DETAILED ACTION
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 .
Election/Restriction
Applicant’s election without traverse of the invention of Group I (claims 1-15) in the reply filed on 08/24/2026 is acknowledged.
Claims 16-28 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/07/2024 has been considered by the examiner.
Claim Objections
Claims 4-7 and 9 are objected to because of the following informalities:
Claim 4 recites “a rhizobacteria”. Rhizobacteria is a plural noun. The claim should read “a rhizobacterium” or “rhizobacteria”.
Claim 5 recites “ Bacillus Amyloliquifaciens, Bacillus Lichenformis, […], Bacillus Pumilis” which are misspellings of “Bacillus amyloliquefaciens, Bacillus licheniformis, […], Bacillus pumilus”.
Claims 6-7 recite “a […] microalgae”. Microalgae is a plural noun. The claim should read “a microalga” or “microalgae”.
Claim 9 recites “Trichoderma Harzarium” which is a misspelling of “Trichoderma harzianum”.
The claims do not use standard scientific nomenclature. Italics are used for biological taxa at the level of family and below. In particular:
In particular:
A genus (or genus group) is always italicized and capitalized, even when not paired with a species or subspecies name, and whether given in full or abbreviated: Allosaurus, Falco, Anas, and the "E." in E. coli. Supergenus and subgenus, when applicable, are treated the same way. A genus section is only capitalized.
Any lower (infrageneric) taxa are italicized, i.e. species and (when applicable) subspecies and other formal infraspecific names. They are never capitalized, even where based on a proper name (except for viruses). Examples: the tulip tree is Liriodendron chinense; all modern humans are Homo sapiens; the peninsula newt is Notophthalmus viridescens piaropicola. Except in viruses, a species (or subspecies) name is always preceded by the genus name, or a capitalized abbreviation of it when the meaning of the abbreviation is clear in context. Viruses are so narrowly named at the species level (e.g. Human herpesvirus-5) that including the genus would usually be superfluous, and they are capitalized like a genus. The word "virus" at the end of a viral species or genus name is not capitalized.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In regard to claim the term “stabilized” in claim 1 is a relative term which renders the claim indefinite. The term “stabilized” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear if stabilized is a functional quality that renders the material shelf-stable, temperature-stabilized or chemically stabilized.
Claim 7 recites the limitation "the green microalgae" in line 1. It is unclear if this refers only to the microalgae or the microalgae extract recited in claim 6.
Claim 15 recites ranges “at least about 1 month, at least about 2 months, or at least about 3 months” with the later ranges falling within the former broader range in the same claim. The claim is considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim Rejections - 35 USC § 103
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.
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.
Claims 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Barnett (YouTube, 2016) in view of Fruit Growers News (2021) and SDS (2021) as evidenced by SP-1 Classic Label (2022).
In regard to claim 1-15, Barnett teaches in the YouTube video a process whereby he introduced SP-1™ biological product into the stock tank solution [5:29]. Barnett further describes fertilizer in the stock tank solution [9:22]. Fruit Growers News describes SP-1 as a “combination of microbes, plant extracts and algae has consistently rejuvenated the rhizosphere and transformed soil structure for optimal fertilizer and micronutrient solubilization” [pg. 2, 1st para.]. SDS describes SP-1 as stabilized (e.g. chemically stable) [pg. 3, section 10]. The SP-1 classic label teaches the microbial consortium comprising:
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and a carrier (e.g. water based culture medium) [Label, pg. 1, guaranteed analysis]. Based on the prior art and Applicant’s description in the Specification of the commercially available product SP-1 [Spec, paras. 0036-0044], it necessarily follows that Barnett is describing a fertilizer composition (e.g. stock tank solution) comprising the stabilized microbial consortium as defined in claims 1 and 4-12 (e.g. SP-1) with a fertilizer. While Barnett does not explicitly describe the weight ratio of the microbial consortium and the fertilizer, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to combine the SP-1 microbial consortium with fertilizer in a 1:1 ratio. When faced with a mixture, one of ordinary skill in the art would be motivated by common sense to select a 1:1 ratio, a ratio that falls within the presently claimed amount, absent evidence of unexpected or surprising results. Case law holds that "[h]aving established that this knowledge was in the art, the examiner could then properly rely... on a conclusion of obviousness, 'from common knowledge and common sense of the person of ordinary skill in the art within any specific hint or suggestion in a particular reference.'" In re Bozek, 416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969). Fruit Growers News teaches use of the SP-1 microbial product with synthetic starter fertilizers [pg. 2, 3rd para.].
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer A Smith whose telephone number is (571)270-3599. The examiner can normally be reached Monday - Friday 9:30am-6pm 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, Amber R Orlando can be reached at (571) 270-3149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 September 11, 2026
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