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 .
Status of the Claims
Claims 1-20 are pending (claim set as filed on 10/18/2023).
Priority
This application filed on 10/18/2023 claims benefit to foreign application no. AU2022903056 filed on 10/18/2022 which finds full support for the instant claims. Therefore, the effective filing date of the application is 10/18/2022. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Specification
The use of the terms:
Tricho-ShieldTM
Trianum Shield
Sabel-X® Hort
Richgro® Green Products
Searles® Garden Products
All Purpose Mushroom Compost
Premium Mushroom Compost
which are trade names or marks used in commerce, have been noted in this application. The terms should be accompanied by the generic terminology; furthermore, the terms should be capitalized wherever they appear or, where appropriate, includes a proper symbol indicating use in commerce such as ™, SM , or ® following the terms.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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 18-20 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.
Claims 18-20 are rejected as failing to define the invention in the manner required by 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. Claim 18 recites “wherein the mixture is present as an elongate pile.” The term “elongate pile” is not defined in the specification. It is unclear what specific structure the applicant is attempting to define since both terms (elongate and pile) respectively are relative terminology. Claims 19 and 20 are rejected as being dependent on claim 18.
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.
Claims 1-3 and 9-11 are rejected under 35 U.S.C. 102 as being unpatentable over Le (US Patent No. 10,524,487 – date of patent 6/18/2020).
Le’s general disclosure relates to a sporulated microbial mixture; and specifically, a mixture intended for livestock ingestion to germinate within their GI tract and then excrete into the soil to enhance soil fertility (see [0074 and 0095]). Note this rejection is based on the broadest reasonable interpretation of the claims which does not recite where step I and II occur.
Regarding claim 1 pertaining to the method for producing Trichoderma spp. fungi, Le teaches the combination of an almond hull carrier, a compost composition (broadest reasonable interpretation applied), and Trichoderma spp. spores into a mixture (see [0080], [0027], [0156]). The instant app defines the “compost” as a source of nutrition, and Le teaches calcium carbonate and wheat as dietary sources of nutrition in the microbial-carrier mixture (see [0027]). Le teaches that Trichoderma is a spore embodiment of the three microbial species taught (see [0156]). Le teaches that the microbial mixture is incubated within the gastrointestinal tract of the livestock after consumption, and then subsequently germinates living microbes (see [0006-0007]). Le teaches that the fungi is collected when it is preserved and screened (see [0153] and [0178]).
Regarding claims 2-3, Le teaches T. harzianum, T. viride, T. koningii, and T. hamatum (see [0156]) and Trichoderma spp. fungi as an embodiment of the microorganism selected (see [0156]). As evidenced by Steyaert, the Trichoderma fungi inherently produces both conidia and mycelia as a function of its asexual reproductive functioning (see Steyaert Introduction).
Regarding claims 9-11 pertaining to watering the mixture, Le teaches that a preservative solution is applied to the embodied microorganisms and/or spores, and specifically that an embodiment of this preservative solution contains water (see [0180]). Le teaches that the mixture is watered prior to the incubation as its administered to the animals in a liquid form (see [0044]). Le teaches that the mixture is watered after the mixture is incubated and excreted into the soil (see [0094]).
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 1-8 and 12-17 are rejected under 35 U.S.C. 103 as being unpatentable over Yamashita (WO15/126571 – publication date – 8/27/2015) in view of Wood (Wood, “Control nematodes when planting new trees”, Farm Progress, 2019 Jan 16, https://www.farmprogress.com/planting/control-nematodes-when-planting-new-trees) and in further view of Vargas-Garcia (Vargas-Garcia, “Laboratory study of inocula production for composting processes”, 2004 Jan 23, Biosource Technology, 96, pgs. 797-799), as evidenced by Steyaert (Steyaert et al., “Reproduction without sex: conidiation in the filamentous fungus Trichoderma”, 2010 Oct 01, Microbiology, 156(10), pg. 2887) and as evidenced by Lekshmi (Lekshmi et al., “A critical review of soil moisture measurement”, 2014 Apr 11, Elsevier, 54, pg. 92).
Yamashita’s general disclosure relates to a microbial fertilizer composition; and specifically, to a mixture to remediate soil (see abstract).
Regarding claim 1, Yamashita teaches the mixture of the shredded almond hull, compost composition, and Trichoderma spp. (see pg. 50, claim 1 and pg. 52, claim 17). Yamashita teaches incubating the mixture (see pg. 48, lines 28-29). Yamashita does not teach spores and collecting Trichoderma spp. fungi.
Wood’s general disclosure relates to the use of fungal spore composition to treat plant pathogens in the soil (see ¶ 2).
Regarding claim 1, Wood teaches spores (see ¶ 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add fungal spores as taught by Wood to the microbial mixture taught in Yamashita. The ordinary artisan would have been motivated to do so because Wood teaches a benefit for the use of spores in a soil fertilizer composition as they treat pathogenic species harmful to plants (see Wood ¶ 2). Therefore, such a use of a fertilizer containing fungal spores would be considered an advantage in Yamashita’s disclosure which also recognizes a need for a fertilizer composition to reduce the number of pathogens found in soil (see Yamashita pg. 47, lines 10-18).
Vargas-Garcia’s general disclosure relates to optimizing microbial compost using agricultural waste substrates (see abstract).
Regarding claim 1, Vargas-Garcia teaches collecting the Trichoderma spp. fungi (see pg. 799, ¶ 3) by counting the number of fungi grown.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Yamashita and Vargas-Garcia to collect the Trichoderma fungi. The ordinary artisan would have been motivated to do so because Vargas-Garcia teaches collecting the fungi to determine which grew under most favorable conditions to further optimize a recyclable compost (see Vargas-Garcia pg. 798, ¶ 1). Therefore, such a use of collecting the spores would have been an advantage in Yamashita which recognizes a need for collecting the fungi for recycling of a fertilizer into the soil (see Yamashita pg. 36, lines 19-20).
Regarding claims 2-3, Yamashita teaches the Trichoderma spp. fungi is T. harzianum, T. viride, T. koningii, or T. hamatum (see pg. 52, claim 17). As evidenced by Steyaert, the Trichoderma fungi inherently produces both conidia and mycelia as a function of its asexual reproduction (see Steyaert Introduction).
Regarding claim 4-5, Yamashita teaches shredded almond hull, compost nutrition, and Trichoderma spp. in a ratio of “about” [0.5][0.05][0.000115] (see pg. 51, claim 7; pg. 53, claim 30; pg. 52, claim 22). . Yamashita discloses a ratio of almond hull to the compost nutrition of “about” [0.5]:[0.05] where the almond hull has a range that is ten times the amount of the compost nutrition range; for example, almond hull is 50% by weight and the compost nutrition is 5% by weight of the composition (see pg. 51, claim 7 and pg. 53, claim 30). Yamashita discloses a ratio of compost nutrition to microbial species of “about” [0.05]:[0.000115] where the Trichoderma spp. microbial mixture at 1 x 105 cfu/ml is 0.00001% by weight of the composition, which is “about” 434 times smaller than the compost nutrition component as given in the ratio (see pg. 52, claim 22). Though Yamashita teaches shredded almond hull (see pg. see pg. 50, claim 1), it does not teach the size of the shredded almond hull (claim 5).
Regarding claim 5, Vargas-Garcia teaches the shredded almond hull is between “about” 1-10 mm (see pg. 798, ¶5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Yamashita and Vargas-Garcia and teach the size of the shredded almond hull. Therefore, one would have been motivated to use a similar size since Vargas-Garcia there is a reasonable expectation that the modified teachings of Yamashita and Vargas-Garcia would have met the claimed functional limitation because Yamashita discloses the almond hull as a substrate, but Vargas-Garcia teaches a size of 1 mm is an effective size of the substrate to be used to promote fungal growth (see pg. 799, ¶ 3).
Regarding claims 6-7, Yamashita teaches a compost nutrition composition of straw, green and dry manure, and calcium sulfate, also known as gypsum (see pg. 2, lines 1-5 and pg. 26, line 23). Yamashita teaches that nitrogen is found within the compost nutrition (see pg. 14, line 7) at 5% w/w (see pg. 17, line 29-30).
Regarding claim 8, Yamashita teaches the make-up of the soil is checked daily (see pg. 37, lines 24-27; pg. 38, lines 26-28) including the salt composition of the mixture-containing soil. As evidenced by Lekshmi, it is inherent that assessing the salt composition would also give indication of the moisture content (see Lekshmi, Introduction) therefore reading on claim 8.
Regarding claims 12-15, Yamashita teaches that the mixture has a temperature of “about” 25-27 [Symbol font/0xB0]C (see pg. 44, lines 11-14). Yamashita teaches that the period of time is between about 20-35 days (see pg. 49, lines 14-17). Yamashita teaches an acidic component in the mixture (see pg. 41, lines 13-17), but it does not specify that the pH has a range of “about” 6.6-6.8. Yamashita teaches that the mixture contains moisture (see pg. 45, lines 16-20), but does not specify that the moisture content is “about” 40-80%.
Regarding claims 12 and 14, Vargas-Garcia teaches a pH range of “about” 6.6-6.8 and a moisture content of “about” 40-80% (see pg. 798, ¶ 5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the values of the pH and the moisture content as disclosed by Vargas-Garcia for use in process of inducing fungal growth in the mixture composition disclosed by Yamashita. The ordinary artisan would have been motivated to do so because the pH and moisture content would have shown to be effective at promoting the growth of Trichoderma fungi as taught by Vargas-Garcia when applied to the mixture composition as taught by Yamashita.
Accordingly, both the claimed invention and the prior art references, as a whole, would have been prima facie obvious to one of ordinary skill in the art at the time of filing. The ordinary artisan would have had a reasonable expectation of success in modifying the prior art references to arrive at the claimed invention because both Yamashita and Vargas-Garcia are directed to a microbial mixture composition containing Trichoderma spp. and a cellulose almond-based substrate with certain conditions such as pH, temperature, moisture, size and incubation period effective for inducing growth of the fungus.
Regarding claims 16-17, Yamashita teaches that the three, layered structure and agitation to form the mixture (see pg. 48, lines 14-24). Yamashita discloses the three components in pellet form contained inside a column (pg. 48, lines 14-20). Yamashita discloses one of the pellets contains rice hulls + hardwood + microbes + activator (pg. 48, line 20). Almond hulls can be substituted for rice hulls based off Yamashita’s embodiments (pg. 2, lines 2-4) and form “a bottom layer” under the sand layer at the top of the column (pg. 48, line 20-23). A cellulose source of nutrients made of straw, manure, and calcium sulfate can be substituted from hardwood based off of Yamashita’s embodiments (see pg. 2, lines 1-5 and pg. 26, line 23) and form “a middle layer” between the rice hull layer and the microbe layer (pg. 48, line 20). The microbe forms “a top layer” over the activator layer (pg. 48, line 20). Applicant defines “agitation” in the specification to mean any suitable means of mixing the three components.
Claims 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Yamashita in view of Wood and Vargas-Garcia and in further view of An (An et al., “Effect of Ridge Height, Row Grade, and Field Slope on Nutrient Losses in Runoff in Contour Ridge Systems under Seepage with Rainfall Condition”, 2021 Feb 19, International Journal of Environmental Research and Public Health, 18, pgs. 1-3) and as evidenced by Steyaert and as evidenced by Lekshmi.
The teachings of Yamashita, Wood, and Vargas-Garcia has been set forth above, and herein referred to as modified-Yamashita-Wood-Vargas-Garcia.
An’s general disclosure relates to contour-ridge soil systems (see abstract).
Regarding claims 18-20, modified-Yamashita-Wood-Vargas-Garcia teaches that the mixture was incorporated into the soil (see Yamashita summary) and that the period of time after laying the mixture was “about” 5-10 days (see Yamashita pg. 48, lines 22-26) during of a period of 96 hours or 4 days. However, modified-Yamashita-Wood-Vargas-Garcia does not specifically teach that the soil was arranged in elongate piles with a depression over the length or that the depression formed “about” 5-10 days after period of time before the layered mixture is formed.
Regarding claims 18-20, An teaches an elongate pile with depressions over the length of the piles (see pg. 2, ¶ 3).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the elongate piles with depressions over the length as taught by An to the mixture within the soil as taught by modified-Yamashita-Wood-Vargas-Garcia. The ordinary artisan would have been motivated to do so because An teaches that the depressed elongate piles are a common agricultural practice for reducing loss of nutrients within the soil (see pg. 2, ¶ 2-3). Therefore, such use of a depressed elongate pile would be considered an advantage in modified-Yamashita-Wood-Vargas-Garcia which also recognizes the need for correct deficiencies in the nutrient compositions of soil (see Yamashita pg. 1, introduction).
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 1, 5, 14, and 16 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-3, 8, and 11 of Application No. 18/024,725 in view of Yamashita, Wood and Le – references cited from above and reprised herein.
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Instant claims are directed towards:
Mixing shredded almond hull, nitrogen-containing component, and Trichoderma spp. spores and collecting the Trichoderma spp. fungi (claim 1)
Size of the almond hull being about 1-10 mm or about 2-5 mm (claim 5)
Mixture having a moisture content of about 40-80% (w/w) or about 55-65% (w/w) (claim 14)
Separating of the components and agitating the mixture (claim 16)
Co-pending Application No. 18/024,725 claims are directed towards:
Mixing shredded almond hull and a nitrogen-containing component (claims 1-3)
Size of the almond hull being about 1-10 mm or about 2-5 mm (claim 11)
Mixture having a moisture content of about 40-80% (w/w) or about 55-65% (w/w) (claim 8)
Separating of the components and agitating the mixture (claim 1)
Although the preamble are different both sets of claims are directed to producing compost mixture. Co-pending Application No. 18/024,725 does not recite:
Adding Trichoderma spp. spores to mixture and collecting the Trichoderma spp. fungi
Yamashita teaches a fertilizer mixture similar to the one disclosed in ‘725(see Yamashita pg. 50, claim 1 and pg. 52, claim 17). Wood teaches the fungal spores (see Wood ¶ 2). Le teaches the collection of the Trichoderma spp. fungi (see Le [0153] and [0178]).
It would have been obvious to one of ordinary skill in the art to combine the fertilizer mixture as taught in Yamashita, the spores as taught in Wood, and the collection of the Trichoderma spp. fungi as taught in Le with the fertilizer mixture as taught in ‘725. The ordinary artisan would have been motivated to do so because Yamashita teaches that the fertilizer composition provides nutrients for soil remediation (see Yamashita pg. 7, lines 20-22), Wood teaches that the addition of Trichoderma spp. spores to fertilizer are beneficial for soil health by controlling plant pathogens (see Wood ¶ 2), and Le teaches that the collection of Trichoderma spp. fungi is beneficial to screen for a more successful subsequent microbial generation to add back to the soil (see Le [0157]). Therefore, such use of these methods would be considered an advantage in ‘725 which also recognizes the need for an enriched soil as an important part of agriculture (see ‘725 [0003]).
Conclusion
No claims are allowed.
Correspondence Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Emmalee R. Williams whose telephone number is (571)272-5472. The examiner can normally be reached Monday - Friday 7:30 am - 5:00 pm.
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/E.R.W./ Examiner, Art Unit 1653
/SHARMILA G LANDAU/ Supervisory Patent Examiner, Art Unit 1653