DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Election/Restriction
Applicant's election with traverse of Clostridium spp. strain designation TPD3014, GenBank Accession No. MH189851.1, Pseudomonas spp. strain designation TPD3012, GenBank Accession No. MH190219.1, and tomato in the reply filed on 12 August 2026 is acknowledged. The traversal is on the ground that “the Examiner has not shown that a serious burden would result if all of the claims are examined together”, which Applicant supports with references to MPEP § 803.
This is not found persuasive because the referenced sections of the MPEP are directed to Applications filed under 35 U.S.C. § 111 and the instant Application has been filed under 35 U.S.C. § 371, which is examined under distinct guidelines. The demonstration of a serious search burden is not a requirement for 371 Applications and the argument is not found to be persuasive. See MPEP § 1850 for guidelines on restriction practice in Applications filed under 35 U.S.C. § 371.
The requirement is still deemed proper and is therefore made FINAL.
Status of Claims
Claims 1-4, 6, 9, and 18-23 are pending and under consideration in the instant Office Action, to the extent of the following elected species:
the specific first bacterial strain is Clostridium saccharobutylicum strain designation TPD3014, GenBank Accession No. MH189851.1;
the specific second bacterial strain is Pseudomonas veronii strain designation TPD3012, GenBank Accession No. MH190219.1; and
the specific plant is tomato.
Information Disclosure Statement
The information disclosure statements (IDSs) submitted on 27 September 2024 and 19 November 2025 were filed in compliance with the provisions of 37 CFR 1.97. Accordingly, the IDSs are being considered by the examiner.
Claim Objections
Claims 1-3 are objected to because of the following informalities:
Claims 1-3 recite “to a isoline” in the antepenultimate line (claims 1 and 3) or penultimate line (claim 2) of each claim. The phrase should be amended to recite “to an isoline” in each instance.
Claim 3 recites the word “stress” in the antepenultimate line, which is extraneous and should be removed.
Appropriate correction is required.
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 therefore, subject to the conditions and requirements of this title.
Claims 1-4, 6, 9, and 18-23 are rejected under 35 USC 101 because the claimed invention is directed to a natural product and natural phenomenon without significantly more as outlined in MPEP § 2106. Claims 1-3 and their dependent claims are directed to processes that apply compositions of matter and therefore fall within statutory categories. The claims recite products of nature, which claim naturally occurring phenomena and are within the law of nature judicial exception. See MPEP § 2106.04(b). No claim or specification passage requires a genetically modified strain, a new isolate defined by a unique deposit, or a structural change to any cell. This judicial exception is not integrated into a practical application because the specification and claims treat the microbial species as the active ingredients and do not add additional elements, improve or alter the species from their natural state, or display any markedly different characteristics, amounting to reciting only the natural-based product exhibiting its natural phenomenon. See MPEP § 2106.04(c). Following analysis according to MPEP § 2106.05, because the processes and products claimed in instant claims 1-3 do not recite significantly more, also known as an “inventive concept”, than the judicial exception they are therefore ineligible under 35 U.S.C. § 101. For further information on recitation of significantly more than the judicial exception, see MPEP § 2106.05(d).
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 1-4, 6, 9, and 18-23 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.
Claims 1-3 recite limitations referencing Table 1 or 2, which are disclosed in the specification. “Where possible, claims are to be complete in themselves. Incorporation by reference to a specific figure or table ‘is permitted only in exceptional circumstances where there is no practical way to define the invention in words and where it is more concise to incorporate by reference than duplicating a drawing or table into the claim. Incorporation by reference is a necessity doctrine, not for applicant’s convenience.’ Ex parte Fressola, 27 USPQ2d 1608, 1609 (Bd. Pat. App. & Inter. 1993).” See MPEP § 2173.05(s). Claims 4, 6, 9, and 18-23 depend from claims 1-3, incorporate all of their limitations, and are therefore also rejected. Applicant may overcome this rejection by amending the claims to recite the Markush groups of bacterial strains from which the first bacterial strain and the second bacterial strain are selected.
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.
Claims 1-4, 6, 9, and 18-23 are rejected under 35 U.S.C. 103 as being unpatentable over Hagen (U.S. Patent Application Publication No. US 2021/0084906 A1, published on 25 March 2021, cited by Applicant in the IDS filed on 27 September 2024).
Hagen teaches a method of reducing ethylene production in a plant via production of 1-aminocyclopropane-1-carboxylate (ACC) deaminase from bacteria in an inoculant composition (para. [0033]). Ethylene is taught to be correlated with stressors such as head and drought stress, and the inoculant composition is taught to not only protect against stressors, including flooding, drought, contaminants, and pathogens, but also to also promote plant growth (para. [0033]). Hagen teaches that their method can reduce ethylene levels, reduce ACC, and subsequently promote plant growth (para. [0033]), in addition to reducing stress flowering (para. [0054]).
The method of Hagen is taught to comprise applying an inoculant composition which comprises at least one Clostridium saccharobutylicum bacterial strain and at least one Pseudomonas spp. bacterial strain to a plant, seed, seed bed, or field comprising a plurality of plants (Abstract, para. [0011-0014], and claims 15-18). In some embodiments, the Clostridium spp. strain may be designation TPD3014, GenBank Accession No. MH189851.1, and the Pseudomonas veronii strain may be designation TPD3012, GenBank Accession No. MH190219.1, both of which are in Table 1 of the instant specification (Table 1, para. [0031]). The plants to which the composition may be applied are taught to include biomass crops, feed plants, trees, and crop plants, including tomatoes (para. [0043-0044]).
While Hagen does not explicitly teach “growing the plant element comprising the composition…into the plant”, they do teach application of their composition to a portion of a plant which is “adhered” to a plant (para. [0010] and claim 13). The portion of the plant to which the composition has been applied would grow with the plant to which it was adhered, therefore the method of Hagen is considered to teach the equivalent of “growing the plant element comprising the composition…into the plant”. Additionally, Hagen does not explicitly teach application of their composition prior to harvesting. However, Hagen does teach application of their composition prior to the appearance of a stem or flag leaf in small grain crops and that the application can “increase a quantity of stems and increase the weight of the small grain, increasing the tonnage by from 50% to as much as 100%” (para. [0060]). A stem and/or flag leaf would appear prior to harvesting and Hagen teaches that application of their composition can lead to a larger harvest, therefore Hagen is considered to teach the equivalent of application prior to harvesting.
Although “picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference...has no place in...a 102, anticipation rejection,” picking and choosing may be entirely proper in an obviousness rejection. In re Arkley, 455 F.2d 586, 587 (CCPA 1972). Addressing the issue of obviousness, the Supreme Court noted that analysis under 35 U.S.C. 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ” (KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007)). The Court further emphasized that “[a] person of ordinary skill is…a person of ordinary creativity, not an automaton” (Id. at 1742).
The only difference between Hagen and the instant claims is that Hagen does not teach the specific combination of components as claimed in a single embodiment (e.g., application of a single composition comprising Clostridium saccharobutylicum strain designation TPD3014, GenBank Accession No. MH189851.1, and Pseudomonas veronii strain designation TPD3012, GenBank Accession No. MH190219.1, to a tomato plant), or with sufficient specificity to be anticipatory. The specific combination of features claimed is disclosed within the teaching of Hagen, but such “picking and choosing” within several variables does not necessarily give rise to anticipation. Where, as here, the reference does not provide any explicit motivation to select this specific combination of variables, anticipation cannot be found. However, it must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” See MPEP § 2141.I. Consistent with this reasoning, it would have been prima facie obvious to a person having ordinary skill in the art, prior to the effective filing date of the instant application, to have selected various combinations of the various disclosed ingredients from within the teachings of Hagen, to arrive at a method such as the one being sought.
Claims 1-4, 6, 9, and 18-23 are rejected under 35 U.S.C. 103 as being unpatentable over Hagen (WIPO International Patent Publication No. WO 2019/028385 A1, published on 7 February 2019, provided by Applicant in the IDS filed on 19 November 2025, hereafter referred to as Hagen 2).
Hagen 2 teaches a microbial inoculant composition comprising one Pseudomonas spp. and one Clostridium spp. and methods of using the composition (Abstract and claims 1 and 15-21). In some embodiments, the specific Pseudomonas spp. species is Pseudomonas veronii strain designation TPD3012, GenBank Accession No. MH190219.1 and the specific Clostridium spp. species is Clostridium saccharobutylicum strain designation TPD3014, GenBank Accession No. MH189851.1 (Table 1 and pg. 4, lines 3-15). The plants to which the composition may be applied are taught to include biomass crops, feed plants, trees, and crop plants, including tomatoes (pg. 13, lines 22-27).
The method taught by Hagen 2 comprises applying the microbial inoculant composition to the tissue of a plant, a seed, a seed bed, or a field comprising a plurality of plants (pg. 2, lines 5-15 and claims 15-18). Ethylene is taught to be correlated with stressors such as head and drought stress, and the microbial inoculant composition is taught to not only protect against stressors, including flooding, drought, contaminants, and pathogens, but also to also promote plant growth and produce ACC deaminase (pg. 5, line 13 - pg. 6, line 2). Hagen 2 teaches that their method of applying the microbial composition can reduce ethylene production, ACC, and stress flowering (pg. 5, lines 13-16 and pg. 15, lines 25-27).
While Hagen 2 does not explicitly teach “growing the plant element comprising the composition…into the plant”, they do teach application of their composition to a portion of a plant which is “adhered” to a plant (pg. 2, lines 3-4 and claim 13). The portion of the plant to which the composition has been applied would grow with the plant to which it was adhered, therefore the method of Hagen 2 is considered to teach the equivalent of “growing the plant element comprising the composition…into the plant”. Additionally, Hagen 2 does not explicitly teach application of their composition prior to harvesting. However, Hagen 2 does teach application of their composition prior to the appearance of a stem or flag leaf in small grain crops and that the application can “increase a quantity of stems and increase the weight of the small grain, increasing the tonnage by from 50% to as much as 100%” (pg. 17, lines 15-20). A stem and/or flag leaf would appear prior to harvesting and Hagen 2 teaches that application of their composition can lead to a larger harvest, therefore Hagen 2 is considered to teach the equivalent of application prior to harvesting.
Although “picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference...has no place in...a 102, anticipation rejection,” picking and choosing may be entirely proper in an obviousness rejection. In re Arkley, 455 F.2d 586, 587 (CCPA 1972). Addressing the issue of obviousness, the Supreme Court noted that analysis under 35 U.S.C. 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ” (KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007)). The Court further emphasized that “[a] person of ordinary skill is…a person of ordinary creativity, not an automaton” (Id. at 1742).
The only difference between Hagen 2 and the instant claims is that Hagen 2 does not teach the specific combination of components as claimed in a single embodiment (e.g., application of a single composition comprising Clostridium saccharobutylicum strain designation TPD3014, GenBank Accession No. MH189851.1, and Pseudomonas veronii strain designation TPD3012, GenBank Accession No. MH190219.1, to a tomato plant), or with sufficient specificity to be anticipatory. The specific combination of features claimed is disclosed within the teaching of Hagen 2, but such “picking and choosing” within several variables does not necessarily give rise to anticipation. Where, as here, the reference does not provide any explicit motivation to select this specific combination of variables, anticipation cannot be found. However, it must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” See MPEP § 2141.I. Consistent with this reasoning, it would have been prima facie obvious to a person having ordinary skill in the art, prior to the effective filing date of the instant application, to have selected various combinations of the various disclosed ingredients from within the teachings of Hagen 2, to arrive at a method such as the one being sought.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 6, 9, and 18-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, and 11-14 of U.S. Patent No. 11,523,615 B2 in view of Hagen (U.S. Patent Application Publication No. US 2021/0084906 A1, published on 25 March 2021, cited by Applicant in the IDS filed on 27 September 2024).
Patent No. ‘615 recites a microbial inoculant composition comprising three microbial species, including one Pseudomonas spp. and one Clostridium spp. (claim 1). In one embodiment, the specific Clostridium spp. is Clostridium saccharobutylicum (claim 3). The microbial inoculant composition is recited as being used in a method comprising applying the composition to a tissue of a plant, surface of a seed, a seed bed, or a field comprising a plurality of plants (claims 11-14).
U.S. Patent No. 11,523,615 B2 does not recite the specific strain of Clostridium saccharobutylicum, the specific Pseudomonas spp. species or strain Pseudomonas veronii strain designation TPD3012, GenBank Accession No. MH190219.1, application of their method to a tomato plant, nor that application of their method can reduce ethylene production, ACC, and stress flowering in plants. These deficiencies are offset by the teachings of Hagen.
Hagen has been described above.
Instant claims 1-4, 6, 9, and 18-23 are obvious variations of commonly assigned patent No. ‘615 because it would have been prima facie obvious to a person of ordinary skill in the art at the time of filing to modify the method recited by patent ‘615 to use the C. saccharobutylicum strain TPD3014, GenBank Accession No. MH189851.1, the Pseudomonas strain Pseudomonas veronii strain designation TPD3012, GenBank Accession No. MH190219.1, and to apply the method to tomato plants in view of the teachings of Hagen.
One of ordinary skill would be motivated to modify the method recited in patent ‘615 to use strains TPD3014 and TPD3012 because patent ‘615 does not recite specific strains of microbes to be used and the teachings of Hagen provide missing information an ordinary artisan would require to complete their method, motivated by the teachings that these strains reduce ethylene production, ACC, and stress flowering in plants following application which the ordinary artisan would recognize as beneficial in a method that applies a microbial composition to plants. In addition, patent ‘615 does not recite a specific plant to which their method can be applied, and the teachings of Hagen motivate application of microbial compositions to crop plants including tomatoes to increase yield, which one of ordinary skill would recognize as desirable.
While patent ‘615 does not explicitly recite “growing the plant element comprising the composition…into the plant”, they do recite application of their composition to a tissue of a plant (claim 11). The portion of the plant to which the composition has been applied would grow with the plant to which it was adhered, therefore the method of ‘615 is considered to teach the equivalent of “growing the plant element comprising the composition…into the plant”. Additionally, U.S. Patent No. 11,523,615 does not explicitly recite application of their composition prior to harvesting. However, ‘615 does recite application of their composition to seeds and seed beds (claims 12-13). A seed or seed bed would exist prior to harvesting, therefore patent ‘615 is considered to recite the equivalent of application prior to harvesting. Finally, patent ‘615 does not recite their method to reduce ethylene production, ACC, and stress flowering in plants. However, the patent does recite the identical method step of applying the microbial composition to a plant and the teachings of Hagen render obvious the selection of the microbial strains elected above as well as teaching that such a composition reduces ethylene production, ACC, and stress flowering in plants. Therefore, the application of the methods to reduce ethylene production, ACC, and stress flowering in plants recited in instant claims 1-3 is considered to be an obvious variation of the methods recited in patent ‘615.
Claims 1-4, 6, 9, and 18-23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 11, and 15-18 of U.S. Patent No. 11,980,183 B2 in view of Hagen (U.S. Patent Application Publication No. US 2021/0084906 A1, published on 25 March 2021, cited by Applicant in the IDS filed on 27 September 2024).
U.S. Patent No. 11,980,183 B2 recites a microbial composition comprising multiple microbial species including a Pseudomonas spp. and a Clostridium spp. (claim 1). In one embodiment, the specific Clostridium spp. is Clostridium saccharobutylicum (claim 3). Patent ‘183 also recites a plant comprising the microbial composition “adhered to at least a portion of the plant” (claim 11). The microbial inoculant composition is recited as being used in a method comprising applying the composition to a tissue of a plant, surface of a seed, a seed bed, or a field comprising a plurality of plants (claims 15-18).
U.S. Patent No. 11,980,183 B2 does not recite the specific strain of Clostridium saccharobutylicum, the specific Pseudomonas spp. species or strain Pseudomonas veronii strain designation TPD3012, GenBank Accession No. MH190219.1, application of their method to a tomato plant, nor that application of their method can reduce ethylene production, ACC, and stress flowering in plants. These deficiencies are offset by the teachings of Hagen.
Hagen has been described above.
Instant claims 1-4, 6, 9, and 18-23 are obvious variations of commonly assigned patent No. ‘183 because it would have been prima facie obvious to a person of ordinary skill in the art at the time of filing to modify the method recited by patent ‘183 to use the C. saccharobutylicum strain TPD3014, GenBank Accession No. MH189851.1, the Pseudomonas strain Pseudomonas veronii strain designation TPD3012, GenBank Accession No. MH190219.1, and to apply the method to tomato plants in view of the teachings of Hagen.
One of ordinary skill would be motivated to modify the method recited in patent ‘183 to use strains TPD3014 and TPD3012 because patent ‘183 does not recite specific strains of microbes to be used and the teachings of Hagen provide missing information an ordinary artisan would require to complete their method, motivated by the teachings that these strains reduce ethylene production, ACC, and stress flowering in plants following application which the ordinary artisan would recognize as beneficial in a method that applies a microbial composition to plants. In addition, patent ‘183 does not recite a specific plant to which their method can be applied, and the teachings of Hagen motivate application of microbial compositions to crop plants including tomatoes to increase yield, which one of ordinary skill would recognize as desirable.
While patent ‘183 does not explicitly recite “growing the plant element comprising the composition…into the plant”, they do recite application of their composition to a tissue of a plant (claim 15). The portion of the plant to which the composition has been applied would grow with the plant to which it was adhered, therefore the method of ‘183 is considered to teach the equivalent of “growing the plant element comprising the composition…into the plant”. Additionally, U.S. Patent No. 11,980,183 does not explicitly recite application of their composition prior to harvesting. However, ‘183 does recite application of their composition to seeds and seed beds (claims 16-17). A seed or seed bed would exist prior to harvesting, therefore patent ‘183 is considered to recite the equivalent of application prior to harvesting. Finally, patent ‘183 does not recite their method to reduce ethylene production, ACC, and stress flowering in plants. However, the patent does recite the identical method step of applying the microbial composition to a plant and the teachings of Hagen render obvious the selection of the microbial strains elected above as well as teaching that such a composition reduces ethylene production, ACC, and stress flowering in plants. Therefore, the application of the methods to reduce ethylene production, ACC, and stress flowering in plants recited in instant claims 1-3 is considered to be an obvious variation of the methods recited in patent ‘183.
Claims 1-4, 6, 9, and 18-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2 and 12 of copending Application No. 18/703,142 in view of Hagen (U.S. Patent Application Publication No. US 2021/0084906 A1, published on 25 March 2021, cited by Applicant in the IDS filed on 27 September 2024).
This is a provisional nonstatutory double patenting rejection.
Commonly assigned copending Application No. 18/703,142 recites a method of improving a trait of agronomic importance in a plant or increasing the amount of atmospheric derived nitrogen in a plant via contacting a plant element of the plant with a composition comprising two bacterial strains chosen from Tables 1 and 2 and “growing the plant element comprising the composition” into the plant (claims 1-2 and 12). Table 1 recites both Clostridium saccharobutylicum strain designation TPD3014, GenBank Accession No. MH189851.1, and Pseudomonas veronii strain designation TPD3012, GenBank Accession No. MH190219.1.
Commonly assigned copending Application No. 18/703,142 does not recite application of their method to a tomato plant, prior to harvesting, or to reduce ethylene production, ACC, and stress flowering in plants. These deficiencies are offset by the teachings of Hagen.
Hagen has been described above.
Instant claims 1-4, 6, 9, and 18-23 are obvious variations of commonly assigned Application No. ‘142 because it would have been prima facie obvious to a person of ordinary skill in the art at the time of filing to apply the method recited by Application ‘142 to a tomato plant prior to harvest in view of the teachings of Hagen.
One of ordinary skill would be motivated to apply the method recited in Application ‘142 to tomato plants because ‘142 does not recite a specific plant to which their method can be applied, and the teachings of Hagen motivate application of microbial compositions to crop plants including tomatoes to increase yield, which one of ordinary skill would recognize as desirable. In addition, the method recited in ‘142 does not specify the time during a plant growth cycle when their method should be applied. In view of the teachings of Hagen, a person of ordinary skill would find it obvious to apply the method prior to harvest because Hagen teaches that the application can increase eventual yield, which the ordinary artisan would understand must occur prior to harvesting.
Application ‘142 does not recite their method to reduce ethylene production, ACC, and stress flowering in plants. However, the Application does recite the identical method steps of applying the microbial composition to a plant and growing plant parts into each other. The teachings of Hagen demonstrate that application of such a composition reduces ethylene production, ACC, and stress flowering in plants. Therefore, the application of the methods to reduce ethylene production, ACC, and stress flowering in plants recited in instant claims 1-3 is considered to be an obvious variation of the methods recited in Application ‘142.
Claims 1-4, 6, 9, and 18-23 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 38-42 of copending Application No. 18/703,170 in view of Hagen (U.S. Patent Application Publication No. US 2021/0084906 A1, published on 25 March 2021, cited by Applicant in the IDS filed on 27 September 2024).
This is a provisional nonstatutory double patenting rejection.
Commonly assigned copending Application No. 18/703,170 recites methods of increasing the amount of hydrogen in the rumen of a ruminant animal, increasing hydrogen emissions in a landfill, topsoil, silage pit, or waste water, and increasing hydrogen emissions in a fermenter all comprising the step of applying a composition comprising two bacterial strains, one from the family Clostridium spp. and one from the family Pseudomonas spp., chosen from Tables 1 and 2 (claims 38-40). Claim 41 further limits the Clostridium microbe to be C. saccharobutylicum or C. uliginosum and claim 42 further limits the Pseudomonas microbe to be, in one embodiment, P. veronii. Table 1 recites both Clostridium saccharobutylicum strain designation TPD3014, GenBank Accession No. MH189851.1, and Pseudomonas veronii strain designation TPD3012, GenBank Accession No. MH190219.1.
Commonly assigned copending Application No. 18/703,170 does not recite application of their method to a tomato plant, prior to harvesting, or to reduce ethylene production, ACC, and stress flowering in plants. These deficiencies are offset by the teachings of Hagen.
Hagen has been described above.
Instant claims 1-4, 6, 9, and 18-23 are obvious variations of commonly assigned Application No. ‘170 because it would have been prima facie obvious to a person of ordinary skill in the art at the time of filing to apply the method recited by Application ‘170 to a tomato plant prior to harvest in view of the teachings of Hagen.
One of ordinary skill would be motivated to apply the method recited in Application ‘170 to tomato plants Hagen teaches that application of an identical microbial composition to crop plants can result in reduced ethylene production, ACC, and stress flowering in plants, which the ordinary artisan would recognize as beneficial. In addition, Hagen teaches that application of the identical composition to crop plants, including tomatoes, can increase yield, which one of ordinary skill would recognize as desirable. Further, in view of the teachings of Hagen a person of ordinary skill would be motivated to apply method recited in ‘170 prior to harvest because Hagen teaches that the application can increase eventual yield, which the ordinary artisan would understand must occur prior to harvesting.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Sean J. Steinke, Ph.D., whose telephone number is (571) 272-3396. The examiner can normally be reached Mon. - Fri., 09:00 - 17:00 ET.
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/S.J.S./
Examiner, Art Unit 1619
/TIGABU KASSA/Primary Examiner, Art Unit 1619
