DETAILED ACTION
Previous Rejections
Applicant’s arguments, filed 03/30/2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Rejections - 35 USC § 103 - Obviousness
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.
Claim(s) 1-5 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Andersch et al (US 2015/0296804 A1).
Andersch taught a method for controlling unwanted microorganisms, characterized in that a disclosed composition was applied to phytopathogenic fungi, phytopathogenic bacteria and/or their habitat [0275]. Application routes included soil application and seed treatment [0019]. The composition included one or more biological control agents [abstract] against Aphanomyces euteiches [0287], where the biological control agents included Streptomyces griseoviridis [0059, 0061].
Claim 1 is rendered prima facie obvious over the teachings of Andersch, because it is prima facie obvious to combine prior art elements according to known methods, in order to yield predictable results. In the instant case, all the claimed elements (e.g., protecting a plant from Aphanomyces euteiches with biological control agents, including Streptomyces griseoviridis) were known in the prior art (e.g., Andersch) and one skilled in the art could have combined the elements as claimed, by known methods, with no change in their respective functions, and the combination would yield nothing more than predictable results (e.g., a biological control composition and methods thereof for controlling plant pathogens) to one of ordinary skill in the art. MPEP 2143.A.
Andersch reads on claims 1 and 11.
Further, and regarding the instant claim 11, the claim recites the transitional phrase “consist essentially of”. However, absent a clear indication in the specification or claims of what the basic and novel characteristics of the claimed composition actually are, the term “consisting essentially of” is construed as being equivalent in meaning to the term “comprising”. See MPEP 2164.06(b). No such clear indication is seen here.
Claim 2 is rendered prima facie obvious because Andersch taught Mycostop® [0059].
Claims 3-4 are rendered prima facie obvious because Andersch taught peas, lentils and alfalfa beans [0245, 0304].
Claim 5 is rendered prima facie obvious because Andersch taught a carrier, in a concentration of between 1×105 and about 1×1010 spores/g [0034, 0051].
The instant claim 5 recites between about 102 to about 1011 CFU/g. Andersch taught between 1×105 and about 1×1010 spores/g. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", a prima facie case of obviousness exists. MPEP 2144.05 A.
Response to Arguments
Applicant’s arguments with respect to the instant claims 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
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.
/CELESTE A RONEY/Primary Examiner, Art Unit 1612
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