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 .
Election/Restrictions
Applicant's election without traverse of Group I, Claims 1-7 in the reply filed on 06/17/2026 is acknowledged.
Claims 8-9 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 06/17/2026.
Status of Claims
Claims 8-9 are withdrawn for being drawn to nonelected group.
Claims 1-7 are pending and being examined on the merits herein.
Priority
The instant application 18745813 filed on 06/17/2024. Acknowledgment is made of applicant's claim for foreign priority based on an application filed in China on 01/08/2024. It is noted, however, that applicant has not filed a certified copy of the 20241002923 application as required by 37 CFR 1.55.
Objection to Abstract
The abstract of the disclosure is objected to because it contains the phrase “the … disclosure belongs to”.
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Objection to Specification
The disclosure is objected to because of the following informalities:
The use of the terms, W610, Multiwet 8269, SXC, SP-DF2225, NNO, U3A, ZC457, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as TM, SM, or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Appropriate correction is required.
Claim Objections
Claims 1-2 are objected to because of the following informalities:
Claims 1 and 2 recites ingredient names, e.g., W610, Multiwet 8269, SXC, SP-DF2225, NNO, U3A, without full definitions of ingredients/compounds.
Appropriate correction is required.
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 1-7 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 and 7 each recites “bacterial cells collected after Bacillus velezensis is fermented and centrifuged, …”. It is unclear whether Bacillus velezensis constitutes all the bacterial cells, or there are other bacterial cells in addition to the Bacillus velezensis after being fermented and centrifuged. This renders the claim indefinite.
Claims 1-3 each contains more than one of the following trademark/trade names W610, Multiwet 8269, SXC, D863, SP-DF2225, NNO or U3A. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe, according to instant specification, organic polymer calcium dodecyl benzene sulfonate (corresponding to W610), sodium dioctyl sulfosuccinate (corresponding to Multiwet 8269), glycine benzyl ester sodium p-toluene sulfonate (corresponding to SXC), calcium lignosulfonate (corresponding to D863), naphthalenesulfonate (corresponding to SP-DF2225 or NNO), sodium lignosulfonate (corresponding to U3A), and, accordingly, the identification/description is indefinite.
Claims 1, 3-4 and 6-7 each recites an amount in percentage format, while the calculation basis of the percentage is missing. It is unclear whether the percentage is based upon the total weight of the dry suspending agent, or something else. The claims render indefinite.
Claims 1, 3-4 and 6 each recites the phrase “preferably”. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 1, 3-4 and 6 recites/implies the broad recitation of any possible percentage of the agent or multiple alternatives of an agent, and the claim also recites “preferably” a specific percentage or one specific agent out of the multiple alternatives, which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. The metes and bounds of the claims are unclear.
Claim 7 recites “wherein a mass percentage of … is 3-10%”. The indefinite article “a” without specifying the mass percentage as the particular one renders the claim indefinite, because it is unclear whether such a percentage range represents merely an example or is required as the percentage range. If it is meant to be the required percentage, it is suggested to rephrase as “wherein the mass percentage of … is 3-10%”.
Claims 2 and 5 are rejected accordingly because they are directly depending on claim 1, and they do not clarify the issue in claim 1 as addressed above.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 2 and 6-7 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 2 recites “according to claim 1, wherein the wetting agent is one or more of W610, Multiwet 8269, and SXC”. Because claim 1, which claim 2 depends upon, defines “the wetting agent is selected from W610, Multiwet 829, and SXC”, implying as one component selected from the three alternatives, while claim 2 broadens the wetting agent to “one or more”, failing to further limit the subject matter.
Claims 6-7 are rejected accordingly because they are dependent claims of claim 2 and they do not clarify the issue as addressed above in claim 2.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Interpretation
The claims are interpreted as following.
The limitation led by “preferably” in claims is interpreted as preferred and exemplified feature, which is NOT required feature. Accordingly the mass percentages of ingredients in claims 1, 3-4 and 6 can be in any ranges other than the specified preferable ranges. Similarly, the protective agent can be any of the listed alternatives even though sodium fluorescein is preferred.
All percentage values are interpreted as calculation is based upon total weight of the dry suspending agent.
The product terms in claims are interpreted as following based on available information in instant specification:
W610: calcium dodecyl benzene sulfonate
SXC: glycine benzyl ester sodium p-toluene sulfonate
Multiwet 8269: sodium dioctyl sulfosuccinate
D863: calcium lignosulfonate
SP-DF2225 or NNO: naphthalenesulfonate
U3A: sodium lignosulfonate
Claim 1 is interpreted as “A Bacillus velezensis dry suspending agent, comprising: Bacillus velezensis bacterial cells collected after being fermented and centrifuged, a wetting agent, a dispersing agent, a disintegrating agent, and a carrier, wherein the wetting agent is at least one selected from sulfonate and succinate.”
Claim 2 is interpreted having the same meaning as “the wetting agent is at least one selected from sulfonate and succinate.”
Claim 3 is interpreted as “… according to claim 1, wherein the dispersing agent is calcium lignosulfonate, naphthalenesulfonate, or sodium lignosulfonate”.
Claim 7 is interpreted as “… according to any one of claims 1 to 5, wherein the mass percentage of the collected Bacillus velezensis bacterial cells after being fermented and centrifuged is 3-10% based on the total weight of the dry suspending agent”.
Claim Rejections - 35 USC § 102
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.
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.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-7 are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Akum et al. (WO2022047396, filing date 08/31/2021 or earlier; publication date, 03/03/2022; PTO-892).
Akum throughout the reference teaches compositions and methods using live microbes or microbial products, e.g., Bacillus velezensis (e.g., [0019]; [0174]; [0211]; [0213-0214]; [0456-0457]; [0479]; [0511] Table 5), for biocontrol of pests and diseases for crop plants (e.g., [0008]).
For Claims 1-3, Akum teaches the formulation as wettable powders, suspension concentrates, and water-dispersible granule formulations (e.g., [0230]) (corresponding to dry suspending agent in instant claim 1) can include live microorganisms of genus Bacillus (e.g., Claims 2-3), e.g., Bacillus velezensis (e.g., [0019]; [0174]; [0211]; [0213-0214]; [0456-0457]; [0479]; [0511] Table 5) which can be concentrated by filtering or centrifugation from the growth medium (e.g., [0120]). The formulation can include components selected from the group consisting of the microorganism as a biocontrol agent, a wetting agent, a dispersing agent, an anti-settling agent, a biopesticide, a biostimulant, a preservative, a stabilizer, an organic solvent, a fertilizer, other active biocides, etc. (e.g., Claims 11-12; Claims 41-42; [0025]), wetters, penetration aids, spreading agents or spreaders [0222], carriers [0223], surface active agents, e.g., calcium dodecyl benzene sulfonate, alkyl naphthalene-sulfonate salts, such as sodium dibutyl-naphthalenesulfonate, dialkyl esters of sulfosuccinate salts (e.g., [0229]), wetting agents including sodium dioctyl sulphosuccinate [0230] (corresponding to sodium dioctyl sulfosuccinate as interpreted).
Since the ingredient functions may overlap with one another, for instance, spreading agents, anti-settling agent, or stabilizer can function as disintegrating agent, and organic solvent, surface active agents, penetration aids can also function as wetting agent, carrier, or dispersing agent, the ingredients taught by Akum as discussed above correspond to ingredients as interpreted in instant claims 1-3. Moreover, MPEP 2112.01.II states "[p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable, as indicated in MPEP 2112.01.II. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). For this instance, the sodium dioctyl sulfosuccinate, or naphthalenesulfonate, calcium dodecyl benzene sulfonate are taught by prior art, their functions being wetting agent, or dispersing agent are properties of the compounds, which would necessarily present in prior art.
For Claims 4-5, Akum teaches various additives, such as adherents, dispersants, surfactants (e.g., [0311]), filler, which is an organic or inorganic, natural or synthetic component with which the active components are combined to facilitate its application onto the plant element (e.g., [0312]), such as inert solid including clays, natural or synthetic silicates, silica, resins, solid fertilizers including ammonium salts, natural soil minerals including kaolins, clays, talc, lime, quartz, attapulgite, montmorillonite, bentonite or diatomaceous earths, or synthetic minerals (e.g., [0312]), or adjuvants such as modifiers, activators, fertilizers including ammonium sulfate, ammonium nitrate or urea to improve the absorption and solubility of the active ingredient and reduce the antagonistic of active ingredients (e.g., [0334]). As discussed above, identical chemical compounds cannot have mutually exclusive properties. Since prior art teaches the same compound, being disintegrating agent or carrier is the compound inherent property, which would necessarily present in prior art.
For Claim 6, Akum teaches that sea kelp, humic acids, fulvic acids and B vitamins as common components of biostimulants and the formulation can include vitamin C (same as ascorbic acid), vitamin E, and amino acids such as glycine as antioxidants (e.g., [0278]). As discussed above, identical compound cannot have mutually exclusive properties. Since prior art teaches ascorbic acid, being a protective agent is inherent property that would necessarily present in prior art.
For Claim 7, Akum teaches the one or more microbes are present in about 2% to about 80%, or about 5% to about 65%, or 10% to about 60% by weight of the entire formulation (e.g., [0298]), the end points about 2% or about 5%, or 10% falling within the cell mass percentage 3-10% by weight of the entire formulation as interpreted in instant claim 7. MPEP 2131.03.I states that "If the prior art discloses a point within the claimed range, the prior art anticipates the claim." UCB, Inc. v. Actavis Labs. UT, Inc., 65 F.4th 679, 687, 2023 USPQ2d 448 (Fed. Cir. 2023).
In light of claim interpretation, the preferable agent(s) or preferable agent mass percentages are not required features of the formulation, therefore, prior art does not require such teaching. Moreover, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
MPEP 2144.01 points out "[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968). “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983), and "A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments." Merck & Co. v.Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), and "Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments." In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971).
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DONGXIU ZHANG SPIERING whose telephone number is (703)756-4796. The examiner can normally be reached 7:30am-5:00pm (Except for Fridays).
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/DX.Z./Examiner, Art Unit 1616
/SUE X LIU/Supervisory Patent Examiner, Art Unit 1616
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