DETAILED ACTION
The Amendment filed July 6, 2026 has been entered.
Claims 1-227, 231, 238, 240-241, 244-245, 248-250 and 255 are cancelled.
Claim 257 is new.
Claim 228 is currently amended.
Claim 232 is withdrawn - currently amended.
Claims 229-230, 233-237, 239, 242-243, 246-247, 251-254 and 256 are withdrawn – previously presented.
Claims 228-230, 232-237, 239, 242-243, 246-247, 251-254 and 256-257 are pending.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
All previous objections and rejections not set forth below have been withdrawn.
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/Restrictions
Newly submitted claim 257 is directed to an invention that is independent or distinct from the elected invention for the following reasons: Applicant elected Group III, claim 231, drawn to the composition of claim 228, wherein the plant growth medium comprises soil, water, an aqueous solution, sand, gravel, a polysaccharide, mulch, compost, peat moss, straw, logs, clay, soybean meal, yeast extract, or a combination thereof, without traverse in the reply filed on December 1, 2025. New claim 257 is drawn to the composition of claim 228, wherein the composition further comprises dolomite or styrene. Claim 228 links new claim 257 to inventions I-XVI. New claim 257 is independent or distinct from the subject matter of elected Group III because the composition of claim 257 requires additional structural components (dolomite or styrene) that require additional search and consideration, and that may raise different non-prior art issues under 35 U.S.C. 101 and/or 35 U.S.C. 112, first paragraph. Accordingly, new claim 257 is withdrawn from consideration.
Withdrawn Claim Rejections
The rejection of claim 231 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or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention is withdrawn in light of the cancellation of claim 231.
The rejection of claim 231 under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Sun et al. U.S. Patent Application Publication No. 2015/0368627, published Dec. 24, 2015 is withdrawn in light of the cancellation of claim 231.
The rejection of claim 231 under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Ortenzi et al. U.S. Patent Application Publication No. 2008/0299185, published Dec. 4, 2008 is withdrawn in light of the cancellation of claim 231.
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.
Claim(s) 228 is/are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Sun et al. U.S. Patent Application Publication No. 2015/0368627, published Dec. 24, 2015. This rejection is modified to address the amendment of claim 228.
Claim 228 as currently amended is drawn to a composition comprising a free phospholipase; and a plant growth medium, wherein the plant growth medium is selected from the group consisting of peat moss, coir, coconut husk, rice husk, vermiculite, clay, bone meal, potting mix, soil, fertilizer, compost, vermicast, perlite, straw, sand, gravel, mulch, logs, soybean meal, yeast extract, loam, and a combination of any thereof.
Sun et al. teach a composition comprising a free phospholipase and a vermiculite carrier (paragraphs [0162]-[0163]). Accordingly, Sun et al. anticipate claim 228.
Claim(s) 228 is/are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Ortenzi et al. U.S. Patent Application Publication No. 2008/0299185, published Dec. 4, 2008. This rejection is modified to address the amendment of claim 228.
Claim 228 as currently amended is drawn to a composition comprising a free phospholipase; and a plant growth medium, wherein the plant growth medium is selected from the group consisting of peat moss, coir, coconut husk, rice husk, vermiculite, clay, bone meal, potting mix, soil, fertilizer, compost, vermicast, perlite, straw, sand, gravel, mulch, logs, soybean meal, yeast extract, loam, and a combination of any thereof.
Ortenzi et al. teach a composition comprising a free phospholipase and clay (paragraph [0019], [0029], [0077]; claims 1, 3, 47, 93, 95, 32, 35 58, 101, 103). Accordingly, Ortenzi et al. anticipate claim 228.
Response to Arguments
Applicant's arguments filed July 6, 2026 have been fully considered but they are not persuasive.
Applicant maintains that Sun et al. and Ortenzi et al. do not anticipate the claimed invention because Sun et al. and Ortenzi et al. each fail to teach each and every element of the claimed invention.
Applicant's arguments are not persuasive.
Applicant's arguments are not persuasive because Sun et al. teach a composition comprising a free phospholipase and a vermiculite carrier, and because Ortenzi et al. teach a composition comprising a free phospholipase and clay, as set forth above in the modified rejections under 35 U.S.C. 102(a)(1) and (a)(2). Accordingly, the rejections are maintained.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 228 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 228 and 231 of copending Application No. 19/462,015 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other.
Claim 228 as currently amended is drawn to a composition comprising a free phospholipase; and a plant growth medium, wherein the plant growth medium is selected from the group consisting of peat moss, coir, coconut husk, rice husk, vermiculite, clay, bone meal, potting mix, soil, fertilizer, compost, vermicast, perlite, straw, sand, gravel, mulch, logs, soybean meal, yeast extract, loam, and a combination of any thereof.
Claim 228 of the reference application is drawn to a composition comprising a free enzyme or expansin protein, wherein the enzyme is selected from a phospholipase, a lipase, a xylosidase, a lactonase, a mannanase, a pectinase, a chitosanase, a protease, a glucanase, an ACC deaminase, and combinations of any thereof, wherein: when the enzyme comprises a glucanase, the glucanase does not comprise a beta-1,3-glucanase, a xyloglucanase, or a lichenase; and when the enzyme comprises a mannanase: (i) the composition further comprises a phospholipase or an acid phosphatase; (ii) the composition is a granular composition; or (iii) the composition further comprises a phospholipase or an acid phosphatase and is a granular composition; and a polymer, a surfactant, an agrochemical, a plant growth medium, or talc.
Claim 231 of the reference application is drawn to the composition of claim 228, wherein the plant growth medium comprises soil, water, an aqueous solution, sand, gravel, a polysaccharide, mulch, compost, peat moss, straw, logs, clay, soybean meal, yeast extract, or a combination thereof.
The claims at issue are not patentably distinct from each other because the compositions claimed in claim 228 of the instant application are a narrow subset of species within the broad genus of compositions claimed in claims 228 and 231 of the reference application
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 228 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 228 and 231 of copending Application No. 19/462,018 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other.
Claim 228 as currently amended is drawn to a composition comprising a free phospholipase; and a plant growth medium, wherein the plant growth medium is selected from the group consisting of peat moss, coir, coconut husk, rice husk, vermiculite, clay, bone meal, potting mix, soil, fertilizer, compost, vermicast, perlite, straw, sand, gravel, mulch, logs, soybean meal, yeast extract, loam, and a combination of any thereof.
Claim 228 of the reference application is drawn to a composition comprising a free enzyme or expansin protein, wherein the enzyme is selected from a phospholipase, a lipase, a xylosidase, a lactonase, a mannanase, a pectinase, a chitosanase, a protease, a glucanase, an ACC deaminase, and combinations of any thereof, wherein: when the enzyme comprises a glucanase, the glucanase does not comprise a beta-1,3-glucanase, a xyloglucanase, or a lichenase; and when the enzyme comprises a mannanase: (i) the composition further comprises a phospholipase or an acid phosphatase; (ii) the composition is a granular composition; or (iii) the composition further comprises a phospholipase or an acid phosphatase and is a granular composition; and a polymer, a surfactant, an agrochemical, a plant growth medium, or talc.
Claim 231 of the reference application is drawn to the composition of claim 228, wherein the plant growth medium comprises soil, water, an aqueous solution, sand, gravel, a polysaccharide, mulch, compost, peat moss, straw, logs, clay, soybean meal, yeast extract, or a combination thereof.
The claims at issue are not patentably distinct from each other because the compositions claimed in claim 228 of the instant application are a narrow subset of species within the broad genus of compositions claimed in claims 228 and 231 of the reference application
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
The Examiner acknowledges Applicant’s assertion that if needed, a terminal disclaimer over the cited cases will be filed upon the indication of otherwise allowable subject matter. The rejection is maintained because no allowable subject matter is currently indicated.
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.
Remarks
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CYNTHIA E COLLINS whose telephone number is (571)272-0794. The examiner can normally be reached M-F 8:30 am - 5:00 pm.
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, Bratislav Stankovic can be reached at 571-270-0305. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CYNTHIA E COLLINS/Primary Examiner, Art Unit 1662
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