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 .
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.
Status of the Claims
Claims 1 and 5-14 are pending. Claims 2-4 are cancelled. Claims 7-11 and 14 are withdrawn. Claims 1, 5, 6, 12, and 13 are under consideration in this action.
Election/Restrictions
Applicant's election with traverse of Group I (claims 1-6, 12, and 13) in the reply filed on June 24, 2026 is acknowledged. The traversal is on the ground(s) that as amended, claims 1, 7, 8, and 9 now all recite the combination of a first mycorrhizal fungus being Rhizophagus irregularis and a second mycorrhizal fungus being Glomus mosseae, and none of the cited references disclose or render obvious this combination.
This is not found persuasive because the combined teachings of Forte et al. (Forte) (US 2017/0275212 A1; published Sept. 28, 2017) and Sheteiwy et al. (Sheteiwy) (Physiologia Plantarum; published May 8, 2021), and evidenced by Martin et al. (Martin) (Soil Biology & Biochemistry; published 2012) render the combination of Glomus mosseae, Rhizophagus irregularis, and Bacillus amyloliquefaciens obvious for the reasons set forth in detail below in the rejection under 35 U.S.C. 103.
The requirement is still deemed proper and is therefore made FINAL.
Claims 7-11 and 14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on June 24, 2026.
Claim Objections
Claims 5, 6, 12, and 13 are objected to because of the following informalities: each of these claims recite ratios between two components. Examiner suggests amending each of the ratios to use a colon rather than a slash between the two numbers of each ratio to put the claims in better form and not be read as fractions.
Appropriate correction is required.
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.
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.
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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Forte et al. (Forte) (US 2017/0275212 A1; published Sept. 28, 2017) and Sheteiwy et al. (Sheteiwy) (Physiologia Plantarum; published May 8, 2021), and evidenced by Martin et al. (Martin) (Soil Biology & Biochemistry; published 2012).
Forte discloses a soil enhancement fertilizer composition that is delivered in a water-soluble pouch. The pouch contains specially composted and pulverized camelid manure, Mycorrhizal fungi, and yucca powder. The pouch is dissolved in water and stirred to release its contents and then the solution is poured on the soil and/or applied to the leaves of both indoor or outdoor container plants (abstract).
The composition is designed for home use to fertilize all types of potted house plants and garden plants, including vegetables and herbs, and to enrich the soil for long-term plant growth, health, and maintenance (par.0014).
The preferred blend of Mycorrhizal fungi includes, inter alia, Glomus intraradices (also known as Rhizophagus irregularis) and Glomus mosseae. The blend is designed to cover the widest range of specific plant species and geographical locations (para.0045). As evidenced by Martin, Glomus intraradices and Glomus mosseae are species of arbuscular mycorrhizal fungi (AMF) (abstract).
The Mycorrhizal fungi is added to improve plant root structure to efficiently uptake nutrients from the composted manure. It also enables the plant to secure all the moisture that it requires. Mycorrhizal fungi form a symbiotic relationship with the plant and growth hundreds of tiny fungal filaments (hyphae) that spread out to reach far into the crevices of the soil to access, absorb, and transport required nutrients back to the plant. These fungal filaments improve the root mass by hundreds or thousands of times, enhancing the complex “web of life” required for all healthy plant and soil systems (para.0035-0036, 0038).
The Mycorrhizal fungi also play an important role in buttressing a plant’s natural defense against fungal rot disease. Mycorrhizal fungi produce and release beneficial substances that suppress and inhibit infectious pathogens. The Mycorrhizal fungi also defend root systems by forming touch physical protective layers made of chitin over the outside of root cells to deter invasions of soil pathogens (para.0037).
The Mycorrhizal fungi inoculants are sold as spores, the “seeds” of fungi. The goal is to deliver the spores near the root system of target plants which is accomplished by the invention during watering with the fertilizer composition. Root activity then stimulates the spores to germinate, find a nearby root, and being the symbiotic relationship. The selection of Mycorrhizal fungi in the invention is designed to be appropriate for nearly all houseplants, vegetables (and herbs) and other ordinary plant applications. A minimum quantity of spores is required to inoculate a houseplant, but the spores have a cumulative effect so that a 300-spore inoculation can be achieved in a month’s time with weekly applications of 80 spores (par.0039).
To better survive, the plant’s root system secretes certain exudates to attract organisms (fungi and bacteria) for water nutrient the plant is lacking (para.0040).
Forte does not appear to explicitly disclose the inclusion if Bacillus amyloliquefaciens. Sheteiwy is relied upon for this disclosure. The teachings of Sheteiwy are set forth herein below.
Sheteiwy discloses a study aimed to evaluate the effect of Bacillus amyloliquefaciens and/or Arbuscular Mycorrhizal Fungi (AMF) as natural biofertilizers on biomass, yield, and seed nutritive quality of soybean (abstract). Sheteiwy discloses that co-inoculation with B. amyloliquefaciens and AMF resulted in the highest plant biomass and yield under well-watered (WW) and drought stress (DS) conditions. The co-inoculation increased the primary metabolites content and alleviated the drought-induced reduction in soluble sugars, lipids, protein, and oil contents (abstract).
Sheteiwy discloses that their study demonstrated that the combined biofertilizer produced from B. amyloliquefaciens and AMF have a positive effect on soybean biomass, yield, seed quality, and composition under both well-watered and drought stress conditions. The improved seed quality and composition are reflected by the increased carbohydrate metabolism, soluble sugars, lipids, protein, and oil contents as well as by enhanced antioxidant compounds and enzymatic activities. In addition, the use of biofertilizers led to a better seed quality and germination percentage by improving and inhibiting abscisic acid accumulation in the seeds. Furthermore, biofertilizer application resulted in an increase in the ATP content in soybean seeds and hydrolytic activities of plasma membrane H+-ATPase, Ca2+-ATPase, and Mg2+-ATPase. This was more accentuated under drought stress, contributing to providing a proton concentration gradient for the uptake of minerals. In addition, biofertilizers contributed to an obvious reduction in cell seize and granularity, which may improve soybean tolerance to drought stress conditions (abstract; p.2166, Conclusions).
Sheteiwy discloses that the biofertilizers may have the potential to control many cellular processes in plants such as secondary active transport, cell pH, and turgor (p.2166, col.1, par.2).
As discussed above, Forte discloses fertilizer compositions comprising a blend of Mycorrhizal Fungi, including Glomus intraradices and Glomus mosseae, which are known as AMF, to fertilize potted house plants and garden plants and enrich the soil for long-term plant growth, health, and maintenance. One of ordinary skill in the art would have found it prima facie obvious before the effective filing date to combine the teachings of Forte and Sheteiwy and further include Bacillus amyloliquefaciens into the Forte’s fertilizer composition. One of ordinary skill in the art would have been motivated to do so in order to further provide the benefit of conferring drought stress tolerance to plants that the fertilizer is applied to. One of ordinary skill in the art would have had a reasonable expectation of success in doing so as Forte discloses fertilizer compositions comprising AMF species, and Sheteiwy discloses that Bacillus amyloliquefaciens are known to be used as fertilizers and known to be used in combination with AMF.
Furthermore, as a general principle it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose, the idea of combining them flows logically from their having been individually taught in the prior art. See In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) MPEP 2144.06. In the present case, both Forte and Sheteiwy are directed to fertilizer compositions, and are being combined to form a third composition to be used for the very same purpose.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made because every element of the invention has been fairly suggested by the cited references.
Claims 5, 6, 12, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Forte et al. (Forte) (US 2017/0275212 A1; published Sept. 28, 2017) and Sheteiwy et al. (Sheteiwy) (Physiologia Plantarum; published May 8, 2021), and evidenced by Martin et al. (Martin) (Soil Biology & Biochemistry; published 2012) as applied to Claim 1 set forth above, further in view of Kellar et al. (Kellar) (US 2018/0279624 A1; published Oct. 4, 2018).
The teachings of Forte and Sheteiwy and the motivation for their combination as they apply to Claim 1 are set forth above and incorporated herein.
The combined teachings of Forte and Sheteiwy do not appear to explicitly disclose the ratios of (i) the amount of spores of the first mycorrhizal fungus to the amount of spore of the second mycorrhizal fungus (Claims 5 and 12) or (ii) the ratio of the amount of spores of the first mycorrhizal fungus to the amount of spores of Bacillus amyloliquefaciens and the ratio of the amount of spores of the second mycorrhizal fungus to the amount of spores of Bacillus amyloliquefaciens (Claims 6 and 13). Kellar is relied upon for this disclosure. The teachings of Kellar are set forth herein below.
Kellar discloses inoculant compositions comprising spores of agriculturally beneficial microorganisms (para.0074). The inoculant compositions may be applied to a plant or plant part, as soil application, or as foliar application (para.0330-0331).
Among the suitable bacterial spores that are useful in the compositions include Bacillus amyloliquefaciens (para.0077). Among the suitable mycorrhizal spores useful in the compositions include Glomus intraradices and Glomus mosseae (par.0081).
The microbial spores are present in an amount ranging from 1x101 to about 1x1020 cfu per gram and/or ml of inoculant composition (par.0087).
With regards to the amount of each of Glomus intraradices, Glomus mosseae, and Bacillus amyloliquefaciens, and in turn, the ratios between each component, as discussed above, Kellar discloses that in inoculant compositions comprising the aforementioned microbial spores used for agricultural applications, the amount of microbial spores present in such compositions in an amount ranging from 1x101 to about 1x1020 cfu per gram and/or ml of inoculant composition. In light of Kellar’s disclosed art recognized and conventional amounts of microbial spores known to be incorporated into agricultural inoculant formulations, one of ordinary skill in the art would have found it prima facie obvious and would have been motivated to adjust the amount of each microbial species in the fertilizer composition of the combined teachings of Forte and Sheteiwy to be within Kellar’s disclosed range and optimize the amount of each microbial species based on art recognized factors, such as the plant to be treated and its environmental needs, the condition of the soil the plants are be planted in, the environmental and growing conditions the plants will be subjected to, and the growth stage of the plant at time of treatment, to obtain the desired or optimal fertilizer composition.
The adjustment of particular conventional working conditions (e.g., determining optimal or workable amounts of the Glomus intraradices, Glomus mosseae, and Bacillus amyloliquefaciens, and in turn the ratios between each component) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results, absent evidence of unexpected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955).
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made because every element of the invention has been fairly suggested by the cited references.
Conclusion
Claims 1, 5, 6, 12, and 13 are rejected. No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MONICA A. SHIN whose telephone number is (571)272-7138. The examiner can normally be reached Monday-Friday (9:00AM-5:00PM EST).
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/MONICA A SHIN/Primary Examiner, Art Unit 1616
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