DETAILED ACTION
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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on September 25, 2024 and July 18, 2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
The information disclosure statement filed May 21, 2026 fails to comply with the provisions of 37 CFR 1.98(a)(4) because it lacks the appropriate size fee assertion. It has been placed in the application file, but the information referred to therein has not been considered as to the merits.
Claim Rejections - 35 USC § 103
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.
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.
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 Kellar et al. (WO2017/044545, IDS 09.25.2024, FPD #11, cited by US 10820594, IDS 05.21.2026, USP #11).
Kellar teaches compositions comprising dried bacterial cells or spores (col.5 line 45 – 50, col.13 - 14) and paraffin oil (col.23, line 1 – 5, 20 – 25, e.g., SUN AG™, SUNSPRAY™), wherein the paraffin oil may be included from 0.1 – 30% (col.23, line 30 – 35). The compositions are intended for agricultural use (col.1-2) and are therefore agrochemical compositions. Although Kellar does not teach the claimed amount of paraffin oil, the carrier components are disclosed as protectants that may be included in any suitable amount or concentration (col.23, line 50 – 60). Thus, at the time the claims were filed, it would have been obvious to one of ordinary skill in the art to optimize the amount of carriers, or paraffin oil, in the compositions of Kellar as a matter of routine experimentation and as directed by Kellar, and with a reasonable expectation for successfully obtaining an effective, agriculturally beneficial composition.
Regarding the claimed instructions for applying to a plant and/or plant growth medium, where the printed matter and product do not depend upon each other, no functional relationship exists. For example, in a kit containing a set of chemicals and a printed set of instructions for using the chemicals, the instructions are not related to that particular set of chemicals. In re Ngai, 367 F.3d at 1339, 70 USPQ2d at 1864. Moreover, including instructions for applying the compositions does not materially change the composition itself (MPEP 2111.05). Notwithstanding, Kellar teaches the composition is applied to plants or plant propagation materials (or plant growth media) (col.1), thereby providing instructions for applying to plants or plant growth media.
Thus, the invention as a whole is prima facie obvious over the references, especially in the absence of evidence to the contrary.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Kellar et al. (WO 2017/044473, IDS 09.25.2024, FPD #10, cited by US 11472981).
Kellar teaches compositions comprising dried bacterial cells or spores (col.6 line 5 – 15) and SUNSPRAY™ (paraffin oil) (example 16, Table 15). The compositions are intended for agricultural use (col.5 - 7) and are therefore agrochemical compositions. Although Kellar does not teach the claimed amount of paraffin oil, mineral oil (e.g., paraffin oil) is disclosed an acceptable carrier that may be included in any acceptable amount/concentration (col.26 line25 – 35, col. 27 line 5 - 10). Thus, at the time the claims were filed, it would have been obvious to one of ordinary skill in the art to optimize the amount of carriers, or paraffin oil, in the compositions of Kellar as a matter of routine experimentation and as directed by Kellar, and with a reasonable expectation for successfully obtaining an effective, agriculturally beneficial composition.
Regarding the claimed instructions for applying to a plant and/or plant growth medium, where the printed matter and product do not depend upon each other, no functional relationship exists. For example, in a kit containing a set of chemicals and a printed set of instructions for using the chemicals, the instructions are not related to that particular set of chemicals. In re Ngai, 367 F.3d at 1339, 70 USPQ2d at 1864. Moreover, including instructions for applying the compositions does not materially change the composition itself (MPEP 2111.05). Notwithstanding, Kellar teaches the composition is applied to plants or plant propagation materials (or plant growth media) (col.1 - 2), thereby providing instructions for applying to plants or plant growth media.
Thus, the invention as a whole is prima facie obvious over the references, especially in the absence of evidence to the contrary.
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.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7 – 8 and 18 of U.S. Patent No. 12252688. Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims are drawn to a dried bacterial cells and/or spores; and one or more paraffin oils and/or one or more paraffin waxes; wherein the one or more paraffin oils and/or one or more paraffin waxes comprising about 75 to about 95% of said agrochemical inoculant composition, by weight.
Regarding the claimed instructions for applying to a plant and/or plant growth medium, where the printed matter and product do not depend upon each other, no functional relationship exists. For example, in a kit containing a set of chemicals and a printed set of instructions for using the chemicals, the instructions are not related to that particular set of chemicals. In re Ngai, 367 F.3d at 1339, 70 USPQ2d at 1864. Moreover, including instructions for applying the compositions does not materially change the composition itself (MPEP 2111.05). Notwithstanding, the patent claims the composition is applied to plants or plant propagation materials (claims 7 – 8), thereby providing instructions for applying to plants or plant growth media.
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUTH A DAVIS whose telephone number is (571)272-0915. The examiner can normally be reached Monday - Friday (8am - 4pm).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Fereydoun Sajjadi can be reached at 571-272-3311. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUTH A DAVIS/ Primary Examiner, Art Unit 1699
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