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 .
The amendment and response filed on May 27, 2026 are received.
Claims 11-84 and 92-98 and 10-135 were previously canceled by Applicant.
Claim 2 is canceled by Applicant.
Claims 1, 3-10, 85-89 and 90, 91 and 99 are pending in this application, claims 90, 91 and 99 are withdrawn from further consideration, and claims 1, 3-10 and 85-89 are being examined (See Restriction/Election below).
Restriction/Election:
Applicant’s election of Group I, claims 1, 3-10 and 85-86, in the reply filed on 05/27/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 90, 91 and 99 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 05/27/2026.
Regarding the request for rejoinder of claim 99, it should be noted that rejoinder will be considered when claims are in condition for allowance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 88 and 89 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
The invention appears to employ a specific strains Talaromyces flavus SAY-Y-94-01 and Streptomyces lydicus WYEC 108.
It is not clear if the written description is sufficiently repeatable to avoid the need for a deposit.
Further it is unclear if the starting materials were readily available to the public at the time of invention.
It appears that a deposit was made in this application as filed as noted in applicant’s specification (p. 5 last paragraph). However, it is not clear if the deposit meets all of the criteria set forth in 37 CFR 1.801-1.809. Applicant or applicant's representative may provide assurance of compliance with the requirements of 35 U.S.C § 112, first paragraph, in the following manner.
SUGGESTION FOR DEPOSIT OF BIOLOGICAL MATERIAL
A declaration by applicant, assignee, or applicant's agent identifying a deposit of biological material and averring the following may be sufficient to overcome an objection and rejection based on a lack of availability of biological material.
1. Identifies declarant.
2. States that a deposit of the material has been made in a depository affording permanence of the deposit and ready accessibility thereto by the public if a patent is granted. The depository is to be identified by name and address.
3. States that the deposited material has been accorded a specific (recited) accession number.
4. States that all restriction on the availability to the public of the material so deposited will be irrevocably removed upon the granting of a patent.
5. States that the material has been deposited under conditions that access to the material will be available during the pendency of the patent application to one determined by the Commissioner to be entitled thereto under 37 CFR 1.14 and 35 U.S.C § 122.
6. States that the deposited material will be maintained with all the care necessary to keep it viable and uncontaminated for a period of at least five years after the most recent request for the furnishing of a sample of the deposited microorganism, and in any case, for a period of at least thirty (30) years after the date of deposit for the enforceable life of the patent, whichever period is longer.
7. That he/she declares further that all statements made therein of his/her own knowledge are true and that all statements made on information and belief are believed to be true, and further that these statements were made with knowledge that willful false statements and the like so made are punishable by fine or imprisonment, or both, under section 1001 of Title 18 of the United States Code and that such willful false statements may jeopardize the validity of the instant patent application or any patent issuing thereon.
Alternatively, it may be averred that deposited material has been accepted for deposit under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the purpose of Patent Procedure (e.g. see 961 OG 21, 1977) and that all restrictions on the availability to the public of the material so deposited will be irrevocably removed upon the granting of a patent.
Additionally, the deposit must be referred to in the body of the specification and be identified by deposit (accession) number, date of deposit, name and address of the depository and the complete taxonomic description.
Copies of deposit receipts are required.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 3-10 and 85-88 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Viaene et al. (FEMS Microbiology Ecology, Volume 92, Issue 8, August 2016, fiw119, p. 1-10).
Regarding claim 1, Viaene et al. disclose a composition, comprising: at least one microbial signaler; and at least one target microbe, wherein the at least one microbial signaler is capable of enhancing a plant growth-promoting function of the at least one target microbe (soil containing plant growth promoting Streptomyces sp. and have disease suppressive effect against pathogens including, for example, Rhizoctonia solani) (See for example, p. 5 left-hand column 1st paragraph).
Regarding claim 3, Viaene et al. disclose the at least one microbial signaler belongs to the genus Streptomyces, Fusarium, or Bacillus (Streptomyces sp.) (See for example, p. 5 left-hand column 1st paragraph).
Regarding claim 4, Viaene et al. disclose the at least one microbial signaler belongs to the genus Streptomyces (Streptomyces sp.) (See for example, p. 5 left-hand column 1st paragraph).
Regarding claim 5, Viaene et al. disclose the plant growth-promoting function comprises: (a) plant pathogen-inhibiting function, (b) zinc solubilizing function, (c) phosphate solubilizing function, (d) production of an antibiotic, (e) nitrogen fixing function, (f) a function of improving a plant's nutrient acquisition, (f) production of plant growth hormones, or (g) any combination thereof (plant pathogen-inhibiting function) (See for example, page 5 left-hand column 1st paragraph and right-hand column 2nd paragraph).
Regarding claims 6-9, although the composition taught by Viaene et al. do not explicitly disclose the claimed properties of claims 6-9, however, because the claimed composition disclosed by Viaene et al. is the same as the claimed composition, therefore the claimed properties capable of enhancing the plant pathogen-inhibiting function of the target microbe by at least about 5%, capable of enhancing the zinc solubilizing function of the target microbe by at least about 5%, capable of enhancing the phosphate solubilizing function of the target microbe by at least about 5%, and capable of enhancing the plant growth-promoting function of the at least one target microbe under low nutrient conditions, not explicitly taught are inherent to the composition taught by Viaene et al.
Regarding claim 10, Viaene et al. disclose the at least one microbial signaler is Streptomyces avidinii, Streptomyces colombiensis, Streptomyces lavendulae, Streptomyces roseochromogenus, Streptomyces spororaveus, Streptomyces sporoverrucosus, Streptomyces venezuelae, Streptomyces xanthophaeus, Streptomyces angustmyceticus, Streptomyces hygroscopicus, Streptomyces libani, Streptomyces lydicus, Streptomyces nigrescens, Streptomyces platensis, Streptomyces rimosus, Streptomyces tubercidicus, Streptomyces bungoensis, Streptomyces cyslabdanicus, Streptomyces galbus, Streptomyces kagawaensis, Streptomyces lasaliensis, Streptomyces lasalocidi, Streptomyces longwoodensis, Streptomyces spinichromogenes, Streptomyces cirratus, Streptomyces nojiriensis, Streptomyces verne, Streptomyces vinaceus, Streptomyces virginiae, Streptomyces catenulae, Streptomyces cinereus, Streptomyces griseocarneus, Streptomyces sioyaensis, Streptomyces subrutilus, Streptomyces atrolaccus, Streptomyces auratus, Streptomyces fagopyri, Streptomyces kaempferi, Streptomyces mirabilis, Streptomyces olivochromogenes, Streptomyces chattanoogensis, Streptomyces flaveus, Streptomyces goshikiensis, Streptomyces cinnamonensis, Streptomyces senoensis, Streptomyces echinatus, Streptomyces filipinensis, Streptomyces gulbargensis, Streptomyces myxogenes, Streptomyces novaecaesareae, Streptomyces spectabilis, Streptomyces tanashiensis, Streptomyces ginsengisoli, Streptomyces graminisoli, Streptomyces lucensis, Streptomyces yaanensis, Streptomyces caniferus, Streptomyces decoyicus, Streptomyces glebosus, Streptomyces ossamyceticus, Streptomyces badius, Streptomyces cyaneofuscatus, Streptomyces flavogriseus, Streptomyces griseus, Streptomyces mediolani, Streptomyces praecox, Streptomyces pratensis, Streptomyces omiyaensis, Streptomyces aquilus, Streptomyces caeruleatus, Streptomyces griseochromogenes, Streptomyces pseudovenezuelae, Streptomyces viridochromogenes, Streptomyces argenteolus, Streptomyces chrestomyceticus, Streptomyces coelicolor, Streptomyces microsporus, Streptomyces aureus, Streptomyces lutosisoli, Streptomyces minoensis, Streptomyces rhizosphaerihabitans, Streptomyces griseoruber, Streptomyces scabiei, Streptomyces achromogenes, Streptomyces canarius, Streptomyces capoamus, Streptomyces cellostaticus, or Streptomyces katrae (for example, Streptomyces platensis) (see for example, p. 5 right-hand column 2nd paragraph).
Regarding claim 85, Viaene et al. disclose the at least one target microbe belongs to any one of the following genera: Talaromyces, Trichoderma, Bacillus, Streptomyces, Azospirillum, Pseudomonas, Comamonas, Citrobacter, Enterobacter, Bradyrhizobium, Rhizobium, Rhizophagus, and Glomus (for example, Streptomyces scabies) (See for example, p. 2 left-hand column 2nd paragraph).
Regarding claim 86, Viaene et al. disclose the at least one target microbe belongs to any one of the following genera: Talaromyces, Streptomyces, Bacillus, Trichoderma, Pseudomonas, Comamonas, or Enterobacter (for example, Streptomyces scabies) (See for example, p. 2 left-hand column 2nd paragraph).
Regarding claim 87, Viaene et al. disclose the at least one target microbe is Talaromyces flavus, Trichoderma harzianum, Bacillus amyloliquefaciens, Streptomyces sp., Bacillus subtilis, Bacillus amyloliquefaciens, Streptomyces lydicus, Pseudomonas chlororaphis, Bacillus subtilis, Azospirillum brasilense, Trichoderma asperellum, Trichoderma gamsii, Pseudomonas putida, Comamonas testosterone, Citrobacter freundii, Enterobacter cloacae, Streptomyces spp., Trichoderma viride, Bacillus megaterium, Azospirillum spp., Bradyrhizobium japonicum, Rhizobium leguminosarum biovar viciae, Bradyrhizobium spp., Rhizobium leguminosarum, Azospirillum amazonense, Azospirillum lipoferum, Glomus intraradices, Rhizophagus intraradices, Glomus mosseaem, or any combination thereof (for example, Streptomyces lydicus) (See for example, p. 3 right-hand column 2nd paragraph below Table 1.).
Regarding claim 89, Viaene et al. disclose target microbe Streptomyces lydicus WYEC 108 (Streptomyces lydicus WYEC 108) (See for example, p. 3 right-hand column 2nd paragraph below Table 1).
Viaene et al. therefore anticipated the claimed composition.
Claim Rejection - 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.
Claims 1, 3-10 and 85-89 are rejected under 35 U.S.C. 103 as being unpatentable over Viaene et al. (FEMS Microbiology Ecology, Volume 92, Issue 8, August 2016, fiw119, p. 1-10) and further in view of Marian et al. (Microbiological Research, Volume 234, 2020, p. 1-9).
Regarding claim 1, Viaene et al. teach a composition, comprising: at least one microbial signaler; and at least one target microbe, wherein the at least one microbial signaler is capable of enhancing a plant growth-promoting function of the at least one target microbe (soil containing plant growth promoting Streptomyces sp. and have disease suppressive effect against pathogens including, for example, Rhizoctonia solani) (See for example, p. 5 left-hand column 1st paragraph).
Regarding claim 3, Viaene et al. teach the at least one microbial signaler belongs to the genus Streptomyces, Fusarium, or Bacillus (Streptomyces sp.) (See for example, p. 5 left-hand column 1st paragraph).
Regarding claim 4, Viaene et al. teach the at least one microbial signaler belongs to the genus Streptomyces (Streptomyces sp.) (See for example, p. 5 left-hand column 1st paragraph).
Regarding claim 5, Viaene et al. teach the plant growth-promoting function comprises: (a) plant pathogen-inhibiting function, (b) zinc solubilizing function, (c) phosphate solubilizing function, (d) production of an antibiotic, (e) nitrogen fixing function, (f) a function of improving a plant's nutrient acquisition, (f) production of plant growth hormones, or (g) any combination thereof (plant pathogen-inhibiting function) (See for example, page 5 left-hand column 1st paragraph and right-hand column 2nd paragraph).
Regarding claims 6-9, although the composition taught by Viaene et al. do not explicitly teach the claimed properties of claims 6-9, however, because the claimed composition taught by Viaene et al. is the same as the claimed composition, therefore the claimed properties capable of enhancing the plant pathogen-inhibiting function of the target microbe by at least about 5%, capable of enhancing the zinc solubilizing function of the target microbe by at least about 5%, capable of enhancing the phosphate solubilizing function of the target microbe by at least about 5%, and capable of enhancing the plant growth-promoting function of the at least one target microbe under low nutrient conditions, not explicitly taught are inherent to the composition taught by Viaene et al.
Regarding claim 10, Viaene et al. teach the at least one microbial signaler is Streptomyces avidinii, Streptomyces colombiensis, Streptomyces lavendulae, Streptomyces roseochromogenus, Streptomyces spororaveus, Streptomyces sporoverrucosus, Streptomyces venezuelae, Streptomyces xanthophaeus, Streptomyces angustmyceticus, Streptomyces hygroscopicus, Streptomyces libani, Streptomyces lydicus, Streptomyces nigrescens, Streptomyces platensis, Streptomyces rimosus, Streptomyces tubercidicus, Streptomyces bungoensis, Streptomyces cyslabdanicus, Streptomyces galbus, Streptomyces kagawaensis, Streptomyces lasaliensis, Streptomyces lasalocidi, Streptomyces longwoodensis, Streptomyces spinichromogenes, Streptomyces cirratus, Streptomyces nojiriensis, Streptomyces verne, Streptomyces vinaceus, Streptomyces virginiae, Streptomyces catenulae, Streptomyces cinereus, Streptomyces griseocarneus, Streptomyces sioyaensis, Streptomyces subrutilus, Streptomyces atrolaccus, Streptomyces auratus, Streptomyces fagopyri, Streptomyces kaempferi, Streptomyces mirabilis, Streptomyces olivochromogenes, Streptomyces chattanoogensis, Streptomyces flaveus, Streptomyces goshikiensis, Streptomyces cinnamonensis, Streptomyces senoensis, Streptomyces echinatus, Streptomyces filipinensis, Streptomyces gulbargensis, Streptomyces myxogenes, Streptomyces novaecaesareae, Streptomyces spectabilis, Streptomyces tanashiensis, Streptomyces ginsengisoli, Streptomyces graminisoli, Streptomyces lucensis, Streptomyces yaanensis, Streptomyces caniferus, Streptomyces decoyicus, Streptomyces glebosus, Streptomyces ossamyceticus, Streptomyces badius, Streptomyces cyaneofuscatus, Streptomyces flavogriseus, Streptomyces griseus, Streptomyces mediolani, Streptomyces praecox, Streptomyces pratensis, Streptomyces omiyaensis, Streptomyces aquilus, Streptomyces caeruleatus, Streptomyces griseochromogenes, Streptomyces pseudovenezuelae, Streptomyces viridochromogenes, Streptomyces argenteolus, Streptomyces chrestomyceticus, Streptomyces coelicolor, Streptomyces microsporus, Streptomyces aureus, Streptomyces lutosisoli, Streptomyces minoensis, Streptomyces rhizosphaerihabitans, Streptomyces griseoruber, Streptomyces scabiei, Streptomyces achromogenes, Streptomyces canarius, Streptomyces capoamus, Streptomyces cellostaticus, or Streptomyces katrae (for example, Streptomyces platensis) (see for example, p. 5 right-hand column 2nd paragraph).
Regarding claim 85, Viaene et al. teach the at least one target microbe belongs to any one of the following genera: Talaromyces, Trichoderma, Bacillus, Streptomyces, Azospirillum, Pseudomonas, Comamonas, Citrobacter, Enterobacter, Bradyrhizobium, Rhizobium, Rhizophagus, and Glomus (for example, Streptomyces scabies) (See for example, p. 2 left-hand column 2nd paragraph).
Regarding claim 86, Viaene et al. teach the at least one target microbe belongs to any one of the following genera: Talaromyces, Streptomyces, Bacillus, Trichoderma, Pseudomonas, Comamonas, or Enterobacter (for example, Streptomyces scabies) (See for example, p. 2 left-hand column 2nd paragraph).
Regarding claim 87, Viaene et al. teach the at least one target microbe is Talaromyces flavus, Trichoderma harzianum, Bacillus amyloliquefaciens, Streptomyces sp., Bacillus subtilis, Bacillus amyloliquefaciens, Streptomyces lydicus, Pseudomonas chlororaphis, Bacillus subtilis, Azospirillum brasilense, Trichoderma asperellum, Trichoderma gamsii, Pseudomonas putida, Comamonas testosterone, Citrobacter freundii, Enterobacter cloacae, Streptomyces spp., Trichoderma viride, Bacillus megaterium, Azospirillum spp., Bradyrhizobium japonicum, Rhizobium leguminosarum biovar viciae, Bradyrhizobium spp., Rhizobium leguminosarum, Azospirillum amazonense, Azospirillum lipoferum, Glomus intraradices, Rhizophagus intraradices, Glomus mosseaem, or any combination thereof (for example, Streptomyces lydicus) (See for example, p. 3 right-hand column 2nd paragraph below Table 1.).
Regarding claim 89, Viaene et al. teach target microbe Streptomyces lydicus WYEC 108 (Streptomyces lydicus WYEC 108) (See for example, p. 3 right-hand column 2nd paragraph below Table 1).
Viaene et al. do not teach target microbe is Talaromyces flavus SAY-Y-94-01 (claim 88).
However, before the effective filing dated of the invention Marian et al. teach a composition comprising target microbe Talaromyces flavus SAY-Y-94-01 (microbial formulation containing Talaromyces flavus SAY-Y-94-01 for biological control of strawberry anthracnose) (See for example, p. 2 left-hand column 3rd paragraph).
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filling date of the invention to include the target microbe Talaromyces flavus SAY-Y-94-01 taught by the prior art in the composition according to the teachings of Viaene et al. with a reasonable expectation of success in providing an improved composition comprising: at least one microbial signaler; and at least one target microbe, wherein the at least one microbial signaler is capable of enhancing a plant growth-promoting function of the at least one target microbe, and target microbe Talaromyces flavus SAY-Y-94-01. The motivation, for example, would be because Marian et al. teach Talaromyces flavus SAY-Y-94-01 as a biological control agent.
Conclusion(s):
No claim(s) is allowed at this time.
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/KADE ARIANI/Primary Examiner, Art Unit 1651
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