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 .
Response to Arguments
Applicant’s traverse of the restriction requirement has been considered but is not deemed persuasive. Applicant’s argument, that the Office has not met its burden to demonstrate that the search would seriously be burdened in examining methods of generating a microbial consortium while also searching microbial compositions using the same one or more microorganisms found in the microbial; consortium, is not convincing, since claim 1 does not require the method steps recited in claim 11, and claim 11 does not require the components such as seaweed, digestates or humic substances to be included in the product. In any event, there is more involved in examining a patent application besides searching, such as formulating rejections and evaluating applicant’s arguments. Applicant’s’ argument, that claim 11 has been amended to depend from claim 1, is not convincing. Claim 11 does not “depend” from claim 1 but merely refers to it. The process of claim 11 is directed to making only the consortium recited in claim 1, and not the entire microbial fertilizer composition. Accordingly the restriction requirement is made FINAL.
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.
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 1-7, 9, 10, 13-16 and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Gaunt (US 10,125,055) in view of Wolf et al (US 12,698,244), further in view of KR 20180006242 A and CN 113461464 A. Gaunt discloses method for creating nutrient -rich biologically active soils and horticulture media, wherein the method includes mixing into a base media nutrients including soluble humic and fulvic acids, seabird guano, Epsom salt and gypsum. (See col. 2, lines 21-60, particularly lines 47-60,) Gaunt further discloses in claims 22 and 23 that various organisms can be added to the growth media. The differences between the composition disclosed by Gaunt, and that recited in claims 1-7, 9, 10, 13-16 and 18-20, are that Gaunt does not disclose that the organism should include a consortia comprising a microorganism such as phyla proteobacteria and a probiotic such as yeast., or that it should include seaweed or a cellulose source such as alfalfa. Wolf et al disclose consortia including prokaryotic organism including Proteobacteria (see col. 21, lines 30-34, with a further disclosure of the meny benefits of the use of the consortia in fertilizers at col. 2, lines 23-53 and col. 30, lines 21-43. Wolf et al specifically disclose Phylum Proteobacteria in Table 4. KR 20180006242 A discloses in Paragraph [0030] of the English translation that the value of seaweeds as a source of fertilizer and soil organic matter in relation to plant growth has long been known, and due to the chemical properties contained in seaweeds, it is possible to supplement and replenish trace elements that are often prone to shortage in common ground soils. Wolf et al also disclose in the paragraph bridging columns 20 and 21 that the term “microorganism” includes yeast and algae. CN 113461464 A discloses in Paragraph [0023] of the English translation that alfalfa contains iron and other micronutrients useful as fertilizer. It would have been obvious from Wolf et al to include a microbial consortium comprising phyla proteobacteria in the soil media of Gaunt. One of ordinary skill in the art would have been motivated to do so, since Gaunt teaches at col. 10, lines 20-26 that various ingredients are blended into the soil media to alter the ratio between the carbon available to the microbial population and nutrients required for growth, and Wolf et al disclose the many benefits of prokaryotic organisms to enhance the effectiveness of nutrients at col. 2, lines 23-53 and col. 30, lines 21-43, with a specific disclosure of Phylum Proteobacteria in Table 4. It would also have been obvious from Wolf et al to include a yeast in the composition of Gaunt, since Wolf et al disclose yeasts as microorganisms in the paragraph bridging columns 20 and 21, and Gaunt discloses in claims 22 and 23 that various microorganisms can be added. It would have been further obvious from KR 20180006242 A and CN 113461464 A, respectively, to include seaweed and alfalfa in the soil media of Gaunt. One of ordinary skill in the art would have been motivated to do so, since KR 20180006242 A and CN 113461464 A disclose the value of seaweed and alfalfa as nutrient supplements in fertilizers, respectively, and Gaunt suggests at col. 6, lines38-58 that any known substance useful as a nutrient could be added.
Claims 8 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Gaunt in view of Wolf et al, further in view of KR 20180006242 A and CN 113461464 A, as applied to claims 1 and 16 above, even further in view of Wood et al (US 11,406,672). It would have been even further obvious from Wood et al to include a microorganism such as Lactobacillus delbrueckii in the consortium. One of ordinary skill in the art would have been motivated to do so, since Wood et al disclose Lactobacillus delbrueckii as a suitable bacteria in a probiotic composition at col. 6, line 4.
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 4, 8 and 17 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.
In claim 4, it is indefinite as to whether calcium silicate silicic acid is a single material, or separate materials of calcium silicate and silicic acid.
In claims 8 and 17, it is indefinite as to what microbial consortia would be included in No. XXXXX, YYYYY and ZZZZZ.
Zaseybida et al (US 20190256431) is made of record for disclosing a fertilizer composition comprising seawater solids, fulvic acid and humic acid. (See claim 2.)
Renaud et al (US 2022/0098124) is made of record for disclosing process for making a natural fertilizer based on fermented macroalgae, natural additives and probiotic bacteris.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WAYNE A LANGEL whose telephone number is (571) 272-1353. The examiner can normally be reached Monday through Friday from 8:15 am to 4:15 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Zimmer can be reached at 571-270-3591. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WAYNE A LANGEL/Primary Examiner, Art Unit 1736
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