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 .
DETAILED ACTION
Claim 21 is cancelled.
Claims 1-20 are pending in the current application.
Claims 8-20 are withdrawn from consideration (see discussion, below).
Claims 1-7 are examined in the current application.
Election/Restrictions
Claims 8-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Applicant timely traversed the election requirement in the reply filed on April 15th 2026.
Applicant's election with traverse of claims 1-7 in the reply filed on April 15th 2026 is acknowledged. The traversal is on the grounds that NPL Holzer et al. discloses using Lactobacillus brevis or Lactobacillus buchneri and not the combination of Lactobacillus brevis and Lactobacillus buchneri. Therefore, the technical feature of the combination of the two Lactobacillus strain is rendered special and the unity between the groups is not broken. This is not found persuasive because the inventions listed as Groups I-III do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons: The special technical feature of Groups I-III is a composition comprising Lactobacillus brevis and/or Lactobacillus buchneri. However, a composition comprising of Lactobacillus brevis and/or Lactobacillus buchneri does not present a contribution over the prior art. As set forth on page 283 of NPL Holzer et al., “The role of Lactobacillus buchneri in forage preservation” (from TRENDS in Biotechnology Vol. 21 No. 6. Pp. 282-287) where sillage treatment with heterofermentative lactic acid bacteria (i.e., L. buchneri or L. brevis) is disclosed. As such, a composition comprising Lactobacillus brevis and/or Lactobacillus buchneri does not involve an inventive step. Thus, the technical feature is not a special technical feature and the claims are not so linked within the meaning of PCT Rule 13.2 so as to form a single inventive concept, and unity between Groups I-III is broken.
The requirement is still deemed proper and is therefore made FINAL.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over NPL Contreras-Govea et al., “Microbial inoculants for Silage” (from Focus on Forage – Vol 8: No. 4) and Holzer et al., “The role of Lactobacillus buchneri in forage preservation” (from TRENDS in Biotechnology Vol. 21 No. 6. Pp. 282-287).
Regarding claims 1-4 and 7: Contreras-Govea and Holzer disclose fermenting silage (i.e., wheat, alfalfa and/or legume) with at least one obligatory heterofermentative lactic acid bacteria (e.g., L. buchneri, L. brevis, L. alimentarius, L. plantarum, L. curvatus) and at least one homofermentative bacterial strain in order to provide silage with better dry matter recovery and aerobic stability (see Contreras-Govea page 1 left column to page 2 top left column; see Holzer page 285 right column to page 286 right column).
As to the bacterial strains recited in claims 1-4: Contreras-Govea and Holzer disclose of fermenting silage with at least one obligatory heterofermentative lactic acid bacteria (e.g., L. buchneri, L. brevis, L. alimentarius, L. plantarum, L. curvatus) and at least one homofermentative bacterial strain (e.g., an enterococcus species) in order to provide silage with better dry matter recovery and aerobic stability (see Contreras-Govea page 1 left column to page 2 top left column; and Holzer page 285 right column to page 286 right column), and silage aerobic deterioration is directly related to excess lactic acid and silage aerobic stability is directly related to acetic acid content, where homofermentative lactic acid bacteria are known to form lactic acid and heterofermentative lactic acid bacteria (e.g., lactobacillus buchneri) are known to convert lactic acid to acetic acid (see Holzer pages 284-286), but Contreras-Govea and Holzer fail to disclose the bacterial strains recited in claims 1-4; However, given the fact that the synergistic relations between homofermentative and heterofermentative silage inoculants are known (see Contreras-Govea page 2, top of left column; and Holzer pages 285-286), and there are performance difference between different strains of a bacterial organism and selecting the right strain to meet desired traits is well known (see Contreras-Govea page 3, top right column; and Holzer page 285 right column to page 286 right column), and since there are finite homofermentative lactic acid bacterial species that are present in silage and are commonly known and used to ferment silage (see Holzer Box 1 on page 283), it would have been obvious to a skilled artisan to have selected a strain of lactobacillus lactis in order to optimize the synergistic effect imparted by the homofermentative strains and heterofermentative strains bacterial mixture in the silage inoculant, and thus arrive at the claimed limitations.
Regarding claims 5 and 6: Contreras-Govea discloses that the lactic acid formed by the homofermentative lactic acid bacteria quickly lowers the pH which inhibits other bacteria (see Contreras-Govea page 1, right column). Contreras-Govea also discloses that the speed and efficiency of the fermentation (i.e., pH drop rate) depends on the number and type of bacteria, and that the speed of pH drop affects the quantity of lactic acid produced by the bacteria (see Contreras-Govea page 1, left column). Holzer, discloses that aerobic deterioration is directly related to excess lactic acid and aerobic stability is directly related to acetic acid content, where homofermentative lactic acid bacteria are known to form lactic acid and heterofermentative lactic acid bacteria (e.g., lactobacillus buchneri) are known to convert lactic acid to acetic acid (see Holzer pages 284-286). Accordingly, during a speedy and efficient fermentation, the pH drops quickly without excess lactic acid. Therefore, it would have been obvious to a skilled artisan at the time the application was filed to have modified Conreras-Govea and Holzer, and to have adjusted the inoculation and fermentation time, in order to optimize the synergistic effect observed in the prior art, and thus arrive at the claimed limitations. As set forth in MPEP §2144.05 discovering an optimum value of a result effective variable, involves only routine skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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/ASSAF ZILBERING/Examiner, Art Unit 1792
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