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 .
Claims 1-34 are pending examination.
Election/Restrictions
Claims 7-29, 33 and 34 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 3/10/2026.
Applicant’s election without traverse of Group I, claims 1-6 and 30-32 in the reply filed on 3/10/2026 is acknowledged.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 10/9/2023 and 5/23/2024 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements have been considered by the examiner.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 31 and 32 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claims do not fall within at least one of the four categories of patent eligible subject matter because the claims recite a use but fails to recite steps.
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 1-6, 31 and 32 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.
Claim 1 recites “a botanical extract comprising allicin” which is indefinite. The metes and bound of the term “botanical extract” cannot be deciphered from the specification. The specification states that “preferably, a botanical extract comprising allicin is extracted mainly from garlic bulb (allium sativum)” (page 5, lines 21-23) however other sources are not identified. For the purpose of examination the term has been treated as any extract from the Allium genus. Claims 2-6, 31 and 32 are rejected for depending on claim 1.
Regarding claim 3, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For the purpose of examination the claim has been treated as any alcoholic extract.
Claim 6 recites that the composition further comprises “additional components that promote germination of endospores in metabolically active forms only when applied in a field” which is indefinite. The metes and bounds of what compounds encompass this limitation cannot be deciphered. The specification states that these components comprise, but are not limited to, carbons sources, nitrogen sources and metabolic extracts of microbial origin (page 6, lines 4-16). For the purpose of examination the term has been treated as reading on any compound which acts as a growth media, fertilizer, nutrient broth or auxiliary agent commonly used in agricultural formulations including water.
Claims 31 and 32 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential steps, such omission amounting to a gap between the steps. See MPEP § 2172.01. The omitted steps are: how the composition is applied to agricultural crops, seeds or sowing furrows.
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 Van Der Lelie et al. (US 2018/0092363; published April 5, 2018).
Applicant claims an agricultural composition comprising endospores 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 those is 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 Van Der Lelie et al. is joined.
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]. 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 both Lipa and Van Der Lelie are drawn to agricultural formulations comprising plant extracts 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 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 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 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.
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 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 Lara-Cambil et al. (US 2007/0160725; published July 12, 2007).
Applicant claims an agricultural composition comprising endospores 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)
The teachings of Lipa and Van Der Lelie et al. are addressed in the previous 103 rejection. Lipa and Van Der Lelie et al. do not specify an alcohol extract of allium. It is for this reason that Lara-Cambil et al. is joined.
Lara-Cambil et al. teaches the use of extracts from the Allium genus for food and agrifood industry for use on plants being harvested or post-harvest plants as well as environmental disinfection (abstract). The extracts are known to contain allicin, have insecticide effects and to be used in agricultural treatments [0004-0005]. The minimum dose used in agricultural treatments is 10 ppm with maximum being 50% (w/w) [0070]. Alcohol extracts used in agrifood industry are obtained by crushing garlic, mixing in water then extracting with hexane or n-butanol and the alcohol extract comprises 0.5-5% w/w of the extracts [0092].
Lipa, Van Der Lelie and Lara-Cambil et al. are drawn to agricultural use of plant extracts. Therefore, it would have been prima facie obvious for one of ordinary skill in the art to combine the teachings of Lipa, Van Der Lelie et al. and Lara-Cambil et al. to us an alcoholic 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, Van Der Lelie and Lara-Cambil to use alcohol extracts of allicin because Lara-Cambil et al. teach extracting garlic with n-butanol to obtain an alcohol extract comprising allicin for use in the agrifood industry.
Conclusion
No claims allowed.
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DANIELLE D. JOHNSON
Examiner
Art Unit 1611
/KYLE A PURDY/ Primary Examiner, Art Unit 1611