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 .
Claim Status
The amended claim set filed 6 Feb 2026 is acknowledged. Claims 1, 3, and 7-8 are currently pending. Of those, no claims are currently amended, and no claims are new. Claims 2 and 4-6 are cancelled. Claims 1, 3, and 7-8 will be examined on the merits herein.
Priority
The Remarks (pg. 6) state: “The Examiner is requested to acknowledge Applicant's claim to foreign priority and receipt of the Priority Document as lodged in the USPTO's Patent Center with a mailroom dated of July 25, 2023.”
The Examiner sees that the KR10-2023-0016570 certified document was received with a date of 25 July 2023, and this document was acknowledged in the NFOA (par. 3). The Examiner does not see any other certified documents filed on 25 July 2023, so it appears that that applicant has not filed a certified copy of the KR10-2022-068109 application as required by 37 CFR 1.55, as stated in the NFOA (par. 4). Applicant has not filed an English translation of application KR10-2023-0016570, so support for the instant claims cannot be assessed. The effective filing date used for searching the art for claims 1, 3, and 7-8 is 2 Jun 2023.
Response to Arguments
The Applicants’ arguments filed 6 Feb 2026 are acknowledged. For clarity, in this action, said arguments will be referred to as “Remarks” and the Non-Final Office Action mailed 8 Oct 2025 will be referred to as “NFOA.”
The declarations under 37 CFR 1.132 filed 6 Feb 2026 are acknowledged and will be addressed below.
Objection(s) and Rejection(s) Withdrawn
The objections to the drawings and specification (NFOA par. 7-14) are withdrawn in view of the replacement drawings and amended specification filed 6 Feb 2026.
The warning that claim 6 will be objected to (NFOA par. 15) is moot because claim 6 has been cancelled.
The rejections of claims 3-8 under 35 U.S.C. 112(b) (NFOA par. 16-17) are withdrawn in view of the claim amendments and arguments.
The rejections of claims 2 and 4 under 35 U.S.C. 112(d) (NFOA par. 18-20) are withdrawn in view of the claim amendments and arguments.
Rejection(s) Maintained
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 112(a)
Claims 1, 3, and 7-8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
It is apparent that a Bacillus altitudinis KPB25-HP (accession number: KACC81238BP) strain or Bacillus safensis KPB31-HP (accession number: KACC81239BP) strain is required to practice the claimed invention. As such the biological material must be known and readily available or obtainable by a repeatable method set forth in the specification, or otherwise known and readily available to the public. If it is not so obtainable or available, the requirements of 35 USC 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, may be satisfied by a deposit of both isolates.
The process disclosed in the specification does not appear to be repeatable, it is not clear that the invention will work with commonly available material and it is not apparent if the biological materials considered necessary to make and use the invention is both known and readily available to the public. The lack of repeatability is evidenced by Figure 1, where the process was repeated but different bacteria were isolated.
It is noted that Applicants have deposited biological material but there is no indication in the specification as to public availability. Therefore, a deposit at a recognized depository may be made to obviate this rejection.
If the deposit is made under the terms of the Budapest Treaty, then a statement, affidavit or declaration by Applicants, or by an attorney of record over his or her signature and registration number, or by someone in a position to corroborate the facts of the deposit, that the instant invention will be irrevocably and without restriction released to the public upon the issuance of a patent, would satisfy the deposit requirement made herein.
If the deposit is a non-Budapest Treaty deposit, then in order to certify that the deposit meets the requirements set forth in 37 CFR 1.801-1.809 and MPEP 2402-2411.05, a statement, affidavit or declaration by Applicant or by an attorney of record over his or her signature and registration number, or by someone in a position to corroborate the facts of the deposit would satisfy the requirements herein by stating and providing that:
(a) During the pendency of the application, access to the invention will be afforded to the Commissioner upon request;
(b) All restrictions upon availability to the public will be irrevocably removed upon granting of the patent;
(c) The deposit will be maintained in a public depository for a period of 30 years, or 5 years after the last request or for the enforceable life of the patent, whichever is longer; and
(d) Provide evidence of the test of the viability of the biological material at the time of deposit (see 37 CFR 1.807).
Response to Arguments
Applicant argues (Remarks pg. 8) that they submitted a statement of availability.
The Park declarations under 37 CFR 1.132 filed 6 Feb 2026 are insufficient to overcome the rejection of claims 1-8 based upon 35 U.S.C. 112(a) (enablement) as set forth in the last Office action because: The claimed strains are Bacillus altitudinis KPB25-HP (accession number: KACC81238BP) strain or Bacillus safensis KPB31-HP (accession number: KACC81239BP), but the declarations discuss availability of Bacillus altitudinis KPB25 and Bacillus safensis KPB31. The instant specification is clear that these are different strains. Bacillus altitudinis KPB25 and Bacillus safensis KPB31 are natural isolates that were isolated from apple blossoms, apple shoots or soils in an apple orchard [Examples 1 and 6]. In contrast, Bacillus altitudinis KPB25-HP and Bacillus safensis KPB31-HP are non-natural, modified strains that have been evolved for oxidative stress tolerance relative to these parental strains and that are different from the natural isolates due to having improved properties [Example 8-10]. So, the declarations do not overcome the rejection because they do not discuss the deposit conditions for the claimed strains.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMELIA NICOLE DICKENS whose telephone number is (571)272-0381. The examiner can normally be reached M-R 8:30-4:30, and every other F 8:30-4:30 (EDT/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 at (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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/AMELIA NICOLE DICKENS/Examiner, Art Unit 1645
/DANIEL E KOLKER/Supervisory Patent Examiner, Art Unit 1645
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