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 .
This office action is in response to the application filed on June 18, 2024. The earliest effective filing date of the application is December 20, 2021.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d), filed on December 19, 2022.
Status of Application
The preliminary amendment filed December 3, 2025 has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 74, 75, 77 – 81, 83, 85, 88, 90, 91, and 94 – 99
Withdrawn claims: None
Amended claims: 74, 75, 77 – 81, 83, 85, 88, 90, and 91
Previously cancelled claims: 1 – 73
Newly cancelled claims: 76, 82, 84, 86, 87, 89, 92, and 93
New claims: 94 – 99
Claims currently under examination: 74, 75, 77 – 81, 83, 85, 88, 90, 91, and 94 – 99
The status of the objections and rejections regarding the disclosure upon entry of the present amendment stands as follows:
Objections: The previous objections to figures 1D, 1E, 1L, and 5 are withdrawn in light of the submitted replacement drawings. The previous objections to the specification are withdrawn in light of applicant’s amendments. There are no objections in this action.
Rejections Withdrawn due to Cancellation: The previous rejections of claims 76, 82, 84, 86, 87, 89, 92, and 93 are withdrawn due to the cancellation of said claims.
35 U.S.C. § 112 Rejections: The previous rejections under 35 U.S.C. § 112(b) of claims 78 and 91 are withdrawn in light of applicant’s amendments. There are no rejections under 35 U.S.C. § 112 in this action.
35 U.S.C. § 101 Rejections: The previous rejections under 35 U.S.C. § 101 of claims 74, 75, 77 – 81, 83, 85, 88, 90, and 91 are withdrawn in light of applicant’s amendments. There are no rejections under 35 U.S.C. § 101 in this action.
35 U.S.C. § 102 Rejections: The previous rejections under 35 U.S.C. § 102 of claims 74, 75, 77, 79 – 81, 83, 88, and 90 over Wood are withdrawn in light of applicant’s amendments. The previous rejections under 35 U.S.C. § 102 of claims 83 and 85 over Fuenzalida are withdrawn in light of applicant’s amendments. There are no rejections under 35 U.S.C. § 102 in this action.
35 U.S.C. § 103 Rejections: The previous rejections under 35 U.S.C. § 103 of claims 77, 78, 90, and 91 over Wood are withdrawn in light of applicant’s amendments. New rejections under 35 U.S.C. § 103 of claims 74, 75, 77 – 81, 83, 85, 88, 90, 91, and 94 – 99 over Wood are presented below.
Double Patenting: The terminal disclaimer filed on December 3, 2025 has been entered. The previous nonstatutory double patenting rejections of claims 74, 75, 77, 79, 80, and 83 over copending application 18/067,470 have been withdrawn. There are no double patenting rejections in this action.
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.
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 74, 75, 77 – 81, 83, 85, 88, 90, 91, and 94 – 99 are rejected under 35 U.S.C. 103 as being unpatentable over Wood et al. (WO 2019133923 A1) in view of Fuenzalida et al. (WO 2020214843 A1) and Mamvura et al. (Characterisation of the Poly-(Vinylpyrrolidone)-Poly- (Vinylacetate-Co-Crotonic Acid) (PVP:PVAc-CA) Interpolymer Complex Matrix Microparticles Encapsulating a Bifidobacterium lactis Bb12 Probiotic Strain. Probiotics & Antimicro. Prot. Vol 3. Pp. 97–102. (2011)).
Regarding claim 74, the instant specification defines the term "nutritive food product” to be a food product comprising at least a portion of one or more edible plants comprising a composition of at least one microbe that is/are beneficial to a plant when applied prior or during farming and/or provides a probiotic benefit to a mammal that consumes the final product, wherein the microbe composition comprises at least one heterologous microbe ([0099]; [0103]).
Wood teaches a microbial-based composition (i.e., product comprising a formulation comprising heterologous microbes) for use as a plant growth promoting and silage-enhancing agent comprising a co-cultured microorganism consortium (i.e., formulation – Abstract; [0010]). Wood teaches the microorganism consortium (i.e., formulation) comprises two or more co-cultured microorganisms (i.e., heterologous microbes – [0066]). Wood teaches vegetable crops for which the microbial-based composition (i.e., product comprising a formulation) can be found useful include leafy and salad vegetables ([0146]). Wood teaches the microbial-based composition (i.e., product comprising a formulation) may be delivered to a plant’s root, foliar surface, or tissue system ([0012]). Wood teaches a “foliar surface” is typically a leaf surface, but other green parts of plants have surfaces that may permit absorption of active ingredient, including petioles, stipules, stems, bracts, flowerbuds, etc., and for present purposes “foliar surfaces” will be understood to include surfaces of such green parts ([0485]).
With respect to the heterologous microbes present in the (i.e., product comprising a formulation), Wood teaches the at least two microorganisms (i.e., heterologous microbes) of the microbial-based composition (i.e., product comprising a formulation) may comprise Lactobacillus brevis, Lactobacillus plantarum and Pichia kudriavzevii ([0068]; [0087]);
Wood does not teach the microbial-based composition (i.e., product comprising a formulation) comprises Leuconostoc mesenteroides.
Fuenzalida teaches a method of incorporating bacteria into a plant seed ([0005]). Fuenzalida teaches it has been shown that microbial colonization of the phytosphere starts from germination, and continues through-all the plant life cycle, extending to the complete surface of the plant, and concentrating in the rhizosphere where high nutrient and water availability from root exudates create a suitable environment for microbial growth ([0054]). Fuenzalida teaches beneficial or mutualistic bacteria, usually known as plant growth promoting bacteria (PGPB), frequently colonize the rhizosphere and internal tissues of plants ([0054]). Fuenzalida teaches one or more microbes in the bacterial solution may comprise a 16S nucleic acid sequence of any of SEQ ID NOs: 1-10221 [0120]). Fuenzalida teaches SEQ ID No. 5072, which is found in a Leuconostoc mesenteroides strain (See Fuenzalida Sequence Listing, SEQ ID No. 5072, filed with this action).
While Wood is silent with respect to whether the microbial-based composition (i.e., product comprising a formulation) comprises Leuconostoc mesenteroides, MPEP § 2144.06.I teaches 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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have included the Leuconostoc mesenteroides strain of Fuenzalida in the microbial-based composition (i.e., product comprising heterologous microbes) of Wood because the Leuconostoc mesenteroides strain of Fuenzalida is a known plant probiotic used in compositions similar to those taught by Wood.
With respect to the polymeric substance, Wood teaches the microbial-based composition (i.e., product comprising heterologous microbes) may be provided as a dry composition, wherein the dry microbial-based composition (i.e., product comprising a formulation) is divided into micron scale particles that are subsequently coated with biocompatible polymers (i.e., polymeric substances), such as polyethylene glycol (PEG), chitin, dextrin, polylactic glycolic acid copolymer (PLGA), polylactic acid (PLA), polyglycolic acid (PGA), or the like ([0205]).
Wood does not teach the biocompatible polymer (i.e., polymeric substance) comprises a vinyl pyrrolidone/vinyl acetate copolymer.
Mamvura teaches an encapsulation method that employs neither water nor organic solvents was developed based on interpolymer complex formation between poly-(vinylpyrrolidone) (PVP – i.e., a vinyl pyrrolidone) and poly-(vinylacetate-co-crotonic acid) (PVAc-CA – i.e., a vinyl acetate) in supercritical carbon dioxide (scCO2), both polymers FDA approved for use as food additives (p. 98, paragraph 2). Mamvura teaches successful encapsulation of bacteria was achieved using this method, and it was proven that the method did not produce any noticeable damage or morphological changes to the bacteria (p. 98, paragraph 2). Mamvura teaches the PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) microparticles have a high encapsulation efficiency and have previously been proven to significantly improve viability of the encapsulated bacteria (p. 101, paragraph 1). Mamvura teaches the PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) microparticles will potentially deliver high numbers of the probiotics because of the high encapsulation efficiency obtained and their small size (p. 101, paragraph 2).
Wood and Mamvura are combinable because they are concerned with the same field of endeavor, namely, microencapsulating probiotics with biocompatible copolymers. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have used PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) in supercritical carbon dioxide (scCO2) as the biocompatible copolymer in the microbial-based composition (i.e., product comprising a formulation) of Wood, as taught by Mamvura, because PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) microparticles will potentially deliver high numbers of the probiotics because of the high encapsulation efficiency obtained and their small size.
Regarding claim 75, Wood teaches the microbial-based composition (i.e., product comprising a formulation) may be delivered to a plant’s foliar surface (i.e., leaves), thereby producing a nutritive food product comprising a leafy vegetable comprising a microbial-based composition (i.e., product comprising a formulation) on its leaves ([0012]).
Furthermore, given Fuenzalida teaches beneficial or mutualistic bacteria, usually known as plant growth promoting bacteria, frequently colonize the rhizosphere and internal tissues of plants, one of ordinary skill in the art would reasonably expect the microbes in the microbial-based composition (i.e., product comprising a formulation) to have colonized the rhizosphere and internal tissues of the plants upon which they are deposited, including the roots and leaves.
Regarding claim 77, SEQ ID No. 5072 of Fuenzalida has a 99.9% identity to SEQ ID No. 157 of the instant application (See Result No. 3 in 20260219_111820_us-18-747-158-157.align45.rnpbm of Search Results filed on 2/19/2026).
Regarding claim 78, while Wood does not teach the leafy vegetable (i.e., the at least a portion of the edible plant) comprises at least 1 x 104 CFU of at least one of the heterologous microbes /gram of the leafy vegetable (i.e., the at least a portion of the edible plant), one of ordinary skill in the art would have adjusted the concentration of colony forming units on the leafy vegetable during routine optimization to find the CFU of at least one of the heterologous microbes /gram of the leafy vegetable (i.e., the at least a portion of the edible plant) that results in the best fertilization, health, and growth enhancement for the leafy vegetable. MPEP §2144.05(II) states 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, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed CFU of at least one of the heterologous microbes /gram of the leafy vegetable (i.e., the at least a portion of the edible plant), 1 x 104 CFU/gram, would thus be obvious.
Regarding claim 79, Wood teaches the microbial-based composition (i.e., product comprising a formulation) provides qualities useful in the agricultural industry as a microbial inoculant (i.e., the product colonizes plants) that promotes plant health and plant growth ([0012]).
Regarding claim 80, claim 80 recites “improves resistance of the edible plant to an abiotic stress selected from temperature and moisture level” which is interpreted broadly to mean the edible plant has resistance to an abiotic stress selected from temperature and moisture level as if it is healthy.
Wood teaches the microbial-based composition (i.e., product comprising a formulation) provides qualities useful in the agricultural industry as a microbial inoculant (i.e., the product colonizes plants) that promotes plant health and plant growth ([0012]). By the plant being made healthy by the microbial-based composition (i.e., product comprising a formulation) of Wood, the microbial-based composition (i.e., product comprising a formulation) improves resistance of the edible plant to an abiotic stress selected from temperature and moisture level.
Regarding claim 81, claim 81 recites “enhances production of endogenous metabolites” which is interpreted broadly to mean the plant produces endogenous metabolites as if it is healthy.
Wood teaches the microbial-based composition (i.e., product comprising a formulation) provides qualities useful in the agricultural industry as a microbial inoculant (i.e., the product colonizes plants) that promotes plant health and plant growth ([0012]). By the plant being made healthy by the microbial-based composition (i.e., product comprising a formulation) of Wood, the microbial-based composition (i.e., product comprising a formulation) enhances the production of endogenous metabolites in a tissue of the edible plant.
Regarding claim 83, Wood teaches a microbial-based composition (i.e., product comprising a formulation) for use as a plant growth promoting and silage-enhancing agent comprising a co-cultured microorganism consortium (i.e., formulation – Abstract; [0010]). Wood teaches the microorganism consortium (i.e., formulation) may comprise two or more co-cultured microorganisms (i.e., heterologous microbes – [0066]). Wood teaches vegetable crops for which the microbial-based composition (i.e., product comprising a formulation) can be found useful include leafy and salad vegetables ([0146]). Wood teaches microbial-based composition (i.e., product comprising a formulation) can be applied using any conventional system for applying liquid or solid to a seed such as, but not limited to, application by spraying, tumbling, brush, or by rope-wick can be used if desired ([0141)].
Wood teaches the microbial-based composition (i.e., product comprising a formulation) provides qualities useful in the agricultural industry as a microbial inoculant (i.e., the product colonizes plants) that promotes plant health and plant growth ([0012]). The instant specification states the heterologous microbe is deposited on the seed or seedling by spraying a formulation comprising heterologous microbes ([0017]; [0020]). The teachings of Wood and the instant specification concur that spraying a microbial-based composition (i.e., product comprising a formulation) is an effective method of inoculating an edible plant. Therefore, spraying the microbial-based composition (i.e., product comprising a formulation) onto the seed would necessarily allow the microbial-based composition (i.e., product comprising a formulation) colonize the plant.
With respect to the heterologous microbes present in the (i.e., product comprising a formulation), Wood teaches the at least two microorganisms (i.e., heterologous microbes) of the microbial-based composition (i.e., product comprising a formulation) may comprise Lactobacillus brevis, Lactobacillus plantarum and Pichia kudriavzevii ([0068]; [0087]);
Wood does not teach the microbial-based composition (i.e., product comprising a formulation) comprises Leuconostoc mesenteroides.
Fuenzalida teaches a method of incorporating bacteria into a plant seed ([0005]). Fuenzalida teaches it has been shown that microbial colonization of the phytosphere starts from germination, and continues through-all the plant life cycle, extending to the complete surface of the plant, and concentrating in the rhizosphere where high nutrient and water availability from root exudates create a suitable environment for microbial growth ([0054]). Fuenzalida teaches beneficial or mutualistic bacteria, usually known as plant growth promoting bacteria (PGPB), frequently colonize the rhizosphere and internal tissues of plants ([0054]). Fuenzalida teaches one or more microbes in the bacterial solution may comprise a 16S nucleic acid sequence of any of SEQ ID NOs: 1-10221 [0120]). Fuenzalida teaches SEQ ID No. 5072, which is found in a Leuconostoc mesenteroides strain (See Fuenzalida Sequence Listing, SEQ ID No. 5072, filed with this action).
While Wood is silent with respect to whether the microbial-based composition (i.e., product comprising a formulation) comprises Leuconostoc mesenteroides, MPEP § 2144.06.I teaches 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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have included the Leuconostoc mesenteroides strain of Fuenzalida in the microbial-based composition (i.e., product comprising heterologous microbes) of Wood because the Leuconostoc mesenteroides strain of Fuenzalida is a known plant probiotic used in compositions similar to those taught by Wood.
With respect to the polymeric substance, Wood teaches the microbial-based composition (i.e., product comprising heterologous microbes) may be provided as a dry composition, wherein the dry microbial-based composition (i.e., product comprising a formulation) is divided into micron scale particles that are subsequently coated with biocompatible polymers (i.e., polymeric substances), such as polyethylene glycol (PEG), chitin, dextrin, polylactic glycolic acid copolymer (PLGA), polylactic acid (PLA), polyglycolic acid (PGA), or the like ([0205]).
Wood does not teach the biocompatible polymer (i.e., polymeric substance) comprises a vinyl pyrrolidone/vinyl acetate copolymer.
Mamvura teaches an encapsulation method that employs neither water nor organic solvents was developed based on interpolymer complex formation between poly-(vinylpyrrolidone) (PVP – i.e., a vinyl pyrrolidone) and poly-(vinylacetate-co-crotonic acid) (PVAc-CA – i.e., a vinyl acetate) in supercritical carbon dioxide (scCO2), both polymers FDA approved for use as food additives (p. 98, paragraph 2). Mamvura teaches successful encapsulation of bacteria was achieved using this method, and it was proven that the method did not produce any noticeable damage or morphological changes to the bacteria (p. 98, paragraph 2). Mamvura teaches the PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) microparticles have a high encapsulation efficiency and have previously been proven to significantly improve viability of the encapsulated bacteria (p. 101, paragraph 1). Mamvura teaches the PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) microparticles will potentially deliver high numbers of the probiotics because of the high encapsulation efficiency obtained and their small size (p. 101, paragraph 2).
Wood and Mamvura are combinable because they are concerned with the same field of endeavor, namely, microencapsulating probiotics with biocompatible copolymers. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have used PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) in supercritical carbon dioxide (scCO2) as the biocompatible copolymer in the microbial-based composition (i.e., product comprising a formulation) of Wood, as taught by Mamvura, because PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) microparticles will potentially deliver high numbers of the probiotics because of the high encapsulation efficiency obtained and their small size.
Regarding claim 85, SEQ ID No. 5072 of Fuenzalida has a 99.9% identity to SEQ ID No. 157 of the instant application (See Result No. 3 in 20260219_111820_us-18-747-158-157.align45.rnpbm of Search Results filed on 2/19/2026).
Regarding claim 88, Wood teaches a microbial-based composition (i.e., product comprising a formulation) for use as a plant growth promoting and silage-enhancing agent comprising a co-cultured microorganism consortium (i.e., formulation – Abstract; [0010]). Wood teaches the microorganism consortium (i.e., formulation) may comprise two or more co-cultured microorganisms (i.e., heterologous microbes – [0066]). Wood teaches vegetable crops for which the microbial-based composition (i.e., product comprising a formulation) can be found useful include leafy and salad vegetables ([0146]). Wood teaches the microbial-based composition (i.e., product comprising a formulation) may be delivered to a plant’s root, foliar surface, or tissue system ([0012]). Wood teaches a “foliar surface” herein is typically a leaf surface, but other green parts of plants have surfaces that may permit absorption of active ingredient, including petioles, stipules, stems, bracts, flowerbuds (i.e., an exterior surface of a flower), etc., and for present purposes “foliar surfaces” will be understood to include surfaces of such green parts ([0485]).
Wood teaches the microbial-based composition (i.e., product comprising a formulation) provides qualities useful in the agricultural industry as a microbial inoculant (i.e., the product colonizes plants) that promotes plant health and plant growth ([0012]). The instant specification states the heterologous microbe is deposited on the fruit or flower by spraying a formulation comprising heterologous microbes ([0019]; [0020]). The teachings of Wood and the instant specification concur that spraying a microbial-based composition (i.e., product comprising a formulation) is an effective method of inoculating an edible plant. Therefore, spraying the microbial-based composition (i.e., product comprising a formulation) onto a plant’s flowerbuds (i.e., an exterior surface of a flower) would necessarily allow the microbial-based composition (i.e., product comprising a formulation) colonize the plant.
With respect to the heterologous microbes present in the (i.e., product comprising a formulation), Wood teaches the at least two microorganisms (i.e., heterologous microbes) of the microbial-based composition (i.e., product comprising a formulation) may comprise Lactobacillus brevis, Lactobacillus plantarum and Pichia kudriavzevii ([0068]; [0087]);
Wood does not teach the microbial-based composition (i.e., product comprising a formulation) comprises Leuconostoc mesenteroides.
Fuenzalida teaches a method of incorporating bacteria into a plant seed ([0005]). Fuenzalida teaches it has been shown that microbial colonization of the phytosphere starts from germination, and continues through-all the plant life cycle, extending to the complete surface of the plant, and concentrating in the rhizosphere where high nutrient and water availability from root exudates create a suitable environment for microbial growth ([0054]). Fuenzalida teaches beneficial or mutualistic bacteria, usually known as plant growth promoting bacteria (PGPB), frequently colonize the rhizosphere and internal tissues of plants ([0054]). Fuenzalida teaches one or more microbes in the bacterial solution may comprise a 16S nucleic acid sequence of any of SEQ ID NOs: 1-10221 [0120]). Fuenzalida teaches SEQ ID No. 5072, which is found in a Leuconostoc mesenteroides strain (See Fuenzalida Sequence Listing, SEQ ID No. 5072, filed with this action).
While Wood is silent with respect to whether the microbial-based composition (i.e., product comprising a formulation) comprises Leuconostoc mesenteroides, MPEP § 2144.06.I teaches 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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art. Therefore it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have included the Leuconostoc mesenteroides strain of Fuenzalida in the microbial-based composition (i.e., product comprising heterologous microbes) of Wood because the Leuconostoc mesenteroides strain of Fuenzalida is a known plant probiotic used in compositions similar to those taught by Wood.
With respect to the polymeric substance, Wood teaches the microbial-based composition (i.e., product comprising heterologous microbes) may be provided as a dry composition, wherein the dry microbial-based composition (i.e., product comprising a formulation) is divided into micron scale particles that are subsequently coated with biocompatible polymers (i.e., polymeric substances), such as polyethylene glycol (PEG), chitin, dextrin, polylactic glycolic acid copolymer (PLGA), polylactic acid (PLA), polyglycolic acid (PGA), or the like ([0205]).
Wood does not teach the biocompatible polymer (i.e., polymeric substance) comprises a vinyl pyrrolidone/vinyl acetate copolymer.
Mamvura teaches an encapsulation method that employs neither water nor organic solvents was developed based on interpolymer complex formation between poly-(vinylpyrrolidone) (PVP – i.e., a vinyl pyrrolidone) and poly-(vinylacetate-co-crotonic acid) (PVAc-CA – i.e., a vinyl acetate) in supercritical carbon dioxide (scCO2), both polymers FDA approved for use as food additives (p. 98, paragraph 2). Mamvura teaches successful encapsulation of bacteria was achieved using this method, and it was proven that the method did not produce any noticeable damage or morphological changes to the bacteria (p. 98, paragraph 2). Mamvura teaches the PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) microparticles have a high encapsulation efficiency and have previously been proven to significantly improve viability of the encapsulated bacteria (p. 101, paragraph 1). Mamvura teaches the PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) microparticles will potentially deliver high numbers of the probiotics because of the high encapsulation efficiency obtained and their small size (p. 101, paragraph 2).
Wood and Mamvura are combinable because they are concerned with the same field of endeavor, namely, microencapsulating probiotics with biocompatible copolymers. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have used PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) in supercritical carbon dioxide (scCO2) as the biocompatible copolymer in the microbial-based composition (i.e., product comprising a formulation) of Wood, as taught by Mamvura, because PVP:PVAc-CA (i.e., vinyl pyrrolidone/ vinyl acetate copolymer) microparticles will potentially deliver high numbers of the probiotics because of the high encapsulation efficiency obtained and their small size.
Regarding claim 90, SEQ ID No. 5072 of Fuenzalida has a 99.9% identity to SEQ ID No. 157 of the instant application (See Result No. 3 in 20260219_111820_us-18-747-158-157.align45.rnpbm of Search Results filed on 2/19/2026).
Regarding claim 91, while Wood does not teach the flowerbuds (i.e., an exterior surface of a flower) comprise at least 1 x 104 CFU of at least one of the heterologous microbes /gram of flowerbuds (i.e., an exterior surface of a flower), one of ordinary skill in the art would have adjusted the concentration of colony forming units on the leafy vegetable during routine optimization to find the CFU of at least one of the heterologous microbes /gram of flowerbuds (i.e., an exterior surface of a flower) that results in the best fertilization, health, and growth enhancement for the leafy vegetable. MPEP §2144.05(II) states 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, 456, 105 USPQ 233, 235 (CCPA 1955). The CFU of at least one of the heterologous microbes /gram of flowerbuds (i.e., an exterior surface of a flower), 1 x 104 CFU/gram, would thus be obvious.
Regarding claims 94, 96, and 98, Fuenzalida teaches SEQ ID No. 5072, which corresponds to a Leuconostoc mesenteroides strain (See Fuenzalida Sequence Listing, SEQ ID No. 5072, filed with this action). SEQ ID No. 5072 of Fuenzalida has a 99.9% identity to SEQ ID No. 157 of the instant application (See Result No. 3 in 20260219_111820_us-18-747-158-157.align45.rnpbm of Search Results filed on 2/19/2026).
Wood does not teach the Lactobacillus brevis comprises a 16S RNA or ITS sequence having at least 99% identity to any one of SEQ ID NOs: 157, 158, 163, and 165 of the instant application.
Fuenzalida teaches SEQ ID No. 4647, which is found in Lactobacillus brevis (See Fuenzalida Sequence Listing, SEQ ID No. 4647, filed with this action). SEQ ID No. 4647 has a 99.9% identity to SEQ ID No. 158 of the instant application (See Result No. 3 in 20260219_111820_us-18-747-158-158.align45.rnpbm of Search Results filed on 2/19/2026).
It would have been obvious to one of skill in the art before the effective filing date of the invention to have selected the Lactobacillus brevis strain of Fuenzalida (which comprises a sequence with 99.9% idenitity with SEQ ID No. 158 of the instant invention) as the Lactobacillus brevis in the microbial-based composition (i.e., product comprising heterologous microbes) of Wood because Fuenzalida shows that it was known for such a Lactobacillus brevis strain to have been identified, used as a plant probiotic, and published before the time of filing. Therefore, it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
Wood does not teach the Lactobacillus plantarum comprises a 16S RNA or ITS sequence having at least 99% identity to any one of SEQ ID NOs: 157, 158, 163, and 165 of the instant application.
Fuenzalida teaches SEQ ID No. 4763, which is found in Lactobacillus plantarum (See Fuenzalida Sequence Listing, SEQ ID No. 4763, filed with this action). SEQ ID No. 4763 has a 99.7% identity to SEQ ID No. 163 of the instant application as shown below (See Result No. 19 in 20260219_111820_us-18-747-158-163.align45.rnpbm of Search Results filed on 2/19/2026).
It would have been obvious to one of skill in the art before the effective filing date of the invention to have selected the Lactobacillus plantarum strain of Fuenzalida (which comprises a sequence with 99.7% idenitity with SEQ ID No. 163 of the instant invention) as the Lactobacillus plantarum in the microbial-based composition (i.e., product comprising heterologous microbes) of Wood because Fuenzalida shows that it was known for such a Lactobacillus plantarum strain to have been identified, used as a plant probiotic, and published before the time of filing. Therefore, it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
While Wood does not teach the Pichia kudriavzevii comprises a 16S RNA or ITS sequence having at least 99% identity to any one of SEQ ID NOs: 157, 158, 163, and 165 of the instant application, there is evidence to suggest Wood implies a Pichia kudriavzevii that inherently comprises a 16S RNA or ITS sequence having at least 99% identity to any one of SEQ ID NOs: 157, 158, 163, and 165 of the instant application. Wood teaches the microorganism consortium (i.e., formulation) may include Pichia kudriavzevii ([0068]). Wood teaches the Pichia kudriavzevii may be selected from an extensive list of Pichia kudriavzevii strains ([0097]).
The instant specification states Table E shows a list of strains isolated from edible plants, listed with heat shock tolerance, acid shock tolerance, and isolation temperature ([00247], Table E). The instant specification states sequences associated with the isolates of Table E are shown in Table F ([00247]). While Table E lists “Strain Number” as a category, the “Strain Number” appears to link the microorganisms identified to be naturally present on edible plants of Table E to a naturally present gene sequence in Table F. If these gene sequences are naturally present in microorganisms identified to naturally exist on edible plants, then it is reasonable to assume, absent evidence to the contrary, any strain of a microorganism listed in Table E inherently has the corresponding sequence of Table F.
Therefore, given the extensive list of Pichia kudriavzevii strains suitable for use in the microorganism consortium (i.e., formulation) of Wood, and the implication by the instant specification that Pichia kudriavzevii naturally comprises SEQ ID No. 165 (p. 63, Table E, DP102, Pichia kudriavzevii; p. 104, Table F, SEQ ID No. 165, DP102 ITS sequence); Wood teaches selecting a Pichia kudriavzevii strain comprising SEQ ID No. 165.
Regarding claims 95 97, and 99, Fuenzalida teaches SEQ ID No. 5072, which corresponds to a Leuconostoc mesenteroides strain (See Fuenzalida Sequence Listing, SEQ ID No. 5072, filed with this action). SEQ ID No. 5072 of Fuenzalida has a 99.9% identity to SEQ ID No. 157 of the instant application (See Result No. 3 in 20260219_111820_us-18-747-158-157.align45.rnpbm of Search Results filed on 2/19/2026).
While Fuenzalida does not teach the Leuconostoc mesenteroides strain comprises a sequence with 100% identity to SEQ ID No. 157, MPEP § 2144.09 states prima facie case of obviousness may be made when chemical compounds have very close structural similarities and similar utilities. "An obviousness rejection based on similarity in chemical structure and function entails the motivation of one skilled in the art to make a claimed compound, in the expectation that compounds similar in structure will have similar properties."
Therefore, the the Leuconostoc mesenteroides strain comprises a sequence with 99.9% identity to SEQ ID No. 157 renders obvious a Leuconostoc mesenteroides strain comprising a sequence with 100% identity to SEQ ID No. 157, given the sequence’s close structural similarity, and expectation of similar function absent unexpected results.
While Wood does not teach each of the Lactobacillus brevis, Lactobacillus plantarum, and Pichia kudriavzevii comprises a 16S RNA or ITS sequence comprising the nucleic acid sequence of any one of SEQ ID NOs: 157, 158, 163, and 165 of the instant application, there is evidence to suggest Wood implies Lactobacillus brevis, Lactobacillus plantarum, and Pichia kudriavzevii that inherently comprises a 16S RNA or ITS sequence comprising the nucleic acid sequence of any one of SEQ ID NOs: 157, 158, 163, and 165 of the instant application. Wood teaches the microorganism consortium (i.e., formulation) may include Lactobacillus brevis, Lactobacillus plantarum, and Pichia kudriavzevii ([0068]; [0087]). Wood teaches the Lactobacillus brevis, Lactobacillus plantarum, and Pichia kudriavzevii may be selected from an extensive list of Pichia kudriavzevii strains ([0093]; [0097]; [0100]).
The instant specification states Table E shows a list of strains isolated from edible plants, listed with heat shock tolerance, acid shock tolerance, and isolation temperature ([00247], Table E). The instant specification states sequences associated with the isolates of Table E are shown in Table F ([00247]). While Table E lists “Strain Number” as a category, the “Strain Number” appears to link the microorganisms identified to be naturally present on edible plants of Table E to a naturally present gene sequence in Table F. If these gene sequences are naturally present in microorganisms identified to naturally exist on edible plants, then it is reasonable to assume, absent evidence to the contrary, any strain of a microorganism listed in Table E inherently has the corresponding sequence of Table F.
Therefore, given the extensive list of Lactobacillus brevis strains suitable for use in the microorganism consortium (i.e., formulation) of Wood, and the implication by the instant specification that Lactobacillus brevis naturally comprises SEQ ID No. 158 (p. 63, Table E, DP94, Lactobacillus brevis; p. 101, Table F, SEQ ID No. 158, DP94 rRNA sequence); Wood teaches selecting a Lactobacillus brevis strain comprising SEQ ID No. 158.
Given the extensive list of Lactobacillus plantarum strains suitable for use in the microorganism consortium (i.e., formulation) of Wood, and the implication by the instant specification that Lactobacillus plantarum naturally comprises SEQ ID No. 163 (p. 62, Table E, DP100, Lactobacillus plantarum; p. 104, Table F, SEQ ID No. 163, DP100 rRNA sequence); Wood teaches selecting a Lactobacillus plantarum strain comprising SEQ ID No. 163.
Given the extensive list of Pichia kudriavzevii strains suitable for use in the microorganism consortium (i.e., formulation) of Wood, and the implication by the instant specification that Pichia kudriavzevii naturally comprises SEQ ID No. 165 (p. 63, Table E, DP102, Pichia kudriavzevi; p. 104, Table F, SEQ ID No. 165, DP102 ITS sequence); Wood teaches selecting a Pichia kudriavzevii strain comprising SEQ ID No. 165.
It is noted that the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In this case, the fact that the inventor has identified specific gene sequences (SEQ ID Nos. 158, 163, and 165) naturally present in Lactobacillus brevis, Lactobacillus plantarum, and Pichia kudriavzevii does not render these gene sequences novel.
Response to Arguments
Applicant's arguments filed December 3, 2025 have been fully considered but they are not persuasive.
Applicant argues the claims as amended are not anticipated by Wood or Fuenzalida (p. 12, paragraph 3; p. 13, paragraph 1; p. 13, paragraph 3).
Applicant’s argument has been carefully considered and are persuasive. Neither Wood nor Fuenzalida anticipate the claims as currently recited. Therefore, the rejections under 35 U.S.C. § 102 of claims 74, 75, 77, 79 – 81, 83, 88, and 90 over Wood and claims 83 and 85 over Fuenzalida are withdrawn in light of applicant’s amendments. However, upon further consideration, a new ground of rejection is made in view of Wood, Fuenzalida, and Mamvura.
Applicant argues the claims as amended are not rendered obvious by Wood or Fuenzalida (p. 13, paragraph 3; p. 15, paragraph 4; p. 17, paragraph 1).
Applicant’s argument has been carefully considered however the argument is not persuasive. While the previous rejections under 35 U.S.C. § 103 recite inventions that are different from the inventions of the currently recited claims, the new rejections made in view of Wood, Fuenzalida, and Mamvura render claims 74, 75, 77 – 81, 83, 85, 88, 90, 91, and 94 – 99 obvious as shown in the rejections above.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/L.J.M./
Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793