DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Election/Restriction
Applicant’s election without traverse of Group I, claims 1-9, 15, and 20, and the species Additive Blend 7, Pseudomonas fluorescens, and mineral oil in the reply filed on 23 June 2026, is acknowledged.
Status of Claims
Claims 1-20 are pending in the instant Office Action.
Claims 10-14 and 16-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 23 June 2026.
Claims 3, 5, and 20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 23 June 2026.
Claims 1-2, 4, 6-9, and 15 are under consideration in the instant Office Action, to the extent of the following elected species:
the specific additive blend comprising 1-97% v/v EO/PO/EO block copolymer with hydrophilic-lipophilic balance (HLB) 12, 1-97% v/v PEG 400 monolaurate, PEG 400 monooleate, and/or PEG 400 dioleate, and 1-97% v/v soybean oil POE 10, castor oil POE 16, and/or castor oil POE 40, wherein all components sum to 100% v/v;
the specific bacterial spores P. fluorescens; and
the specific further component mineral oil.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified of parent European Application No. EP 21171741.8, filed on 3 May 2021, has been received from the International Bureau.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 29 September 2023, was filed in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claims 1, 4, and 7-8 are objected to because of the following informalities:
Claim 1 recites “having a HLB (hydrophilic-lipophilic-balance)” in line 3. The first appearance of an abbreviation should be preceded by the abbreviated phrase written in full and the phrase and abbreviation should swap places.
Claim 1 also recites “with a molecular weight (AMW)” in bullet point iii. The phrase should be amended to recite “an average molecular weight (AMW)” as in line 4.
Claims 4 and 8 should recite the conjunction “and” between the final two categories f. and g.
Claim 7 recites “the two groups” in line 12. While it is apparent that the two groups are 1. ethoxylated triglycerides and 2. additives A1) to D1), clarity would be improved if the two groups were named, mirroring the final 5 lines of the claim.
Claim 7 also recites “A1), B1), C1), or D1)” in lines 13-14, “A2), B2), or C2)” in line 38, and “A2), B3), or C2)” in line 40. The phrases should read “A1), B1), C1), and D1)”, “A2), B2), and C2)”, and “A2), B2), and C2)”, respectively (bold added for emphasis).
Appropriate correction is required.
Claim Rejections - 35 USC § 103
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 1-2, 4, and 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. (WIPO International Patent Publication No. WO 2009/126473 A1, published on 15 October 2009, provided by Applicant in the IDS filed on 29 September 2023, hereafter referred to as Chen) in view of Jain et al. (Int. J. Agronomy 2016, 2016 (1), 1., hereafter referred to as Jain), Zarrintaj et al. (Acta Biomater. 2020, 110, 37., hereafter referred to as Zarrintaj), and Fabri et al. (U.S. Patent Application Publication No. US 2008/0146444 A1, published on 19 June 2008, hereafter referred to as Fabri).
Chen teaches stable aqueous spore-containing formulations for seed coating and foliar spraying (Abstract). The compositions comprise at least one spore, at least one water-miscible solvent or an aqueous emulsion of a hydrophobic agent, and water (claim 1 and para. [0007]). In some embodiments, the spores are fungal and the fungal spores may be of the Pseudomonas family (Pseudomonas spp.) (para. [0030-0031]).
Chen further teaches that their composition may comprise one or more surfactants (para. [0041]). Suitable surfactants are taught to include triglyceride ethoxylates with 5-20 EO units, with the triglycerides being castor or soybean oil, ethylene oxide/propylene oxide copolymers with an HLB from 1-18, and fatty acid polyethylene glycols (para. [0042]). The surfactants are taught to be present from 0.2-50% w/w (claim 12). The compositions of Chen are also taught to optionally comprise adjuvants, which may be further surfactants (para. [0048-0049]) or mineral oil (para. [0065]), and are present in an amount from 5-30% w/w (para. [0050]). The formulation is taught in claim 1 to comprise a “balance water”, which is interpreted as equivalent to water up to 100% v/v. Chen teaches that their formulation may be applied via spraying device and sprayed onto soil or parts of the plant, which is interpreted as equivalent to a “spraying liquid suitable for spraying plants” as recited in instant claim 1 (para. [0077-0078]).
In Example 2, Chen teaches a composition comprising Bacillus firmus at a concentration of 1x1011 CFU/g. Instant claim 1 recites the quantity of bacterial spores to have units of v/v, which is not commonly used in the art, and the specification does not provide a method of determining the volume of bacterial spores. However, instant spec. para. [0058] states that the amount of spores are “usually determined in colony forming units (CFU) per gram of harvested material. Typically, the harvested material used for formulation comprises between 1x108 CFU/g to 1x1011 CFU/g”. Therefore, Example 2 taught by Chen is considered to teach an equivalent amount of bacterial spores. Finally, instant claim 4.g. recites “the % v/v of all components add up to 100%”. This is interpreted to be relative to the total quantity of the additives as defined in instant claim 1.a. Therefore the surfactants taught by Chen, which fall within the defined genera of additives in instant claim 1, comprise 100% of all additives.
Guidelines on the obviousness of similar and overlapping ranges, amounts, and proportions are provided in MPEP § 2144.05. With respect to claimed ranges which “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). These guidelines apply to the ranges of surfactants, fungal spores, and adjuvants taught by Chen – in each instance, the range significantly overlaps with or encompasses the ranges or values recited in instant claims 1-2, 4, and 8.
Chen does not teach a specific ratio between ethoxylated triglyceride surfactants and the sum of EO-PO block polymers and fatty acid polyethylene glycols as recited in instant claim 7. However, a person of ordinary skill in the art could arrive at the claimed range of ratios via routine optimization within the prior art conditions taught by Chen. "[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). See MPEP § 2144.05.II. In the absence of evidence of the criticality of the claimed range of ratios, the limitation in instant claim 7 is considered obvious in view of the teachings of Chen.
Chen does not teach the specific Pseudomonas species P. fluorescens, the specific EO-PO copolymer to be an EO/PO/EO block copolymer with a specific average molecular weight (AMW), nor the specific fatty acid polyethylene glycol PEG 400 dioleate. These deficiencies are offset by the teachings of Jain, Zarrintaj, and Fabri.
Jain teaches a review of fluorescent Pseudomonas species and their impacts on plant growth and disease protection (Abstract). Plant associated microbes are taught to stimulate plant growth, improve soil health, and improve plant tolerance of abiotic and biotic stresses (pg. 1, Introduction, para. 1). In particular, fluorescent Pseudomonas species are taught to be able to increase mutual population of beneficial microbes in the soil, increase plant growth, production of hormones, and production of secondary metabolites, and suppress and/or reduce plant disease (Figure 1 and pg. 2-3, 2. Plant Disease Protection and 3. Plant Growth Promotion). One specific species of Pseudomonas spp. that is taught to be beneficial to plants is P. fluorescens (Table 1 and pg. 4, Conclusion and Future Prospects).
Zarrintaj teaches a review of poloxamers, a synthetic tri-block copolymer of poly(propylene oxide) “sandwiched between two hydrophilic chains of poly(ethylene oxide)” (Abstract). Poloxamers are taught to be synthetically modifiable polymers that have applications in many fields, due in part to their “unique properties such as thermosensitivity and micellar formulation”, and are regarded as “inactive molecules with no cytotoxicity” (pg. 38, Introduction, para. 1). Table 1 provides a list of popular poloxamer copolymers and teaches their mass, HLB, and application. The popular poloxamers that have HLB from 1-18 have molar masses that range from 1850-5750 g/mol (Table 1).
Fabri teaches methods and compositions that improve plant growth (Abstract). In some embodiments, the compositions comprise one or more terpenes, one or more organic solvents, and one or more surfactants and impart improved plant growth without toxicity (para. [0012-0016] and claims 1 and 5). Surfactants are taught to be present in an amount from 0.5-15% w/w (claims 20 and 44) and include the ethoxylated fatty acid PEG 400 dioleate (para. [0050], [0061], and [0063] and Example Compositions K, N, O, and P).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, to modify the invention of Chen with the teachings of Jain, Zarrintaj, and Fabri to arrive at the invention of instant claims 1-2, 4, and 6-8 because combining prior art elements from similar inventions to impart known benefits yields predictable results. Chen teaches formulations for seed coating and foliar spraying that comprise fungal spores, which may be of the Pseudomonas family, surfactants including castor or soybean oil ethoxylates with 5-20 EO units, ethylene oxide/propylene oxide copolymers with an HLB from 1-18, and fatty acid polyethylene glycols, adjuvants which include mineral oil, and water in amounts that rendered obvious the quantities, ratios, and ranges recited in instant claims 1-2, 4, and 7-8.
In view of the teachings of Jain, one of ordinary skill would be motivated to select the specific member of Pseudomonas spp. in the composition of Chen to be P. fluorescens because Jain teaches that the species stimulates plant growth, improves soil health, and improves plant tolerance of abiotic and biotic stresses. The ordinary artisan would recognize these properties as beneficial in a composition that is intended to be applied to plants and would desire use of the fungal species in their composition.
In view of the teachings of Zarrintaj, a person of ordinary skill would be motivated to select a tri-block poloxamer copolymer as the ethylene oxide/propylene oxide copolymer with an HLB from 1-18 in the invention of Chen because Chen does not teach a specific species and Zarrintaj teaches missing information the ordinary artisan would require to complete their invention. Zarrintaj further teaches that the polymers are highly modifiable via synthetic conditions, have unique properties, and are not cytotoxic, which the ordinary artisan would recognize as desirable properties in a surfactant. Further, in Table 1 Zarrintaj teaches that many of the commonly available poloxamers have HLB values within the range taught by Chen, which one of ordinary skill would recognize as being suitable for the invention of Chen.
Finally, in view of the teachings of Fabri one of ordinary skill would be motivated to use PEG 400 dioleate as the specific fatty acid polyethylene glycol in the invention of Chen because Chen does not teach a specific species and Fabri teaches missing information the ordinary artisan would require to complete their invention. Fabri further teaches that the surfactant is used in a range of amounts that overlaps with the quantities taught by Chen and that PEG 400 dioleate is part of a composition that imparts improved plant growth without toxicity, which the ordinary artisan would recognize as desirable in a composition intended to be applied to a plant. As a result, there is a reasonable expectation of success in arriving at the invention of instant claims 1-2, 4, and 6-8 in view of the teachings of Chen, Jain, Zarrintaj, and Fabri.
Claims 9 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (WIPO International Patent Publication No. WO 2009/126473 A1, published on 15 October 2009, provided by Applicant in the IDS filed on 29 September 2023) in view of Jain (Int. J. Agronomy 2016, 2016 (1), 1.), Zarrintaj (Acta Biomater. 2020, 110, 37.), and Fabri (U.S. Patent Application Publication No. US 2008/0146444 A1, published on 19 June 2008) as applied to claims 1-2, 4, and 6-8 above, and further in view of Ahern (The Scientist, 1995, 9 (15), 20).
Chen, Jain, Zarrintaj, and Fabri teach the above.
Chen, Jain, Zarrintaj, and Fabri do not teach a kit of at least two parts to prepare the composition. This deficiency is offset by the teachings of Ahern.
Ahern teaches an overview of reagent kits and their benefits to scientists (Title). The advantage of purchasing products, rather than individual component parts, is taught to be in conserving time and money (pg. 4, para. 2). Referring to reagent kits used in research laboratories, Ahern teaches that “[i]f premade biochemical sand reagents offer scientists the opportunity to better manage their time, putting these products all together in kits takes the convenience one step further” (pg. 5, para. 2). Kits are taught to comprise all the component parts needed for a particular investigation or application, including instructions, allowing users “more time to spend on [their] primary focus” (pg. 5, para. 3-5).
It would have been prima facie obvious to a person of ordinary skill in the art, prior to the filing of the instant application, in view of the teachings of Ahern to prepare a kit comprising at least two parts to prepare the composition rendered obvious above because the use of a known technique to improve a product in a known manner to impart a known benefit produces predictable results. The teachings of Chen, Jain, Zarrintaj, and Fabri rendered obvious a composition for seed coating and foliar spraying comprising fungal spores of P. fluorescens, the surfactants castor or soybean oil ethoxylates with 5-20 EO units, a tri-block poloxamer copolymer with an HLB from 1-18, and PEG 400 dioleate, the adjuvant mineral oil, and water in amounts that rendered obvious the quantities, ratios, and ranges recited in instant claims 1-2, 4, and 7-8.
In view of the teachings of Ahern, a person of ordinary skill in the art would be motivated to formulate the composition above as a kit comprising at least two parts because Ahern teaches that kits benefit users by saving them time and money, which an ordinary artisan would desire in a product that is intended to be sold to users. As a result, there is a reasonable expectation of success in arriving at the invention of claims 9 and 15 in view of the teachings of Chen, Jain, Zarrintaj, and Fabri and further in view of the teachings of Ahern.
Conclusion
No claims are allowed.
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/S.J.S./
Examiner, Art Unit 1619
/TIGABU KASSA/Primary Examiner, Art Unit 1619
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