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 claim amendment and response filed on August 28, 2026 are received.
Claim 5 is canceled.
Claims 1-4 and 6-22 are pending in this application, claims 19-22 are withdrawn from further consideration, and claims 1-4 and 6-18 are being examined.
Answer to Arguments:
Withdrawn Rejection(s):
The rejection of claims 6 and 11-13 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite, is withdrawn due to the amendment to claims 6 and 11-13 filed on 08/28/2026.
The rejection of claims 9-16 under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form, is withdrawn due to the amendment to claims 9-16 filed on 08/28/2026.
The rejection of claims 1-7, 9-17 under 35 U.S.C. 102(a)(1) as being anticipated by Pliego et al. (Plant Soil, 2011, 340, 505–520), is withdrawn due to the amendment to claim 1 and cancelation of claim 5 filed on 08/28/2026.
With respect to the above-mentioned rejections applicant arguments are moot because the rejections are withdrawn due to the amendment to claims filed on 08/28/2026.
With respect to Pliego et al. as applied in the rejection of claims (previously 1-18) under 35 U.S.C. 103 as being unpatentable over Pliego et al. and Kinkel et al. and in the rejection of claims 1-7, 9-17 under 35 U.S.C. 102(a)(1), applicant argues that Pliego et al. teach BCA of phytopathogenic soil fungus and do not teach “bacterial pathogen” (as required by amended claim 1) (See p. 3 of Remarks filed on 08/28/2026).
However, as explained below, regarding “bacterial pathogen” in claim 1 (as amended), Pliego et al. teach biological control agents (BCAs) act against bacterial (plant) pathogen (e.g., Agrobacterium tumefaciens) (See for example, p. 507 Table 1, 3rd column, 8th row), As such, Pliego et al. envision applying the selecting method by co-culturing each of the bacterial isolates with an organism-associated bacterial pathogen. Moreover, before the effective filing date of the invention, Kinkel et al. teach bacteria among plant pathogens (soil-borne bacterial pathogens, including species of Erwinia, … Pseudomonas, etc.) (See for example, p. 26 1st paragraph).
Therefore, a person of ordinary skill in the art before the effective filing date of the invention would have been motivated to apply the method taught by Pliego et al. and (a) co-culture each bacterial isolates with an organism-associated bacterial pathogen; (b) determining the level of inhibition activity for each bacterial isolate against the organism-associated bacterial pathogen; (c) co-culturing each of the bacterial isolates with an organism health-promoting bacteria; (d) determining the level of inhibition activity for each bacterial isolate against the organism health-promoting bacteria; and (e) selecting the one or more bacterial isolates for promoting organism health if the bacterial isolate has inhibition activity against the organism-associated bacterial pathogen according to step (b), and the bacterial isolate has substantially no inhibition activity against the organism health-promoting bacteria according to step (d), with a reasonable expectation of success in providing the claimed method of selecting one or more organism-associated bacterial isolates for promoting organism health.
As such, for the reasons mentioned immediately-above the 103 rejection is maintained.
Claim Rejection - 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.
Claim 1-4 and 6-18 are rejected under 35 U.S.C. 103 as being unpatentable over Pliego et al. (Plant Soil, 2011, 340, 505–520) and Kinkel et al. (WO 2020/023808 A1, which is also cited in the IDS filed on 05/01/2026).
Regarding claim 1, Pliego et al. teach a method of selecting one or more organism-associated bacterial isolates for promoting organism health, comprising: (a) co-culturing each of the bacterial isolates with an organism-associated phytopathogen; b) determining the level of inhibition activity for each bacterial isolate against the organism-associated phytopathogen; (c) co-culturing each of the bacterial isolates with an organism health-promoting bacteria; (d) determining the level of inhibition activity for each bacterial isolate against the organism health-promoting bacteria; and (e) selecting the one or more bacterial isolates for promoting organism health if: the bacterial isolate has inhibition activity against the organism-associated phytopathogen according to step (b); and the bacterial isolate has substantially no inhibition activity against the organism health-promoting bacteria according to step (d) (dual plate assay searching for antagonistic bacteria, screening for bacterial control agent or BCA of soil phytopathogenic fungus of avocado root rot, and correlation between biocontrol and colonization, and selection of competitive root tip colonizers) (See for example, p. 514 both columns and p. 515 figure 1 and related description, and p. 510 both columns).
Regarding “bacterial pathogen” in claim 1 (as amended), Pliego et al. also teach biological control agents (BCAs) act against bacterial (plant) phytopathogen (e.g., Agrobacterium tumefaciens) (See for example, p. 507 Table 1, 3rd column, 8th row), As such, Pliego et al. envisions applying the selecting method by co-culturing each of the bacterial isolates with an organism-associated bacterial pathogen.
Moreover, before the effective filing date of the invention, Kinkel et al. teach bacterial among plant pathogens (soil-borne bacterial pathogens, including species of Erwinia, … Pseudomonas, etc.) (See for example, p. 26 1st paragraph).
Therefore, a person of ordinary skill in the art before the effective filing date of the invention would have been motivated to apply the method taught by Pliego et al. and (a) co-culture each bacterial isolates with an organism-associated bacterial pathogen; (b) determining the level of inhibition activity for each bacterial isolate against the organism-associated bacterial pathogen; (c) co-culturing each of the bacterial isolates with an organism health-promoting bacteria; (d) determining the level of inhibition activity for each bacterial isolate against the organism health-promoting bacteria; and (e) selecting the one or more bacterial isolates for promoting organism health if the bacterial isolate has inhibition activity against the organism-associated bacterial pathogen according to step (b), and the bacterial isolate has substantially no inhibition activity against the organism health-promoting bacteria according to step (d), with a reasonable expectation of success in providing the claimed method of selecting one or more organism-associated bacterial isolates for promoting organism health.
Regarding claim 2, Pliego et al. teach the organism is a non-microbial eukaryote (plants) (See for example, p. 511 left-hand column 3rd paragraph).
Regarding claim 3, Pliego et al. teach the non-microbial eukaryote is an aquatic organism, a terrestrial organism, a human, or a plant (plants) (See for example, p. 511 left-hand column 3rd paragraph).
Regarding claim 4, Pliego et al. teach the organism is a plant (plants) (See for example, p. 511 left-hand column 3rd paragraph).
Regarding claim 6, Pliego et al. teach health-promoting is growth-promoting, producing a bacteriocin, or an antimicrobial (stimulate plant growth) (See for example, p. 510 right-hand column 2nd paragraph).
Regarding claim 7, Pliego et al. teach the organism health-promoting bacteria is a rhizobacteria, a probiotic, or a plant commensal (rhizobacteria) (See for example, p. 510 right-hand column 2nd paragraph).
Regarding claim 9, Pliego et al. teach the method is: selecting one or more plant-associated bacterial isolates for promoting plant health, comprising: (a) co-culturing each of the bacterial isolates with a phytopathogen; (b) determining the level of inhibition activity for each bacterial isolate against the phytopathogen; (c) co-culturing each of the bacterial isolates with a plant growth-promoting rhizobacteria, a probiotic, or a plant commensal; (d) determining the level of inhibition activity for each bacterial isolate against the plant growth-promoting rhizobacteria, probiotic, or plant commensal; and e)selecting the one or more bacterial isolates for promoting plant health if: the bacterial isolate has inhibition activity against the phytopathogen according to step (b); and the bacterial isolate has substantially no inhibition activity against the plant growth-promoting rhizobacteria, probiotic, or plant commensal according to step (d) (dual plate assay searching for antagonistic bacteria, screening for bacterial control agent or BCA of soil phytopathogenic fungus of avocado root rot, and correlation between biocontrol and colonization, and selection of competitive root tip colonizers) (See for example, p. 514 both columns and p. 515 figure 1 and related description, and p. 510 both columns).
Regarding “bacterial pathogen” in claim 9 (as amended), Pliego et al. also teach biological control agents (BCAs) act against bacterial (plant) phytopathogen (e.g., Agrobacterium tumefaciens) (See for example, p. 507 Table 1, 3rd column, 8th row), As such, Pliego et al. envisions applying the selecting method by co-culturing each of the bacterial isolates with an organism-associated bacterial pathogen.
Regarding claim 10, Pliego et al. teach the method of promoting plant health is promoting one or more plant health parameters selected from the following list: (i) disease resistance; (ii) the ability to produce or change the concentration of indoleacetic acid, gibberellic acid, cytokinins, and/or ethylene; (iii) the ability to perform a symbiotic N2 fixation; (iv) the ability to produce siderophores, antibiotics, or cyanide; (v) the ability to solubilize mineral phosphates and nutrients; and (vi) the ability to change performance of symbiotic N2 fixation, nodulation, or nodule occupancy (biological control agent or BCA, suppress disease) (See for example, p. 505 right-hand column last paragraph).
Regarding claim 11, Pliego et al. teach the bacterial phytopathogen is Erwinia amylovora, Agrobacterium tumefaciens, Pseudomonas syringae pv. Tomato, P. cichorii, Xanthomonas campestris pv. armoraciae and pv. vesicatoria, Ralstonia solanacearum, X. axonopodis pv. glycines, X. axonopodis pv. vasculorum, X vasicola pv. holcicola, X vasicola pv. vasculorum, X campestris pv. campestris, or Xylella fastidiosa (Agrobacterium tumefaciens) (See for example, p. 507 Table 1, 3rd column, 8th row).
Regarding claim 12, Pliego et al. teach the plant growth-promoting rhizobacteria is Alcaligens species, Arthrobacter species, Bacillus cereus, B. circulans, B. coagulans, B. lichen formis, B. megaterium, B. pseudomycoides, B. pumilus, Enterobacter aerogenes, E. cloacae, E. taylorae, Klebsiella oxytoca, K. pneumoniae, P. aeruginosa, Paraburkholderia species, Serratia marcescens, S. plymuthica, S. rubidaea, and Acinetobacter baumanniiorother (Pseudomonas species) (See for example, p. 507 Table 1, 3rd column, 9th row).
In addition, because the type of plant in the claim is not stipulated, therefore the claimed plant growth-promoting rhizobacteria would have been obvious.
Regarding claim 13, Pliego et al. teach the plant commensal is Arabidopsis species, Citrobacter amalonaticus, C. freundii, C. koseri, Escherichia coli, Hafnia alveior, Morganella morganiior, Pantoea vagans, Proteus mirabilis, Providencia rettgeri, Salmonella enterica, or Stenotrophomonas maltophili (Arabidopsis) (See for example, p. 511 left-hand column 3rd paragraph).
Regarding claim 14, Pliego et al. teach co-culturing is co-culturing on a transwell plate, in a microfluidic platform, on a solid support, or in a broth (plate assay) (See for example, p. 514 right-hand column 1st paragraph).
Regarding claim 15, Pliego et al. teach co-culturing is co-culturing on a solid support (agar plates) (See for example, p. 514 right-hand column 1st paragraph).
Regarding claim 16, Pliego et al. teach a solid support comprises a plate, a three-dimensional scaffold, a hydrogel, or a microarray (agar plates) (See for example, p. 514 right-hand column 1st paragraph).
Regarding claim 17, Pliego et al. teach the plate is a nutrient agar plate (agar plates) (See for example, p. 514 right-hand column 1st paragraph).
Pliego et al. do not teach substantially no inhibition comprises a zone of inhibition of less than 5 mm (claim 8), and co-culturing on a broth (claim 18).
However, Kinkel et al. teach zone of inhibition of less than 5 mm (zone of inhibition for each plant pathogen tested) (See for example, p. 121 and paragraph [0370] Table 1), and further teach co-culturing on a broth (microbial isolates inoculated in a nutrient broth, etc.) (See for example, p. 143 paragraph [0427]).
Therefore, a person of ordinary skill in the art before the effective filing date of the invention, would have been capable of applying the teachings of Kinkel et al. in the selection method taught by Pliego et al. with a reasonable expectation of success in providing the method of selecting one or more organism-associated bacterial isolates for promoting organism health, wherein co-culturing comprises co-culturing in a broth and wherein substantially no inhibition comprises a zone of inhibition of less than 5 mm.
Conclusion(s):
No claim(s) is allowed at this point.
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.
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/KADE ARIANI/Primary Examiner, Art Unit 1651
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