DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 20 July 2026 has been entered.
Claims 57-61, 64, and 73 have been amended. Claims 62 and 63 have been cancelled. As the elected strain in claim 61 has been removed and placed in claim 57, claim 61 is now considered withdraw, as only non-elected species remain. Claim 74 is newly added, but is withdraw as being drawn to a non-elected invention. Thus, claims 61 and 74 are withdrawn. Claims 57-60 and 64-73 are currently pending and under examination.
This Application is a continuation of U.S. Patent Application No. 17/686783, now issued Patent No. 11,930,822, filed March 4, 2022, which is a continuation of U.S. Patent Application No. 16/467384, now issued Patent No. 11,284,622, filed June 6, 2019, which is the 371 National Phase of International Patent Application PCT/US2017/065081, filed December 7, 2017, which claims benefit of priority to U.S. Provisional Patent Application No. 62/431927, filed December 9, 2016.
Terminal Disclaimer
The terminal disclaimer filed on 20 July 2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Patent Nos. 11,284,622 and 11,930,822, has been reviewed and is accepted. The terminal disclaimer has been recorded.
Withdrawal of Rejections:
The rejection of claim 73 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite, is withdrawn.
The rejection of claims 57, 58, 61, 62, and 64-73 on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 11,284,622 and U.S. Patent No. 11,930,822, is withdrawn.
The rejection of claims 57-62 and 64-73 under 35 U.S.C. 102(a)(1) as anticipated by Didonato-Tinsley et al., is withdrawn.
New Rejections:
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.
Claims 57-60 and 64-73 are rejected under 35 U.S.C. 103 as being unpatentable over Didonato-Tinsley et al. (IDS; WO 2015/085063; Published June 11, 2015).
With regard to claims 57 and 68, Didonato-Tinsley et al. teach a composition for application to a plant or plant part, including to a seed, the composition comprising a co-culture of at least two strains of Methylobacterium (Abs.; Para. 15, 18, 56, 70). The taught Methylobacterium strains include Methylobacterium NLS0109 and Methylobacterium NLS0017 (Ex. 7, Table 6; Para. 74). As Didonato-Tinsley et al. teach a co-culture of at least two strains of Methylobacterium and also expressly teach strains NLS0109 and NLS0017, it would have been obvious to one of ordinary skill in the art to select the two or more Methylobacterium strains from those expressly taught. The Methylobacterium strains are present at a concentration of at least about 5x108, 1x109, 3x1010, or 6x1010 CFU per milliliter (Para. 74), which are fully encompassed within at least 5x107 CFU per milliliter. The composition further comprises a liquid, emulsion, or solid matrix, which is a carrier, and an agriculturally acceptable adjuvant, and/or excipient (Para. 46).
Didonato-Tinsley et al. render obvious the composition as claimed, including all components as claimed. As the composition cannot be separated from its functions, application of the composition of Didonato-Tinsley et al. to a plant or plant part would necessarily provide the result of increasing plant yield.
With regard to claim 73, Didonato-Tinsley et al. teach that the composition can further comprise an additional biocontrol agent including a beneficial or biopesticidal microorganism other than the Methylobacterium strain (Para. 49).
With regard to claim 58, Didonato-Tinsley et al. teach that the composition can further comprise an additional biocontrol agent including a bacterium, fungus, virus, or protozoan (Para. 49).
With regard to claim 59, Didonato-Tinsley et al. teach that the composition can further comprise an additional biocontrol agent including Bacillus sp., Pseudomonas sp., Coniothyrium sp., Pantoea sp., Streptomyces sp., and Trichoderma sp. (Para. 49).
With regard to claim 60, Didonato-Tinsley et al. teach that the composition can further comprise an additional biocontrol agent including Bacillus subtilis, Bacillus thuringiensis, Bacillus pumilis, Pseudomonas syringae, Trichoderma harzianum, Trichoderma virens, and Streptomyces lydicus strains (Para. 49).
With regard to claim 64, Didonato-Tinsley et al. teach that the composition can further comprise a microbial biopesticide, which includes a fungicide (Para. 49, 65).
With regard to claims 65-67, Didonato-Tinsley et al. teach that the composition further comprises one or more agriculturally acceptable carriers, adjuvants, and/or excipients, including:
woodflours, clays, activated carbon, diatomaceous earth, fine-grain inorganic solids, calcium carbonate, calcium bentonite, kaolin, china clay, talc, perlite, mica, vermiculite, silicas, quartz powder, montmorillonite and mixtures thereof; and
polyvinyl acetates, polyvinyl acetate copolymers, hydrolyzed polyvinyl acetates,
polyvinylpyrrolidone-vinyl acetate copolymer, polyvinyl alcohols, polyvinyl alcohol
copolymers, polyvinyl methyl ether, polyvinyl methyl ether-maleic anhydride copolymer,
waxes, latex polymers, celluloses including ethylcelluloses and methylcelluloses, hydroxy
methylcelluloses, hydroxypropylcellulose, hydroxymethylpropylcelluloses, polyvinyl
pyrrolidones, alginates, dextrins, malto-dextrins, polysaccharides, fats, oils, proteins, karaya
gum, jaguar gum, tragacanth gum, polysaccharide gums, mucilage, gum arabics, shellacs,
vinylidene chloride polymers and copolymers, soybean-based protein polymers and
copolymers, lignosulfonates, acrylic copolymers, starches, polyvinylacrylates, zeins, gelatin,
carboxymethylcellulose, chitosan, polyethylene oxide, acrylamide polymers and copolymers,
polyhydroxyethyl acrylate, methylacrylamide monomers, alginate, ethylcellulose,
polychloroprene and syrups or mixtures thereof (Para. 16, 42, 69).
With regard to claims 69-72, Didonato-Tinsley et al. teach that the composition is applied to plant parts including a seed, a leaf, a fruit, a stem, a root, a tuber, and a coleoptile, and to plant parts of lettuce (Para. 45, 58, 67). It is noted that the composition as rendered obvious by Didonato-Tinsley et al. includes all components as claimed. As the composition of Didonato-Tinsley et al. cannot be separated from its functions, the composition would necessarily be capable of coating plant parts to provide a coated plant part including:
corn, a Brassica sp., alfalfa, rice, rye, sorghum, millet, sunflower, safflower, soybean, tobacco, potato, peanuts, cotton, sweet potato, cassava, coffee, coconut, pineapple, citrus trees, cocoa, tea, banana, avocado, fig, guava, mango, olive, papaya, cashew, macadamia, almond, sugar beets, sugarcane, oats, barley, tomatoes, green beans, lima beans, peas, cucurbits, ornamentals, and conifers;
rice, wheat, corn, barley, millet, sorghum, oat, and rye;
a turfgrass plant including annual bluegrass, annual ryegrass, Canada bluegrass, fescue, bentgrass, wheatgrass, Kentucky bluegrass, orchard grass, ryegrass, redtop, Bermuda grass, St. Augustine grass, and zoysia grass; and
a cucurbit plant including cucumber, cantaloupe, and musk melon.
Response to Arguments
In view of Applicant’s amendments, all previous rejections have been withdrawn. Therefore, Applicant’s arguments are moot. However, new rejections have been set forth above.
Conclusion
No claims are allowable.
Previously Presented Art or Record:
Bogosian, IDS, US 2013/0324407; Published 2013 (composition for treating a plant or plant part with a composition comprising a Methylobacterium strain and an additional beneficial microorganism).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER M.H. TICHY whose telephone number is (571)272-3274. The examiner can normally be reached Monday-Thursday, 9:00am-7:00pm ET.
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/JENNIFER M.H. TICHY/Primary Examiner, Art Unit 1653
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