEP 2111.04.
Therefore, Allen anticipates the invention as claimed.
Claim Rejections - 35 USC § 103
7. 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.
8. 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.
9. 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.
10. Claims 1, 3, 6, 9, 13-14, 22, 24, 27, 30-31, 34-35, 43, 46, 50-51, 53 and 60 are rejected under 35 U.S.C. 103 as being unpatentable over Allen 2019 (WO 2019/232049).
The teachings of Allen are set forth above.
The differences between the prior art and the invention involve results effective variables, including (a) the aperture size of the device in dependent claim 24; (b) the temperature range for the high shear mixing in dependent claim 30; and/or (c) a water content of less than 5% in dependent claim 53.
However, with specific regards to the aperture size, Allen teaches the use of a Buchi B290 laboratory spray-dryer (see Example 2). However, since the Office does not have the facilities for examining and comparing Applicant’s aperture size with that of the prior art reference, the burden is now upon the Applicant to show an unobvious distinction between the characteristics of the claimed aperture size with that of the prior art; See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977) and In re Fitzgerald et al., 205 USPQ 594. Further, MPEP 2112.01 states that “When the PTO shows a sound basis for believing that the inventions of the Applicant and the prior art are the same, the Applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Further, with specific regards to the temperature, Allen is silent; but it is noted that 4-30°C encompasses room temperature. Thus, absent evidence to the contrary, the teachings of Allen meet this limitation with sufficient specificity; see MPEP 2144.05.
Furthermore, with specific regards to the water content (i.e. the concentration of water), Allen teaches the wet basis moisture content was as low as 6.3% (see [0077]) which meets the broadest reasonable interpretation of the limitation drawn to “…less than or equal to about 5%” in claim 53 with sufficient specificity; see MPEP 2144.05. In other words, 6% is about equal to 5%.
In addition, or in the alternative, with regards to all sizes, concentrations and temperatures found in instant claims 1, 24, 30, 43, 51, and 53, MPEP 2144.05 states differences in concentration and 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 (emphasis added). "[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 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For other cases applying this principle, see Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997)." In the instant case, it is the Office’s position that (A) there is no evidence of criticality for the aperture size, shearing temperature, or water content and (B) each is a results effective variable and thus there is motivation to optimize each through routine optimization; see MPEP 2144.05.
Accordingly, the claims are unpatentable over Allen.
Claim Rejections - 35 USC § 103
11. Claims 1, 3, 9, 13, 14, 22, 27, 30, 43, 46, 50-53 and 60 are rejected under 35 U.S.C. 103 as being unpatentable over Duong et al. 2017 (WO 2017/087939 A1; of record) in view of Shabaker 1951 (US 2,669,547).
Duong teaches methods for making compositions of microorganisms encapsulated in polymer gel microbeads applied onto seeds comprising first dispersing the microbe in sodium alginate (i.e. a precursor mixture), then exposing the mixture to a divalent cation cross-linker, including calcium chloride (i.e. an intermediate microbial composition), and dried in static air (i.e. encompasses room temperature which is over 15°C), by forced convection or via vacuum desiccation (i.e. forms encapsulated microbial composition; e.g. see abstract; [0018, 0021-23, 0027-28] and Embodiment #3; meeting limitations found in instant claims 1, 3, 22, 43, 50, and 60). Duong teaches the use of trehalose (i.e. a sugar) as a nutrient and to help microbes withstand desiccation (i.e. is a sugar-stabilizer; e.g. [0019]; meeting limitations found in instant claim 9). Duong teaches the microorganisms include Pseudomonas fluorescens (e.g. [0020]; meeting limitations found in instant claims 13 and 14).
With regards to the limitations of “…an evaporation rate of less than or equal to about 25,000 g/hr/m²” in claim 1 and “…less than or equal to about 15,000 g/hr/m²” in dependent claim 46; it is noted that these limitations do not add a positively recited step to the claimed method and therefore have been interpreted as expressions of the intended results from following the positively recited steps of combine, solidify via crosslinking, and dry, as taught by Duong; also see MPEP 2111.04.
With regards to concentrations and temperatures found in instant claims 1, 30, 43, 51, and 53, MPEP 2144.05 states differences in concentration and 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 (emphasis added). "[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 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For other cases applying this principle, see Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997)."
Therefore the differences between the prior art and the reference encompass the use of high shear mixing, including milling, to produce microbeads in claims 27, 30, 51 and 52; and the water content of less than or equal to about 5-10% in claims 1 and 53.
However, Shabaker teaches simple, improved and economical methods of pulverizing hydrogels into powders for compositions comprising particles sizes of 40 to 80 microns and having a desirable water content of about 5-10% (e.g. see columns 1, 3, 4 and Shabaker claims 1-4). Shabaker teaches any known type of grinding may be employed to make the gel beads of a desired powder size, but milling is preferred because it favors comminution to fairly uniform size range (see column 5).
Therefore, it would have been prima facie obvious, before the effective filing date of the claimed invention, to a person of ordinary skill in the art, to modify the methods of making encapsulated hydrogel microcapsules, as taught by Duong, by milling the hydrogel into gel powders of 5-10% water content and/or 40 to 80 micron diameters, thereby arriving at the claimed invention, to produce a composition with gel based microparticles of a fairly uniform size range, as taught by Shabaker. Therefore, each and every element is taught in the prior art and the combination has a beneficial result; however, the combination amounts to no more than a predictable use of prior art elements according to their established functions. The person of ordinary skill in the art would have been motivated to make the modification because milling was a preferred strategy and 5-10% water content was desirable for gel powders, as taught by Shabaker. The person of ordinary skill in the art would have had a reasonable expectation of success because Duong had already taught methods for making compositions of microorganisms encapsulated in hydrogel microbeads; and Shabaker had already taught similar methods of making hydrogel microbeads wherein milling to a desired size and water content were taught as desirable. Thus, the combination leads to expected results because each element performs the same function as it does individually.
Additionally, KSR International Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007), discloses that applying a known technique to a known device, method or product ready for improvement is obvious because a particular known technique is recognized as part of the ordinary capabilities of one skilled in the art. In the instant case, Duong contains a “base” method of making encapsulated microbial compositions comprising microbead particles; and Shabaker contains a similar method for making hydrogel microbeads, wherein the techniques of milling to produce a desired size range and water content are taught as advantageous. Thus, one of ordinary skill in the art would have recognized that applying the known technique taught by Shabaker would have yielded predictable results (i.e. the same advantages) and an improved system.
Therefore, the claimed invention is prima facie obvious in view of the teachings of the prior art, absent any convincing evidence to the contrary.
Pertinent Art
12. The following prior art, made of record and not relied upon, is considered pertinent to applicant’s disclosure because it is the Office’s position that one of ordinary skill in the art would recognize 4-30°C to encompass “room temperature”.
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Conclusion
13. No claims are allowed.
14. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARY MAILLE LYONS whose telephone number is (571)272-2966. The examiner can normally be reached on Monday-Friday 8 am to 5 pm EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http: //www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dan Kolker can be reached on (571)-272-3181. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARY MAILLE LYONS/Examiner, Art Unit 1645
February 10, 2026