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 .
Claims 1-25 are pending in this application.
Applicant's election with traverse of the invention of Group II and rhamnolipid as the species in the reply filed on 5/20/2026 is acknowledged. The traversal is on the grounds that (1) “showing of distinctness cannot be made by the Examiner” because the composition of Group I can be employed in the method of Group II and (2) “search and examination of all claims in the instant application can be made without serious burden to the Examiner.”
This is not found persuasive because of the following reasons.
Distinctness: It was clearly stated in the previous Office action of 3/25/2026 that distinctness can be shown when the product as claimed can be used in a materially different process of using that product. MPEP 806.05(h). Applicant does not traverse the fact that BR 102019004754 establishes the use of the biosurfactant sophorolipid as a sanitizer of chicken carcass. Distinctness of the two inventions is therefore still deemed to be proper.
Serious burden: Separate classification is evidence of serious burden, because it shows that each invention has attained recognition in the art as a separate subject for inventive effort, and also a separate search. Separate classification was established in the Office action of 3/25/2025, and Applicant does not traverse the separate classification. The Examiner maintains there would be serious burden under the facts of this application if the restriction were not required.
The requirement is still deemed proper and is therefore made FINAL.
Upon entry of the amendment to the claims filed on 5/20/2026, claim 1 is withdrawn from further consideration on the merits as being directed to non-elected subject matter. Amended claims 2-25 will presently be examined to the extent that they read on the elected subject matter, i.e., Group II and rhamnolipid as the single disclosed species of “biosurfactant.”
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 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 2-9 , 19, 21-23, and 25 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN 1077879731.
CN 107787973 discloses application of 100 ml of 0.5 g/liter of rhamolipid2 to Zoysia turf grass in a pot having a diameter of 13 cm (paragraph 24). This application amount is approximately 12.3 ounces per 1,000 ft2. Rhamnolipid alleviates salt stress in plants, including the turf grass Zoysia japonica (claims 1-3). Significant increase in water content and growth rate of Zoysia japonica is disclosed (claim 4; paragraphs 5, 54-55).
The claims are thereby anticipated.
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.
Claims 2-25 are rejected under 35 U.S.C. 103 as being unpatentable over Farmer et al. (US 2021/0267214; hereinafter, Farmer) in view of CN 107787973, Stanghellini et al. (US 5,767,090; hereinafter, Stanghellini), Gunther IV et al. (hereinafter, Gunther), Harmon et al. (hereinafter, Harmon), Ford et al. (US 2022/0174960; hereinafter, Ford).
Farmer (US 2021/0267214) discloses a microbe-based composition, which can comprise products resulting from the growth of microorganisms such as Pseudomonas chlororaphis, including 0.001-90 wt% of biosurfactant such as rhamnolipids; the microbe-based composition increases plant biomass and enhance plant growth, yield, and health (e.g., ward off pests, disease, survive drought), induce auxin production, enable solubilization, absorption and/or balance of nutrients in the soil, and protect plants from pests and pathogens (paragraphs 62, 142-145, 154, 207; claim 14). See also paragraph 49. The microbe-based composition can also comprise the biosurfactant at 0.001-10 wt% (paragraph 146). Application to grass growing in the field, turf or sod, e.g., ryegrass sod and blue rye sod, is disclosed (paragraphs 34-35, 64, 89, 279; Examples 5-6 on page 15; Example 12 on page 19; claims 43, 45). Application to the soil, plant parts, and roots is disclosed (paragraphs 85-86, 88). Combined use with other agricultural additives such as fertilizers, water treatments, non-ionic surfactants, soil amendments, carriers, other microbe-based compositions, nutrients for plant growth and/or microbe growth (e.g., carbohydrates, soybean oil, corn oil, combination thereof), kelp extract, humic acid is disclosed (paragraphs 154-155, 157, 170, 207, 215, 234-246).
CN 107787973 discloses application of 100 ml of 0.5 g/liter of rhamolipid3 to Zoysia turf grass in a pot having a diameter of 13 cm (paragraph 24). This application amount is approximately 12.3 ounces per 1,000 ft2. Rhamnolipid alleviates salt stress in plants, including the turf grass Zoysia japonica (claims 1-3). Significant increase in water content and growth rate of Zoysia japonica is disclosed (claim 4; paragraphs 5, 54-55). Rhamnolipids can be produced by Pseudomonas aeruginosa (paragraph 6).
Stanghellini (US 5,767,090) discloses controlling zoosporic plant pathogens by applying rhamnolipid biosurfactant to plant leaves, roots, and soil proximate to the plant (claims 1-12). The rhamnolipid can be applied by providing a live, rhamnolipid- producing strain of Pseudomonas to plant leaves or roots (claims 13-18). Rhamnolipid biosurfactants, bacteria that produce rhamnolipid biosurfactants, and culture supernatants from such bacteria cause the lysis of zoospores (column 2, lines 11-15, 25-30; Table 1). Numerous species of the genus Pythium are disclosed as destructive pathogens of roots, foliage, and fruits (column 1, lines 30-34), and Stanghellini teaches control of Pythium plant pathogens (column 2, lines 31-36), including Pythium aphanidermatum (Example 4).
Gunther discloses production of rhamnolipids by Pseudomonas chlororaphis, which is advantageous because it is a nonpathogenic microorganism, unlike P. aeruginosa (abstract; see entire article). Approximately 1 g/liter rhamnolipid yield can be obtained with static growth condition (page 2292; abstract).
Harmon is cited to establish that Pythium aphanidermatum, as well as other species damage turfgrasses (page 1, left column). Pythium blight “rapidly kills cool-season turfgrasses overseeded as winter cover of warm-season species” (id.). The disease can occur on bermudagrass in the summer, though its severity is often limited compared to damage caused to cool-season turfgrass (id.). Pythium blight can quickly spread to kill large areas of turfgrass (page 1, right column).
Ford (US 2022/0174960) discloses formulating agricultural active ingredients such as nutrients, fertilizers, minerals, or other organic molecules with one or more carbohydrates and one or more surfactants (paragraphs 9-11, 21). Alkyl polyglucosides (APGs) are “particularly contemplated for use in the composition” as the surfactant (paragraph 242). Example 8 discloses increased translocation of plant nutrient with the use of APG + sugar (pages 20-21; paragraphs 441-445). Promotion of plant growth, and various other benefits such as increased resistance to environmental conditions such as high salt conditions or reduced water availability, are disclosed (paragraphs 21-22). Ford’s surfactants are present in amounts that range from 5 g/liter, 10 g/liter, 15 g/liter, 20 g/liter, 50 g/liter, 100 g/liter, 150 g/liter, 200 g/liter, to at least 500 g/liter (see paragraph 105 and also 99-102).
Farmer does not explicitly exemplify enhancing quality of turf grass by applying rhamnolipid to turf grass, roots of turf grass, or soil in which turf grass grows. However, application of rhamnolipid to turf grass for salt tolerance and improved growth is already known from CN 107787973, and Farmer teaches applying a microbe-based composition to grass growing in the field, turf, or sod, which composition can comprise products resulting from the growth of microorganisms such as Pseudomonas chlororaphis (which produces rhamnolipid; see Gunther), including 0.001-90 wt% of biosurfactant such as rhamnolipids, and which enhances plant growth, yield, health, and biomass. Additional motivation to apply rhamnolipd to turf grass arises from rhamonolipid’s ability to control harmful plant pathogens such as Pythium aphanidermatum (Stanghellini), which kills turf grass (Harmon).
Claims 10-16 require further addition of at least one naturally-derived surfactant such as alkyl polyglucoside (APG). Farmer teaches combined use with a non-ionic surfactant, and Ford teaches that APG surfactant (non-ionic) and carbohydrate (see Farmer at paragraph 170) increase translocation of plant nutrients and provides numerous other benefits such as improved plant growth and increased resistance to environmental conditions such as high salt conditions or reduced water availability. The claimed ratio range of 1:10 to 10:1 would have been obvious from the known use rates of rhamnolipid and APG.
Claim 21 recites numerous enhancement of turf grass quality, including enhanced initial water uptake and/or water retention, enhanced nutrient use efficiency, enhanced stress tolerance, enhanced disease tolerance, and/or many others. As fully discussed hereinabove, the prior art teaches expectation of the same from application of rhamnolipid to turf grass.
Therefore, the claimed invention, as a whole, would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, because every element of the invention and the claimed invention as a whole have been fairly disclosed or suggested by the teachings of the cited references.
For these reasons, all claims are rejected. No claim is allowed.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to JOHN PAK whose telephone number is (571)272-0620. The Examiner can normally be reached on Monday to Friday from 8:30 AM to 5 PM.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's SPE, Fereydoun Sajjadi, can be reached on (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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/JOHN PAK/Primary Examiner, Art Unit 1699
1 This document is in the Chinese language. Two machine translations and Derwent abstract are provided herewith. Espacenet translation, PE2E Search translation, and Derwent abstract can be used together to provide a comprehensive English translation. Espacenet translation will be discussed, but PE2E Search translation and the Derwent abstract will be discussed also where additional clarity is needed.
2 Espacenet machine translation uses the term “rhamnolipin” and “rhamnolipid” to describe the same substance. See the title of the document, abstract, paragraphs 6 and 52. PE2E Search translation and Derwent abstract confirm that the substance disclosed in CN 107787973 is rhamnolipid.
3 Espacenet machine translation uses the term “rhamnolipin” and “rhamnolipid” to describe the same substance. See the title of the document, abstract, paragraphs 6 and 52. PE2E Search translation and Derwent abstract confirm that the substance disclosed in CN 107787973 is rhamnolipid.
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