DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Status of Application, Amendments, And/Or Claims
The Applicants amendments/remarks received 11/11/2025 are acknowledged. Claims 8-9 and 13 are amended; claim 1 is canceled; no claims are withdrawn; claims 2-20 are pending and have been examined on the merits.
NOTE: This Office action is non-final because it comprises rejections not necessitated by amendment.
Information Disclosure Statement
The information disclosure statement submitted on 11/11/2025 has been considered by the examiner.
Drawings
The objection to the drawings, as set forth at pp. 2-3 of the previous Office Action, is withdrawn; the drawings received 11/11/2025 are accepted.
Claim Objections
The objection to claim 13, as set forth at p. 3 of the previous Office Action, is withdrawn in view of the amendment of the claim.
Double Patenting
The rejection of claims 2-20 on the ground of nonstatutory double patenting over claims 1-18 of U.S. Patent No. 11692163 as set forth at pp. 3-7 of the previous Office Action, is withdrawn in view of the filing and approval of a terminal disclaimer over U.S. Patent No. 11692163 on 11/11/2025.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) 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.
This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 2-8, 10-16 and 18-20 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Johnson et al., US 2009/0107913 (cite A, attached PTO-892; herein “Johnson”).
Johnson teaches methods of anaerobic digestion of waste materials, i.e., producing microbial digestion products of an organic material with a microbial consortium, to produce a liquid fertilizer (Abst.; Figs. 1A-1D, 9; [0002-4], [0011], [0013]), wherein the waste material can be cow manure [0031-32]. Johnson teaches monitoring and reducing the amount of chemical oxygen demand (COD) in the process [0067-68]. Hence, a person of ordinary skill in the art at the time of filing would have found it obvious that the COD level in the liquid fertilizer is a result effective variable which a person of ordinary skill in the art would expect to have an obvious effect on the effectiveness of the liquid fertilizer. Therefore, a person of ordinary skill in the art would find it obvious to lower the COD level of the liquid fertilizer to produce the most effective liquid fertilizer and would arrive at a COD level of 90 - 120 mg/L. See also MPEP 2144.05 II.A. “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%)". NOTE: the COD level of the liquid fertilizer can be decreased by adding water to the composition to form a composition with lower COD level.
A person of ordinary skill in the art at the time of filing would have found it obvious to contact plants or plant growth medium with the liquid fertilizer to increase the biomass of the plant and to promote root extension of the plant because that is the purpose of fertilizers; therefore, claims 2-7 and 15-16 are prima facie obvious.
The anaerobic digestion process of Johnson comprising cow manure as the input would have all of the microorganisms of the cow manure in the microbial consortium performing the digestion; hence, a person of ordinary skill in the art at the time of filing would have found it obvious that the microbial consortium in the method of Johnson would comprise at least 20 different microbial species; therefore, claims 10-11 are prima facie obvious.
Johnson teaches that their method can comprise contacting the effluent with Nitrosomonas bacteria ([0093], claims 25-26); hence, a person of ordinary skill in the art at the time of filing would have found it obvious that the microbial consortium in the method of Johnson comprises Nitrosomonas bacteria; therefore, claims 8 and 18 are prima facie obvious.
Johnson teaches that the pH of the process liquid can be adjusted at all points along the process including the feed stream leaving the reactor ([0035], [0039], [0056-57], [0073]). Additionally, the pH of the liquid fertilizer would have an effect on the effectiveness to promote growth in plants; hence, a person of ordinary skill in the art at the time of filing would have found it obvious to adjust the pH of the liquid fertilizer to produce the most effective liquid fertilizer and would arrive at a pH of 7.5 - 8; therefore, claim 19 is prima facie obvious. See also MPEP 2144.05 II.A. “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%)".
A person of ordinary skill in the art at the time of filing would have found it obvious that the concentration of ions in the liquid fertilizer, i.e., conductivity, would have an effect on the effectiveness to promote growth in plants; hence, a person of ordinary skill in the art at the time of filing would have found it obvious to adjust the conductivity of the liquid fertilizer, such as by adding water to the composition, to produce the most effective liquid fertilizer and would arrive at a conductivity of 900 - 1200 µS/cm; therefore, claim 13 is prima facie obvious. See also MPEP 2144.05 II.A. “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%)".
Johnson does not state the concentration of bacteria in the liquid fertilizer; however, the concentration of bacteria (and concomitant concentration of DNA) in the liquid fertilizer would have an effect on the effectiveness of the liquid fertilizer to promote growth in plants; hence, a person of ordinary skill in the art at the time of filing would have found it obvious to adjust the concentration of bacteria, such as by concentrating with a filter and keeping the retentate, to produce the most effective liquid fertilizer and would arrive at a concentration of bacteria of > 107 cells/ml and 10-60 ng/ml DNA; therefore, claims 14 and 20 are prima facie obvious. See also MPEP 2144.05 II.A. “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%)".
a person of ordinary skill in the art at the time of filing would have found it obvious that if a sterile liquid fertilizer is desired, the composition can be filter sterilized; therefore, claim 12 is prima facie obvious.
Allowable Subject Matter
Claims 9 and 17 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Claims 2-8, 10-16 and 18-20 are rejected; claims 9 and 17 are objected to as set forth above.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Trent R Clarke whose telephone number is (571)272-2904. The examiner can normally be reached M-F 10-7 MST.
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/TRENT R CLARKE/ Examiner, Art Unit 1651
/DAVID W BERKE-SCHLESSEL/ Primary Examiner, Art Unit 1651