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 .
Applicant’s amendment filed 6/10/2026 has been entered. Claims 1, 3, 4, 6-8, 10, 11, 14-29 and 31-34 were amended. Claims 1-34 are pending examination. Claims 7-29, 33 and 34 are withdrawn. Claims 1-6 and 30-32 are under examination.
Withdrawn rejections
Applicants’ amendments and arguments filed 6/10/2026 are acknowledged and have been fully considered. Any rejection and/or objection not specifically addressed below is herein withdrawn.
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.
Claim 6 is 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.
Claim 6 recites “metabolic extracts of microbial origin” which is indefinite. The metes and bounds of what the extract encompass cannot be deciphered. For the purpose of examination, the metabolic extracts are treated as referring to any carrier for bacteria formulations.
Claim Objections
Applicant is advised that should claim 1 be found allowable, claim 30 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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.
Claims 1, 2, 4-6 and 30-32 are rejected under 35 U.S.C. 103 as being unpatentable over Lipa (A Joint Application of Garlic (Albarep) and Bacterial (Bacilan) Plant protection products, Prace Naukowe IOR Poznan, XXX (1-2), pages 21-32) in view of Tzeng et al. (US2008/0152684; published June 26, 2008) and Van Der Lelie et al. (US 2018/0092363; published April 5, 2018).
Applicant claims an agricultural composition that is a solution comprising endospores formed by osmotic-stress-induction of 3 or more bacterial species from the genus Bacillus and a botanical extract comprising allicin, wherein the botanical extract is an alcoholic extract, and aqueous extract, a hydrolate extract or an essential oil. (Claim 1)
Applicant also claims a composition obtained from fermenting 3 or more bacterial species from the genus Bacillus mixing the bacterial cells with and a botanical extract comprising allicin in the same container, wherein the botanical extract is an alcoholic extract, and aqueous extract, a hydrolate extract or an essential oil. (Claim 30)
Lipa et al. teach formulations comprising 25-50% by weight Albarep in dried mixture with Bacilan decreased the number of viable spores of Bacillus thuringiensis var. kurstaki (abstract). Bacilan is a Bacillus thuringiensis product effective against lepidopterous pests in gardens and comprises 3.2% of spores and crystals of bacillus thuringiensis (page 21, paragraph 2; page 23, paragraph 1). Albarep is a commercially available garlic product used to control aphids, beetles, flies as well as the bacterium that causes angular spot of cucumber (page 21, paragraph 3). The prolonged storage of B. thuringiensis with garlic lyophylizate (Bacilan and Albarep) was studied (page 22, paragraph). The garlic juice or Albarep was diluted with nutrient broth as a growth medium for B. thuringiensis (page 24, paragraph 2; limitation of claims 5 and 6). Whether the mixture was dry or saline suspension greatly affected the survival rate of the spores with mixtures that are saline displaying less viability (page 25, paragraph 1; Tables 1&2). Results show that combining garlic lyophilizate with Bacillus thuringiensis spores would nonetheless provide effectiveness against lepidopterans, aphids, coleopterans, dipterans and some bacterial and fungal pathogens when combined together into a single spray (page 27, paragraph 1 through page 28, paragraph 2).
Lipa teach preparing an extract by converting alliin into allicin in buffered garlic juice (page 22, paragraph 4). The juice which inherently has water (saline) has a stronger inhibitory action than Albarep which is a garlic lyophilizate (page 26, paragraph 1). Therefore, Lipa teaches mixtures of a Bacillus biopesticide and an aqueous extract of allicin. With respect to claim 1, Lipa does not specify endospores of three or more bacterial species of Bacillus. With respect to claim 4, Lipa does teach B. thuringiensis but does not specific 3 or more bacterial species of Bacillus selected from B. amyloliquefaciens and B. velezensis. It is for this reason that Tzeng et al. and Van Der Lelie et al. are joined.
Tseng et al. teach isolated Bacillus subtilis species which is used to protect plants against pathogens and enhance plant growth (abstract). Preferably the composition comprises 5X1010 cfu/ml endospores [0015, 63]. The endospores are obtained by batch culture liquid fermentation and are mixed with common products used in agriculture such as whey powder and soybean powder [0076-77; claim 2].
Van Der Lelie et al. disclose compositions comprising Bacillus thuringiensis strain RTI545 for benefiting plant growth and controlling pests (abstract). Microorganisms that can be applied as biofertilizer and/or biopesticide to control pathogenic fungi, viruses and bacteria are desirable and in high demand due to having less environmental impact when compared to chemical agents [0005]. Various strains of Bacillus thuringiensis, Bacillus firmus, and Bacillus subtilis var. amyloliquefaciens strain FZB42 work as biocontrol agents and biostimulants [0006]. To benefit plants a composition comprising Bacillus thuringiensis RTI545 and one or more of a combination of biostimulants, fungicides, bacteriocides, fertilizers and plant extracts which can be biological agents are prepared [0011]. Van Der Lelie teaches compositions in the form of a liquid also with carriers or a yeast extract [0077-80]. Mixtures of Bacillus thuringiensis RTI545 with other biocontrol strains selected from Bacillus thuringiensis, Bacillus velezensis strains and Bacillus amyloliquefaciens or combination thereof are desired [0084]. Example 16 combines RTI545 with Bacillus velezensis and Bacillus licheniformus for the treatment of lesion nematodes [0273].
Since Lipa, Tzeng et al. and Van Der Lelie are drawn to agricultural formulations comprising plant components and Bacillus biocontrol agents it would have been prima facie obvious to one of ordinary skill in the art to combine the teachings of Lipa, Tzeng et al. and Van Der Lelie et al. and formulate an agricultural composition comprising 3 or more bacterial species of Bacillus with an aqueous plant extract comprising allicin with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Lipa, Tzeng et al. and Van Der Lelie to further include mixtures of 3 or more bacterial species of Bacillus because Lipa teaches combining aqueous extracts of garlic with Bacillus thuringiensis, Tzeng et al. teach endospores of Bacillus species are commonly used to protect plants from pathogens and enhance plant growth and Van Der Lelie teaches that mixtures of Bacillus thuringiensis, Bacillus velezensis strains and Bacillus amyloliquefaciens are effective biocontrol agents. Additionally, Van Der Lelie teaches combining Bacillus thuringiensis RTI545, Bacillus velezensis and Bacillus licheniformus together specifically aids in the treatment of lesion nematodes.
Response to Arguments
Applicants’ arguments filed 6/19/2026 have been fully considered but they are not persuasive. Applicant first argues that the Examiner has not provided adequate reasoning as to why one of skill in the art would have been motivated to combine endospores formed by osmotic stress induction of 3 or more bacterial species with Allium extract except by hindsight. The Examiner is not persuaded by this argument because the patentability of a product does not depend on its method of production. Lipa teaches combining garlic extract with Bacillus thuringiensis spores provide effectiveness against lepidopterans, aphids, coleopterans, dipterans and some bacterial and fungal pathogens when combined together into a single spray (page 27, paragraph 1 through page 28, paragraph 2). Van der Lelie teaches that mixtures of Bacillus thuringiensis, Bacillus velezensis strains and Bacillus amyloliquefaciens are effective in the treatment of lesion nematodes [0273]. Therefore, one of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Lipa and Van Der Lelie to further include mixtures of 3 or more bacterial species of Bacillus with Allium extract. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Therefore, arguing that the composition is made by osmotic stress induction does not overcome the rejection because the product appears to be the same as that of the prior art. The burden shifts to applicant to come forward with evidence establishing an nonobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 799, 803, 218 USPQ 289, 292-33 (Fed. Cir. 1983).
Applicant argues Lipa does not teach any agricultural composition that is a solution and is focused on dry mixtures which teaches away from the claimed invention. The Examiner is not persuaded by this argument because Lipa teaches the mixture was dry or saline suspension, however the form greatly affected the survival rate of the spores with mixtures those is saline displaying less viability (page 25, paragraph 1; Tables 1&2). However, known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994). Therefore, the teachings of Lipa and Van Der Lelie render the claimed composition prima facie obvious.
Finally, Applicant argues that the claimed invention disclosed in Example 4 demonstrates an unexpected nematicidal effect greater than that obtained with the Bacillus species alone and the allium extract alone. The Examiner is not persuaded by this argument because the data only supports the methods of increasing mortality of Meloidogyune javanica not methods of treating plants. Furthermore, the data is not a proper side by side comparison with the closest prior art Lipa which comprises garlic extracts with one species of Bacillus. Therefore, the rejection has been maintained.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Lipa (A Joint Application of Garlic (Albarep) and Bacterial (Bacilan) Plant protection products, Prace Naukowe IOR Poznan, XXX (1-2), pages 21-32) in view of Tzeng et al. (US2008/0152684; published June 26, 2008) and Van Der Lelie et al. (US 2018/0092363; published April 5, 2018), as applied to claims 1, 2, 4-6 and 30-32 above in further view of Xiong et al. (CN 200810024407A; published November 16, 2011).
Applicants claim an agricultural composition comprising endospores of 3 or more bacterial species from the genus Bacillus and an Allium extract comprising allicin, wherein the extract is an ethanolic extract. (Claim 1)
The teachings of Lipa and Van Der Lelie et al. and Tzeng et al. are addressed in the previous 103 rejection. Lipa, Tzeng et al. and Van Der Lelie et al. do not specify an ethanol extract of allium. It is for this reason that Xiong et al. is joined.
Xiong et al. teaches methods of producing garlic extracts (abstract). The extracts are known to contain allicin, have insecticide effects and to be used in agricultural treatments [0004-0005]. The extraction method is high steam distillation where ethanol is preferably used and found to aid in stabilizing allicin in the garlic extract [0004].
Lipa, Tzeng et al., Van Der Lelie and Xiong et al. are drawn to garlic extracts. Therefore, it would have been prima facie obvious for one of ordinary skill in the art to combine the teachings of Lipa, Tzeng et al., Van Der Lelie et al. and Xiong et al. to us an ethanol extracts of comprising allicin with a reasonable expectation of success. One of ordinary skill in the art would have been motivated before the time of filing to combine the teachings of Lipa, Tzeng et al., Van Der Lelie and Xiong et al. to use ethanol extracts of garlic because Xiong et al. teach extracting garlic with ethanol aids in stabilizing allicin.
Response to Arguments
Applicants’ arguments with respect to amended claim 3 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
No claims allowed.
Applicants’ 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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DANIELLE D. JOHNSON
Examiner
Art Unit 1617
/KYLE A PURDY/Primary Examiner, Art Unit 1611
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