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/Restrictions
Applicant’s election of Group I and the species Saccharomyces in the reply filed on 10/29/2025 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Claims 18-22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 10/29/2025.
Claims 1-13 are being examined on the merits.
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.
Regarding claims 3, 4, 5, 9 and 13 the phrase "preferably" and “more preferably” renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention or merely suggestive in nature. See MPEP § 2173.05(d).
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.
Claims 1-2, 5-6, 9-10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tim Jenkins (From IDS, WO2017142425A1).
Jenkins discloses “a method for enhancing plant tolerance to stress comprising a step of:
applying, to at least one plant or part thereof, a composition comprising: a mixture of lysed cellular components from at least one strain of bacteria which has been grown in a growth media to at least about 106 cfu/ml and/or at least one strain of yeast which have been grown in a growth media to at least about 105 cfu/ml. The method as claimed in claim 1 wherein the stress is abiotic stress.” (see claims 1-2).
“The microorganisms may produce a range of growth promoting compounds including cytokinins, betaines, oligopeptides, and related compounds. Lysing as noted above breaks cell walls and releases cell wall and internal cell compounds” (see page 9).
Jenkins discloses the genera of yeast as Saccharomyces (see claim 11).
Jenkins discloses that “specifically, plant tolerance to abiotic stress, temperature extremes and transplantation are enhanced by application of the composition” (see abstract).
Jenkins discloses the abiotic stress is water stress (see claim 3).
Jenkins discloses “the plant bio-stimulant composition may be applied in combination with urea and/or other agricultural compounds” (see Summary of invention, 1st para.).
Claims 1-3 and 5-6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Manuel José Gandarillas Infante (WO2012045189A2).
Regarding claims 1-3 and 5-6, Infante discloses a composition of biostimulants originating from two biological sources: one constituted by chitosan, which provides the carbon or energy for plant development; and the other constituted by a partial hydrolysate of Saccharomyces cerevisiae from industrial beer fermentation, which is constituted by proteins, oligoproteins, nucleic acids, amino acids, vitamins and cofactors, for proper development of the plant. The aqueous mixture of both types of nutrients contains 5% chitosan and 5% biological nutrients. The use of this composition leads to an increase in the size of plants, in the number of flowers and in the number of fruits in Capsicum chinense L.-productive agricultural crops (see abstract). Infante discloses contacting the roots of the plants with the composition (see page 2, 2nd para. from bottom and see claims 7-8). Here the additional agricultural compound described in instant claim 6 can be chitosan.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Manuel José Gandarillas Infante (WO2012045189A2) and Alexandros Yiannikouris et. al. (Alkali Extraction of Beta-D-Glucans from Saccharomyces cerevisiae Cell Wall and Study of Their Adsorptive Properties toward Zearalenone, J. Agric. Food Chem., 2004, 52, 3666-3673).
Regarding claims 1-3 and 5-6, Infante discloses a composition of biostimulants originating from two biological sources: one constituted by chitosan, which provides the carbon or energy for plant development; and the other constituted by a partial hydrolysate of Saccharomyces cerevisiae from industrial beer fermentation, which is constituted by proteins, oligoproteins, nucleic acids, amino acids, vitamins and cofactors, for proper development of the plant. The aqueous mixture of both types of nutrients contains 5% chitosan and 5% biological nutrients. The use of this composition leads to an increase in the size of plants, in the number of flowers and in the number of fruits in Capsicum chinense L.-productive agricultural crops (see abstract). Infante discloses contacting the roots of the plants with the composition (see page 2, 2nd para. from bottom and see claims 7-8). Here the additional agricultural compound described in instant claim 6 can be chitosan.
Infante does not specifically teach wherein the method uses an alkaline hydrolysate.
Yiannikouris teaches of alkali extraction of Beta-D-Glucans from Saccharomyces cerevisiae cell walls (see abstract) and teaches “Yeast cell walls were hydrolyzed with 2NH2SO4 at 100 °C for 4 h according to the method of Dallies et al. (22). The extraction method was adapted from those of Fleet (23) and Catley (24), who both used NaOH for 6h at 75 °C for extraction under nitrogen conditions. In our study, cell walls were fractionated by alkali extraction with 1 M NaOH and 0.5% of NaBH4 for 24h at 37°C under agitation. The process became optimal when the [cell wall/NaOH] (w/v) ratio approached 2. The suspension was centrifuged (10000g for 5 min), and the supernatant and pellet fractions were separated” (see material and methods, page 3667, right column).
Therefore, it would have been obvious to persons having skill in the art before the effective filing date to use an alkaline hydrolysate method as instantly claimed because this is one known way to hydrolyze Saccharomyces to obtain the active components described in Infante’s invention for a method in increasing the biomass of plants. Infante already teaches of hydrolysates of Saccharomyces for increasing plant biomass and so one would only need to search for methods in which to hydrolyze the yeast to obtain those active components. Yiannikouris teaches of alkaline extraction and so optimizing the pH to be above 8 is obvious as this is would indeed be an alkaline environment. Optimizing the temperatures to be above 45 degrees Celsius is also obvious as Yiannikouris teaches temperatures above this amount.
Claim 7-8 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over over Manuel José Gandarillas Infante (WO2012045189A2) as applied to claims 1-6 above, and further in view of Pat J. Unkefer et. al. (WO2001054500A1).
Infante teaches the claimed method steps however is silent on simultaneously contacting the plant (parts) with proline.
Unkefer teaches a composition comprising proline or a mixture thereof in an amount effective to increase the rate of growth of a plant over that for the wild type plant (see claim 1).
Unkefer teaches “increasing the concentration of prolines, such as 2-hydroxy-5-oxoproline, in the foliar portions of plants has been shown to cause an increase in carbon dioxide fixation, growth rate, dry weight, nutritional value (amino acids), nodulation and nitrogen fixation, photosynthetically derived chemical energy, and resistance to insect pests over the same properties for wild type plants. This can be accomplished in four ways: 1) the application of a solution of the proline directly to the foliar portions of the plant by spraying these portions; 2) applying a solution of the proline to the plant roots;” (see abstract).
Therefore, it would have been obvious to persons having skill in the art before the effective filing date to simultaneously apply proline to the plant (parts) as described by Unkefer because this will help to increase plant growth and help with resistance to insects. It would have also been obvious to optimize the proline and hydrolysate to be within the same instantly claimed amounts, percentages, ranges because this is well within the purview of any skilled artisan especially given the prior art.
Claims 11 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Jenkins (From IDS, WO2017142425A1).
Jenkins discloses “a method for enhancing plant tolerance to stress comprising a step of:
applying, to at least one plant or part thereof, a composition comprising: a mixture of lysed cellular components from at least one strain of bacteria which has been grown in a growth media to at least about 106 cfu/ml and/or at least one strain of yeast which have been grown in a growth media to at least about 105 cfu/ml. The method as claimed in claim 1 wherein the stress is abiotic stress.” (see claims 1-2).
“The microorganisms may produce a range of growth promoting compounds including cytokinins, betaines, oligopeptides, and related compounds. Lysing as noted above breaks cell walls and releases cell wall and internal cell compounds” (see page 9).
Jenkins discloses the genera of yeast as Saccharomyces (see claim 11).
Jenkins discloses that “specifically, plant tolerance to abiotic stress, temperature extremes and transplantation are enhanced by application of the composition” (see abstract).
Jenkins discloses the abiotic stress is water stress (see claim 3).
Jenkins discloses “the plant bio-stimulant composition may be applied in combination with urea and/or other agricultural compounds” (see Summary of invention, 1st para.).
Therefore it would have been obvious to persons having skill in the art before the effective filing date to use the method on vines (parts) and for abiotic stress such as hail because Jenkins teaches that the methos is effective for plants and vines are plants thus persons reading Jenkins’ teachings would have surely applied the method to a vine or vine parts. Additionally Jenkins teaches wherein abiotic stresses can be both temperature and water and thus one would also extrapolate that hail is an abiotic stress due to both temperature differences having an effect on water. When temperatures become cold enough water is turned into hail and thus both of these abiotic stresses (temperature and water) can be taken into consideration and interpreted as being hail as one of the abiotic stressors.
Given the prior art the instant invention would have been obvious and there would have been a reasonable expectation of success in creating the invention.
Conclusion
Currently no claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACOB ANDREW BOECKELMAN whose telephone number is (571)272-0043. The examiner can normally be reached Monday-Friday 8am-5pm.
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JACOB A BOECKELMAN Examiner, Art Unit 1655
/TERRY A MCKELVEY/ Supervisory Patent Examiner, Art Unit 1655