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 .
Election/Restrictions
2. Applicant’s election of Group I in the reply filed on May 8, 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 12-26 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected groups, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on May 8, 2026.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
3. Claim 3 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The specification lacks complete deposit information for the deposit of Bacillus amyloliquifaciens strain ENV503. Because it is not clear that cell lines possessing the properties of Bacillus amyloliquifaciens strain ENV503 are known and publicly available or can be reproducibly isolated from nature without undue experimentation and because the claims require the use of Bacillus amyloliquifaciens strain ENV503, a suitable deposit for patent purposes is required. Without a publicly available deposit of the above cell line, one of ordinary skill in the art could not be assured of the ability to practice the invention as claimed. Exact replication of the cell line is an unpredictable event.
If a deposit has been made under the provisions of the Budapest Treaty, filing of an affidavit or declaration by applicant or assignees or a statement by an attorney of record who has authority and control over the conditions of deposit over his or her signature and registration number stating that the deposit has been accepted by an International Depository Authority under the provisions of the Budapest Treaty, that all restrictions upon public access to the deposit will be irrevocably removed upon the grant of a patent on this application and that the deposit will be replaced if viable samples cannot be dispensed by the depository is required. This requirement is necessary when deposits are made under the provisions of the Budapest Treaty as the Treaty leaves this specific matter to the discretion of each State. Amendment of the specification to recite the date of deposit and the complete name and full street address of the depository is required.
If the deposit has not been made under the provisions of the Budapest Treaty, then in order to certify that the deposits comply with the criteria set forth in 37 CFR §1.801-1.809, assurances regarding availability and permanency of deposits are required. Such assurance may be in the form of an affidavit or declaration by applicants or assignees or in the form of a statement by an attorney of record who has the authority and control over the conditions of deposit over his or her signature and registration number averring:
(a) during the pendency of this application, access to the deposits will be afforded to the Commissioner upon request;
(b) all restrictions upon the availability to the public of the deposited biological material will be irrevocably removed upon the granting of a patent on this application;
(c) the deposits will be maintained in a public depository for a period of at least thirty years from the date of deposit or for the enforceable life of the patent of or for a period of five years after the date of the most recent request for the furnishing of a sample of the deposited biological material, whichever is longest; and
(d) the deposits will be replaced if they should become nonviable or non-replicable.
In addition, a deposit of biological material that is capable of self-replication either directly or indirectly must be viable at the time of deposit and during the term of deposit. Viability may be tested by the depository. The test must conclude only that the deposited material is capable of reproduction. A viability statement for each deposit of a biological material not made under the Budapest Treaty must be filed in the application and must contain:
1) The name and address of the depository;
2) The name and address of the depositor;
3) The date of deposit;
4) The identity of the deposit and the accession number given by the depository;
5) The date of the viability test;
6) The procedures used to obtain a sample if the test is not done by the depository; and
7) A statement that the deposit is capable of reproduction.
As a possible means for completing the record, applicant may submit a copy of the contract with the depository for deposit and maintenance of each deposit. If the deposit was made after the effective filing date of the application for patent in the United States, a verified statement is required from a person in a position to corroborate that the Bacillus amyloliquifaciens strain ENV503 cell line described in the specification as filed is the same as that deposited in the depository. Corroboration may take the form of a showing of a chain of custody from applicant to the depository coupled with corroboration that the deposit is identical to the biological material described in the specification and in the applicant's possession at the time the application was filed.
Applicant's attention is directed to In re Lundack, 773 F.2d. 1216, 227 USPQ 90 (CAFC 1985) and 37 CFR §1.801-1.809 for further information concerning deposit practice.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
4. Claims 1-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Autkar et al., (WO2022130188 published 2022-06-23; priority to 2021-12-14)
The claims are drawn to a stabilized biofungicide composition comprising:
a biological fungicide comprising a rhizobacterium; and a pesticide, wherein the biological fungicide and the pesticide are in a weight ratio of from about 1:1 to about 1000:1.
Autkar et al., describe a agrochemical composition comprising (1) at lease one compound of formula (I) and (2) at least one further active compound [abstract]. The novel agrochemical composition which comprises one or more piperidin thiazole compounds of formula (I) as a component (1) and one or more fungicidally active compounds (II) and/or one or more insecticidally or nematicidally active compounds (III) as a component (2) Field of Invention]. The use of pipyridine thiazole compounds as fungicides are well known [Background of Invention]. Combinations of fungicides are often used to facilitate disease control and to retard resistance development. It is desirable to broaden the spectrum of activity and to increase the efficacy of disease control by using mixtures of active ingredients that provide a combination of curative, systemic and preventative control of plant pathogens. Also desirable are combinations that provide greater long lasting control to allow for extended spray intervals. It is also very desirable to combine fungicidal agents that inhibit different biochemical pathways in the fungal pathogens to prevent or retard development of resistance to any one particular plant disease control agent. Fungicides that effectively control plant pathogenic fungi with a reduced quantity of the chemical agent released in the environment are always desirable. Also there is constant need to widen the spectrum of activity, reduce toxicity and lower application rates [Summary of Invention].
The synergistic effect of the agrochemical compositions of the present invention helps to reduce the application rate of component (1) and component (2) by maintaining the level of efficacy even if the two individual compounds alone have become less or ineffective at such low application rates. Also it allows a substantial broadening of the spectrum of phytopathogens that can be controlled by, at the same time, increasing the safety in use. In addition to the fungicidal and/or nematicidal and/or insecticidal synergistic activity, the agrochemical compositions according to the invention have further surprising properties which, in a wider sense, may also be called synergistic, such as, for example: broadening of the activity spectrum to other insects, nematodes and/or phytopathogens, for example to resistant strains of plant diseases; lower application rates of the active compounds; sufficient control of pests with the aid of the agrochemical composition according to the invention even at application rates where the individual compounds show low or virtually no activity; advantageous behavior during formulation or during use, for example during grinding, sieving, emulsifying, dissolving or dispensing; improved storage and light stability; advantageous residue formation; improved toxicological or eco-toxicological behavior; improved properties of so called plant physiological effects, for example better growth, increased yields, a better developed root system, a larger leaf area, greener leaves, stronger shoots, less seed required, better plant compatibility as well as mobilization of the defense system of the plant [Background of Invention].
Biological fungicides, for example, Bacillus subtilis var. amyloliquefaciens strain FZB24, (II-R005) Bacillus amyloliquefaciens strain MBI600, (II-R006) Bacillus amyloliquefaciens strain D747, (II-R007) Bacillus amyloliquefaciens strain D727, (II-R008) Bacillus amyloliquefaciens strain ENV503, (II-R009), Bacillus amyloliquefaciens, (II-R020) Bacillus amyloliquefaciens ssp. plantarum MBI 600 (II-27), (II-R021) Bacillus amyloliquefaciens ssp. plantarum D747, Bacillus pumilus INR-7 (II-29), (II-R026) and Bacillus pumilus GHA 180, (II-R027) [Summary of Invention]. Thus teaching claims 2-3.
In one embodiment, the weight ratio of component (1) to component (2) is between 1000:1 and 1:1000 in combinations [(I)+(II-A001)] to (I)+(II-R047)] or [(I)+(III-A1001) to (I)+(III- FF1023)] of Table 1 and Table 2, wherein component (1) is compound of formula (I) and component (2) selected from the groups (III-A1001) to (III- FF1023) as defined above [Summary of Invention]. The agrochemical composition is a mixture of one active compound of formula (I) as component (1) with at least one active component (2). In another embodiment, the agrochemical compositions is a mixture of one active compound of formula (I) as component (1) with two fungicidally active compounds (II) as a components (2) or with two insecticidally or nematicidally active compounds (III) as components (2) or with one fungicidally active compound (II) and one insecticidally or nematicidally active compound (III) as a components (2). Thus teaching claims 4-7 [Summary of Invention]. The novel agrochemical composition of the present invention may be in any customary form, such as solutions (e.g. aqueous solutions), emulsions, wettable powders, water- and oil-based suspensions, powders, dusts, pastes, soluble powders, soluble granules, granules for broadcasting, suspo-emulsion concentrates, natural or synthetic products impregnated with the agrochemical composition, fertilizers and also micro-encapsulations in polymeric substances. A surfactant is typically used when the compound of the formula (I) and/or the carrier is insoluble in water and the application is made with water. Thus teaching claims 8-10. In each case, growth regulators should have a particular desired effect on the crop plants like increased storage/shelf-life [Summary of Invention]. Thus teaching claim 11.
Claim Rejections - 35 USC § 102
5. Claims 1-11 are rejected under 35 U.S.C. 102(a)(1) and/or 102(a)(2) as being anticipated by Mahajan et al., (WO 2022113033 published 2022-06-02; published 2021-11-29).
The claims are drawn to a stabilized biofungicide composition comprising:
a biological fungicide comprising a rhizobacterium; and a pesticide, wherein the biological fungicide and the pesticide are in a weight ratio of from about 1:1 to about 1000:1.
Mahajan et al., describe novel agrochemical composition comprising (1) at least one compound of formula (I) and (2) at least one further active ingredient [abstract]. A agrochemical composition comprising a mixture of component (1) and component (2), wherein component (1) is a compound of formula (I), and at least one active compound as component (2); wherein at least one active compound is another fungicides or biological fungicides [claim 1].
Surprisingly, it has been found that the novel agrochemical compositions according to the invention not only bring about the additive enhancement of the spectrum of activity with respect to the phytopathogens to be controlled that was in principle to be expected, but also achieve a synergistic effect. The synergistic effect of the agrochemical compositions of the present invention helps to reduce the application rate of component (1) and component (2) by maintaining the level of efficacy even if the two individual compounds alone have become widely ineffective at such low application rates. Over and above, it allows a substantial broadening of the spectrum of phytopathogens that can be controlled, by, at the same time, increasing the safety in use [para 6]. Biological fungicides, for example, (R004) Bacillus subtilis var. amyloliquefaciens strain FZB24, (R005) Bacillus amyloliquefaciens strain MBI600, (R006) Bacillus amyloliquefaciens strain D747, (R007) Bacillus amyloliquefaciens strain D727, (R008) Bacillus amyloliquefaciens strain ENV503 [para 167]. Thus teaching claims 2-3. In one embodiment the weight ratio of component (1) to component (2) is between 500:1 and 1:500 in combinations [(I)+(A001] to [(I)+(R047)] of Table: 1 [para 210].
The composition, a) a composition comprising component (1) as defined herein and at least one auxiliary; and b) a composition comprising component (2) as defined herein and at least one auxiliary; and optionally c) a composition comprising at least one auxiliary and optionally a further active component (3) as defined herein. The term (a) “component (3)” means: (a) one or more compounds having acaricidal, algicidal, avicidal, bactericidal, fungicidal, herbicidal, insecticidal, molluscicidal, nematicidal, rodenticidal, or virucidal properties [para 368-369]. Thus teaching claims 4-7. The agrochemical composition typically comprises at least one active compounds combination and at least one agriculturally suitable auxiliary, e.g. carrier(s) and/or surfactant(s) [para 327]. Thus teaching claim 8. The novel agrochemical composition may be in any customary form, such as solutions (e.g. aqueous solutions), emulsions, wettable powders, water- and oil-based suspensions, powders, dusts, natural or synthetic products impregnated with the agrochemical composition, fertilizers and also microencapsulations in polymeric substances. Thus teaching claims 8-10. The composition displays increased storage and shelf-life [para 308].
Claim Rejections - 35 USC § 102
6. Claims 1-2 and 4-11 are rejected under 35 U.S.C. 102(a)(1) and/or 102(a)(2) as being anticipated by Andersch et al., (WO2009124707 published 2009-10-15; priority to 2009-04-07).
The claims are drawn to a stabilized biofungicide composition comprising:
a biological fungicide comprising a rhizobacterium; and a pesticide, wherein the biological fungicide and the pesticide are in a weight ratio of from about 1:1 to about 1000:1.
Andersch et al., Compositions are provided that improve overall plant vigor and yield by combining agriculturally effective amounts of at least one environmentally friendly biological control agent and at least one insect control agent and or fungicide [abstract]. The biological control agent can be at least one spore-forming bacterium with proven agricultural benefit and, ideally, the ability to colonize a plant's root system. The insect control agent can be at least one chemical insecticide that, whether or not having proven direct nematicidal or fungicidal activity, does possess the proven ability to increase the mass of the plant's root system to which it is applied. The compositions of the present invention have the advantage of being either formulated into a single, stable composition with an agriculturally acceptable shelf life or being combined at the time of use (e.g., tank-mix) [para 8]. The compositions of the present invention preferably include at least one biological control agent. A biological control agent as contemplated by the present invention refers to at least one spore-forming bacterium with demonstrated agricultural benefit. Preferably, the at least one spore-forming bacterium is a root-colonizing bacterium (e.g., rhizobacterium) [para 14]. Suitable bacteria exhibiting these nematicidal and fungicidal properties may include members of the Group B include Bacillus amyloliquefaciens, Bacillus licheniformis, Bacillus megaterium, Bacillus pumilus [para 14]. Typically, the ratio of the biological control agent to an insect control agent or a fungicide is in the range of 100:1 and 1:100 [para 62]. Thus teaching claims 1-2.
The at least one insect control agent can be any insecticidal chemical compound or composition having insecticidal activity such as [Acetylcholinesterase (AChE) inhibitors which are insecticides, while thiacloprid, acetamiprid, methiocarb, thiodicarb, indoxacarb, spirodiclofen, and spiromesifen are have fungicidal activity[ para 20, 23-46 and 50]. Thus teaching claims 4-7. The solid or liquid compositions further contain functional agents capable of protecting seeds from the harmful effects of selective herbicides such as activated carbon, nutrients (fertilizers), and other agents capable of improving the germination and quality of the products or a combination thereof [para 113]. Thus teaching claims 8-9. Customary formulations include wettable powders (WP), natural and synthetic materials impregnated with active compound, and very fine control release (CR) capsules in polymeric substances [para 110]. Thus teaching claim 10. The insect control agent and biologic are combined in a ready-to-use formulation that exhibits a shelf-life of at least two years [para 111]. Thus teaching claim 11.
Pertinent Art
7. The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure.
Acetylcholinesterase (AChE) inhibitors are a class of insecticides that disrupt normal neurotransmission in insects by blocking the enzyme responsible for breaking down the neurotransmitter acetylcholine (ACh) in the synaptic cleft blog.entomologist.net. This leads to prolonged stimulation of cholinergic receptors, causing continuous nerve firing, paralysis, and eventually death.
Thiacloprid, acetamiprid, methiocarb, thiodicarb, indoxacarb, spirodiclofen, and spiromesifen are the only ones with fungicidal activity. The rest are insecticides/acaricides, not fungicides. If you need a fungicide example, spirodiclofen and spiromesifen are notable for their broad-spectrum antifungal and acaricidal properties. irac-online.org/documents/moa-classification/
WO2022243810 teach a novel agrochemical composition comprising at least one compound of formula (I) as a component (1) Formula (I) and at least one fungicidally active compound (II) and/or at least one insecticidally active compound (III) as a component (2).
US Patent 9,635,861 The improved, modified population of agents is able to grow, compete with other microbial strains and fungi, and provide protection for plants from pathogens. Compositions of the invention include one or more isolated biocontrol agents that has been selected for resistance to biocides such as a herbicide, fungicide, pesticide, or other crop protection chemical; a recombinant biocontrol agent that has been transformed to contain a herbicide, fungicide, pesticide, or other crop protection chemical resistant gene; a modified population of biocontrol agents wherein the population is resistant to at least one herbicide, fungicide, pesticide, or other crop protection chemical; and compositions comprising these modified populations of biocontrol agents. The modified population may comprise microorganisms that have been selected for herbicide, fungicide, pesticide, or other crop protection chemical resistance or have been transformed with a gene that confers resistance or tolerance to such herbicide, fungicide, pesticide, or other crop protection chemical. Moreover, the application of the modified biocontrol agent and the biocide may be simultaneous or the applications may be at different times (sequential), so long as the desired effect is achieved. Modified biological agents and modified populations of such agents that are herbicide tolerant or resistant are selected or engineered. In this manner, the protection from disease-causing agents is enhanced. Any biological or biocontrol agent can be used in the methods of the invention. Particular microorganisms of interest include strains of the Bacillus amyloliquefaciens strain D747; B. amyloliquifaciens; B. subtilis amyloliquefaciens FZB24; Bacillus amyloliquifaciens; B. licheniformis DSM 17236; Bacillus pumilus strain QST 2808; and Bacillus pumilus. The modified populations of biological control agents of the invention can be formulated as a cell paste, wettable powders, dusts, granules, aqueous or oil based liquid products, and the like.
US Patent WO2016019013 describe a seed treatment composition comprising an effective amount of chlorantraniliprole in combination with an insecticide thiamethoxam or clothianidin; a fungicide selected from the group consisting of azoxystrobin, fludioxonil, mefenoxam, thiabendazole, tebuconazol, penthiopyrad, and oxathiapiprolin; and a seed treatment component selected from the group consisting of Bacillus firmus 1-1582, Bacillus subtilis, and Bacillus simplex.
CN114164144 disclose a biocontrol Bacillus amyloliquefaciens resistant to pesticide kuras, and belongs to the field of agricultural microorganisms. Bacillus amyloliquefaciens, named NQ36, is preserved in the General Microbiology Center of the China Microorganism Culture Collection Administration Committee, and the preservation number is CGMCC NO.22695.
US 10508280 describe a Pseudomonas bacterium having biocontrol activity and susceptibility to a herbicide to be resistant to the herbicide, wherein the in vitro modifying comprises culturing and selecting the Pseudomonas bacterium in the presence of the herbicide such that the improved biocontrol agent is created by the Pseudomonas bacterium undergoing genetic mutation to develop resistance to the herbicide and survives, thereby producing a culture of the improved biocontrol agent, wherein the herbicide is selected from the group consisting of glyphosate, glufosinate (glutamine synthase inhibitor), sulfonylurea, and imidazolinone herbicides (branched chain amino acid synthesis inhibitors).
Conclusion
8. No claims allowed.
9. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JA-NA A HINES whose telephone number is (571)272-0859. The examiner can normally be reached Monday thru Thursday.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor Peter Paras, can be reached on 571-272-4517. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JANA A HINES/Primary Examiner, Art Unit 1645
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