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
Claims 9-11,15, 16, 21, 22, 26, 30, 31 and 35 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected process, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 4/11/2026.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-3, 5 and 7 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a product of nature without significantly more. The claim(s) recite(s) one or more of bacterium from the genus Pseudomonas and/or Chromobacterium, wherein narrower claims provide for the specific species P. chlororaphis, P. fluorescens, and/or C. subtsugae. This judicial exception is not integrated into a practical application because the claims are drawn to one or more bacterium, per se. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because there are no non-natural ingredients provided other than the naturally occurring bacterial genera/species.
For the analysis of the claims under 35 USC 101, the Applicant is directed to MPEP 2106, particularly the flow chart provided in section III. Since the claims are drawn to a composition, the claims are one of the described statutory categories, and as such, step 1 of the flow chart is “yes.” Since the claims provide for unaltered and naturally occurring bacterial genera and species, the composition is directed to products of nature. See Quarles (The IPM Practitioner, 33, 7/8, 2013). For defining these embodiments as products of nature, the Applicant is directed to MPEP 2106.04(c), wherein the markedly different characteristic analysis is provided. Since the claims mirror the bacterial consortium provided in Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 76 USPQ 280, 281 (1948), which was defined as a product of nature, the instant claims must also be considered products of nature. For example, since the claimed genera, and subsequently species, all exist as they would in nature (unaltered), the composition as a whole can be considered a product of nature; furthermore, when considering claim 2, which requires both genera to be in the same composition, there is nothing of record to suggest that the behavior of one bacterium affects the behavior of the other, in an unnatural manner. Based upon this analysis, the answer to step 2A would be “yes.” The final question asks if there is “significantly more than the judicial exception. Claims 1-3 and 5 all define a composition that is only defined by the presence of one, or both, claimed genera, wherein claim 3 provides for specifically claimed species. Since these claims only describe a product of nature, these claims are considered ineligible under 35 USC 101. Claim 7 provides for an additional limitation that includes “agriculturally acceptable components.” The instant specification provides for a broad definition of this term in paragraph [0057] of the instantly filed specification. Given the broadest reasonable interpretation of this definition, claim 7 can continue to include products of nature that would not provide for markedly different characteristics, and as such, would be ineligible under 35 USC 101.
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.
Claim 7 is 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.
Regarding claim 7, the word "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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.
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, and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hammer, et al (US Pat. 10,508,280). Hammer provides composition for one, or both of Pseudomonas chlororaphis and P. fluorescens. See column 2, lines 60-62; column 5, lines 34-45. Since the claimed composition provides for, at its broadest, one or more members of the Pseudomonas genera, and at its narrowest, P. chlororaphis or P. fluorescens, Hammer anticipates the claimed composition. Hammer also describes a carrier that is consistent with the limitations of claim 7. See column 3, lines 55-58.
Claims 1, 3 and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Martin, et al (US Pat. 8,691,219). Martin teaches an insecticidal composition comprising Chromobacterium subtsugae. See column 3, lines 40-45. Martin also teaches carrier compositions that are consistent with those claimed in claim 7. See column 4, line 27.
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 2 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Hammer, et al (US Pat. 10,508,280) and Martin, et al (US Pat. 8,691,219) and evidenced by Lahlali, et al (Microorganisms, 10, 596, 2022). Although both Hammer and Martin broadly suggest including other biocidal/insecticidal compositions, neither explicitly suggests adding Chromobacterium (for Hammer) or Pseudomonas (for Martin). See Hammer, column 12, lines 1-5; Martin, column 20, lines 61-63.
Lahlali provides a review paper describing the biological control of plant pathogens. See page 1, “Abstract” section. In it, Lahlali indicates that C. subtsugae, P. fluorescens, and P. chlororaphis are all commercially available biocidal compositions that provide for predictable biocidal applications. See page 19, Table 1. Although there is no explicit suggestion to combine these species, all of their respective properties are known to the ordinary artisan, making their respective activities highly predictable. Based upon the predictability of each of these biological control agents, and the fact that both Hammer and Martin suggest combinations of biological control agents, it would be obvious to the ordinary artisan that if certain pathogenic organisms were present in an agricultural setting, the choice of known biological control agents would be obvious.
With respect to claim 2, it would be obvious to combine multiple biocontrol agents, since there would be a reasonable expectation that each agent would target a different pathogen, thereby providing an agent that can protect a plant from multiple pathogens.
With respect to claim 5, since none of the prior art explicitly teach the claimed combination, there is no reason to expect that the prior art would clearly provide direction for the claimed ratios of bacterium. However, as established by Lahlali, the claimed microbes all have well-known and highly predictable pathogen targets. It would be routine optimization for the ordinary artisan to create a composition comprising both Pseudomonas and Chromobacterium in ratios that are consistent with that claimed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID W BERKE-SCHLESSEL whose telephone number is (571)270-3643. The examiner can normally be reached M-F 8AM-5:30PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Melenie Gordon can be reached at 571-272-8037. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID W BERKE-SCHLESSEL/ Primary Examiner, Art Unit 1651
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