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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on April 21, 2026 has been entered.
Claims 1-7 and 9-20 are pending in the application. Claim 1 has been amended. Claim 8 has been cancelled. Claims 1-7 and 9-20 will be examined.
Status of the Claims
The rejection of claims 1, 9, 11, 18, and 19-20 rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tang et al. (CN116235867A) is withdrawn due to Applicant’s amendment of the claims to add the limitation of “the fermentation product is devoid of living and/or viable microorganisms”.
The rejection of claims 1, 2, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19, and 20 rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ren et al. (CN 112385507A) is withdrawn due to Applicant’s amendment of the claims to add the limitation of “the fermentation product is devoid of living and/or viable microorganisms”.
The rejection of claims 1, 2, 5-10, and 12-20 under 35 U.S.C. 103 as being unpatentable over Ren et al. (CN 112385507A) in view of Zorner et al. (US 2023/0040362) is withdrawn due to Applicant’s amendment of the claims to add the limitation of “the fermentation product is devoid of living and/or viable microorganisms”.
The rejection of claims 3 and 4 under 35 U.S.C. 103 as being unpatentable over Ren et al. (CN 112385507A) in view of Zorner et al. (US 2023/0040362) as applied to claims 1, 2, 5-10, and 12-20 above, and further in view of Drumonde (WO 2020145834) (Derwent for English Translation) is withdrawn due to Applicant’s amendment of the claims to add the limitation of “the fermentation product is devoid of living and/or viable microorganisms”.
Rejections not reiterated from the previous Office Action are hereby withdrawn. The following rejections are newly applied. They constitute the complete set of rejections presently being applied to the instant application.
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.
Claim Rejections - 35 USC § 103
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 1, 2, 5-7, and 9-20 are rejected under 35 U.S.C. 103 as being unpatentable over Wozniak (WO 2020/118278) in view of Zorner et al. (US 2023/0040362).
Applicant’s Invention
Applicant claims a composition comprising: (i) a mycorrhizal fungi component comprising one or more mycorrhizal fungal species; and (ii) a biostimulant component comprising a microbial fermentation product, the microbial fermentation product comprising: a whole culture lysate of a lactic acid bacterial fermentation culture, the whole culture lysate comprising: lysed lactic acid bacteria; fermentation medium; and fermentation metabolites, wherein the microbial fermentation product is devoid of living and/or viable microorganisms.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claim 1, Wozniak teaches a composition for use in improving plant yield, the composition comprising a bacterial fermentation product, comprising: liquid fermentation culture medium or broth; lysed bacteria and anaerobic or fermentation metabolites (page 93, claim 24).
Regarding claims 1 and 19, Wozniak teaches a method of improving plant yield, the method comprising applying a bacterial fermentation product to a seed and/or to a seedling and/or plant grown from the seed, the bacterial fermentation product comprising: liquid fermentation culture medium or broth; lysed bacteria, and fermentation metabolites, applying to the seed, the seedling and/or the plant (page 87, claim 1).
Regarding claim 1, Wozniak teaches the lysed bacteria are lysed lactic acid bacteria (page 3, lines 30-33; page 88, claim 12). Wozniak teaches the bacterial fermentation product comprises a whole culture lysate of a bacterial fermentation culture (page 88, claim 14).
Regarding claim 1, Wozniak teaches the bacterial fermentation product is substantially devoid of living microorganisms (page 3, lines 4-5).
Regarding claim 1, Wozniak teaches some embodiments comprise a plant treatment product that includes one or more plant treatment components and one or more microbial fermentation products (page 5, lines 6-8).
Regarding claims 9, 10 and 13, Wozniak teaches the carrier component can comprise a solid, dry, and/or substantially dry carrier, including phyllosilicates, calcium, mica (page 25, lines 8-15).
Regarding claims 11 and 13, Wozniak teaches illustrative carriers include bentonite, zinc, diatomaceous earth and talc (page 25, lines 16-22; page 88, claim 11, lines 17-18).
Regarding claim 12, Wozniak teaches the solid carrier comprises a plant or plant-based material or extract (page 88, claim 11, lines 21-23)
Regarding claim 14, Wozniak teaches the plant treatment product or plant treatment component can be substantially dry form (page 5, lines 30-31).
Regarding claim 15, Wozniak teaches the moisture content is less than 20% by weight (page 25, lines 28-29).
Regarding claims 18 and 20, Wozniak teaches a method of producing a plant treatment product, the method comprising providing a plant treatment component and mixing the plant treatment component with the microbial fermentation product (page 7, lines 12-14).
Wozniak teaches a method of manufacturing a plant treatment product. The method can include mixing the plant treatment component with a microbial fermentation product to form a plant treatment product or combination product (page 7, lines 24-32).
Wozniak teaches in at least one embodiment the fermentation product can include a first species and/or strain of lactic acid bacteria and/or cellular structural components thereof (e.g., lysed lactic acid bacteria). In some embodiments the fermentation product can include one or more additional microbial (fungal species or strains) (page 18, lines 26-31).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Wozniak does not specifically disclose one or more fungal species is a mycorrhizal fungi, the fungal species comprises Rhizophagus sp., Rhizophagus irregularis, as claimed in claims 2 and 6, or comprise Glomus sp., Glomus intraradices and/or Glomus mosseae, as claimed in claims 5 and 6. It is for this reason Zorner et al. is added as a secondary reference.
Zorner et al. teach compositions and methods for enhancing plant health, growth, and/or yields of crop plants by applying a microbial combination to the roots and/or soil in which the plant is growing (Abstract).
Regarding claim 1, Zorner et al. teach the soil treatment composition can comprise the substrate leftover from fermentation and/or purified or unpurified growth by-products, such as biosurfactants, enzymes and/or other metabolites. The microbes can be live or inactive, although in preferred embodiments, the microbes are live (page 2, paragraph 19).
Zorner et al. teach the microbe-based product may also comprise one or more components of a microbe-based composition that have been processed in some way such as, but not limited to, filtering, centrifugation, lysing, drying, purification and the like (page 3, paragraph 35).
Regarding claim 1, Zorner et al. teach the soil treatment composition comprises one or more mycorrhizal fungi and one or more additional microorganisms not categorized as mycorrhizal (page 5, paragraph 62).
Regarding claims 2, 5, 6, and 7, Zorner et al. teach non-limiting examples of mycorrhizal fungi include Rhizophagus spp. (e.g., R. irregularis) (page 5, paragraph 65).
Zorner et al. teach in certain preferred embodiments, the subject invention utilizes endomycorrhizal fungi, including fungi from the phylum Glomeromycota and the genera Glomus, Gigaspora, Acaulospora, and Entrophospora. Examples of endomycorrhizal fungi include, but not are not limited to, Glomus aggregatum, Glomus etunicatum, Glomus fasciculatum, Glomus intraradices (Rhizophagus irregularis), Glomus mosseae (Funneliformis mosseae), Glomus versiforme, Scutellospora heterogama, and Sclerocystis spp. (page 5, paragraph 66).
Regarding claim 16, Zorner et al. teach the substrate, microbes and growth by-products, blended together and dried to form powder or granules.
Regarding claims 17 and 19, Zorner et al. teach the composition is preferably formulated for application to soil, seeds, whole plants, or plant parts (including, but not limited to, roots, tubers, stems, stalks, buds, flowers and leaves) (page 7, paragraph 99). Zorner et al. teach “applying” a composition or product refers to contacting a composition or product with a target or site such that the composition or product can have an effect on that target or site. The effect can be due to, for example, microbial growth and/or interaction with a plant, as well as the action of a metabolite, enzyme, biosurfactant or other microbial growth by-product (page 11, paragraph 168).
Regarding claims 18 and 20, Zorner et al. teach one microbe-based product of the subject invention is simply the fermentation medium containing the microorganisms and/or the microbial metabolites produced by the microorganisms and/or any residual nutrients (page 9, paragraph 135).
Finding a prima facie obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Wozniak and Zorner et al. and use a mycorrhizal fungi in the compositions taught by Wozniak. Wozniak teaches a method of improving plant yield, the method comprising applying a bacterial fermentation product to a seed, seedling, plant grown from the seed or soil, the bacterial fermentation product comprising liquid fermentation culture medium or broth; lysed bacteria, and fermentation metabolites, applying to the seed, seedling, the plant or soil. Wozniak teaches in at least one embodiment the fermentation product includes a whole-cell lysed microorganism that is a lysed lactic acid bacteria. Wozniak further teaches that the fermentation product include one or more additional microbial, including fungal species or strains. Zorner et al. teach compositions and methods for enhancing plant health, growth, and/or yields of crop plants by applying a microbial combination to the roots and/or soil in which the plant is growing. Zorner et al. teach the soil treatment compositions comprise one or more mycorrhizal fungi and one or more additional microorganisms not categorized as mycorrhizal fungi. Zorner et al. teach the microbe-based product may also comprise one or more components of a microbe-based composition that have been processed in some way such as, but not limited to, filtering, centrifugation, lysing, drying, purification and the like. Since Wozniak teaches that a fungal species can be added to the microbial fermentation product, one of ordinary skill in the art would have been motivated to add the mycorrhizal fungi taught by Zorner et al. that are known to enhance plant health, growth, and/or yield of crop plants, with a reasonable expectation of success, to further enhance the yield of plants.
Regarding the use of Rhizophaus sp., Rhizophagus irregularis, as claimed in claims 2 and 6, or Glomus sp., Glomus intraradices and/or Glomus mosseae, as claimed in claims 5 and 6, Zorner et al. teach non-limiting examples of mycorrhizal fungi include Rhizophagus spp. (e.g., R. irregularis). Zorner et al. teach in certain preferred embodiments, the subject invention utilizes endomycorrhizal fungi, including fungi from the phylum Glomeromycota and the genera Glomus, Gigaspora, Acaulospora, and Entrophospora. Examples of endomycorrhizal fungi include, but are not limited to, Glomus aggregatum, Glomus etunicatum, Glomus fasciculatum, Glomus intraradices (Rhizophagus irregularis), Glomus mosseae (Funneliformis mosseae), Glomus versiforme, Scutellospora heterogama, and Sclerocystis spp. One of ordinary skill in the art would have found it obvious to use any of the mycorrhizal fungi taught by Zorner et al., such as Glomus intraradices and Glomus mosseae, as the fungal species taught by Wozniak, with a reasonable expectation of success, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Claims 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Wozniak (WO 2020/118278) in view of Zorner et al. (US 2023/0040362) as applied to claims 1, 2, 5-7, and 9-20 above, and further in view of Drumonde (WO 2020145834) (Derwent for English Translation). Ren et al. (CN112385507A) Translation from FIT Database used as English Translation.
Applicant’s Invention
Applicant claims a composition comprising: (i) a mycorrhizal fungi component comprising one or more mycorrhizal fungal species; and (ii) a biostimulant component comprising a microbial fermentation product, the microbial fermentation product comprising: a whole culture lysate of a lactic acid bacterial fermentation culture, the whole culture lysate comprising: lysed lactic acid bacteria; fermentation medium; and fermentation metabolites, wherein the microbial fermentation product is devoid of living and/or viable microorganisms. Applicant claims the one or more fungal species comprises Claroideoglomus sp. or Claroideoglomus etunicatum. Applicant claims the one or more fungal species comprise (i) Rhizophagus sp., Rhizophagus irregularis, Rhizophagus aggegatus, and/or Rhizophagus clarus, and (ii) Claroideoglomus sp. or Claroideoglomus etunicatum.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Wozniak and Zorner et al. with respect to the 35 U.S.C. 103(a) rejection is hereby incorporated and are therefore applied in the instant rejection as discussed above.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Wozniak and Zorner et al. do not specifically disclose the fungal species comprise Claroideoglomus sp. or Claroideoglomus etunicatum, as claimed in claim 3 or the fungal species comprise (i) Rhizophagus sp., Rhizophagus irregularis, Rhizophagus aggegatus, and/or Rhizophagus clarus, and (ii) Claroideoglomus sp. or Claroideoglomus etunicatum, as claimed in claim 4. It is for this reason Drumonde is added as the secondary reference.
Drumonde teaches a method for producing a biofertilizer comprises at least four steps, specifically i) production of pure cultures or mother cultures of at least one of the species of arbuscular mycorrhiza fungi…iv.) preparation of a biofertilizer that includes just one or an equal-parts mixture of each the of the respective multi-spore cultures of the species of arbuscular mycorrhiza fungi produced in the previous step (page 1, Abstract). Drumonde teaches the biofertilizer is presented as a solid substrate comprises 5 species of Arbuscular Mycorrhizal Fungi (EMA) namely: Cetraspora sp.; Claroideoglomus etunicatum; Funneliformis mosseae; Rhizophagus sp.; and Gigaspora sp. (pages 1 and 2, Scope of the Invention; page 6, Detailed Description of the Invention).
Finding a prima facie obviousness Rationale and Motivation
(MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Wozniak, Zorner et al. and Drumonde and use Claroideoglomus sp. or Claroideoglomus etunicatum as the one or more fungal species in the composition, a claimed in claim 3. Wozniak teaches a method of improving plant yield, the method comprising applying a bacterial fermentation product to a seed, seedling, plant grown from the seed or soil, the bacterial fermentation product comprising liquid fermentation culture medium or broth; lysed bacteria, and fermentation metabolites, applying to the seed, seedling, the plant or soil. Wozniak teaches in at least one embodiment the fermentation product includes a whole-cell lysed microorganism that is a lysed lactic acid bacteria. Wozniak further teaches that the fermentation product include one or more additional microbial, including fungal species or strains. Zorner et al. teach “mycorrhizal fungi” includes any species of fungus that forms a non-parasitic mycorrhizal relationship with a plant's roots. The fungi can be ectomycorrhizal fungi and/or endomycorrhizal fungi, including subtypes thereof (e.g., arbuscular, ericoid, and orchid mycorrhizae). Since Wozniak teaches that a fungal species can be added to the microbial fermentation product, one of ordinary skill in the art would have been motivated to add the mycorrhizal fungi taught by Zorner et al. and/or Drumonde, including Claroideoglomus etunicatum that is known to enhance plant health, growth, and/or yield of crop plants, with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to use any mycorrhizal fungal species, such as Claroideoglomus etunicatum because Zorner et al. teach the invention is suitable for all arbuscular mycorrhizal fungi, not limited to Rhizophagusirregularis. Drumonde teaches the biofertilizer is presented as a solid substrate comprises 5 species of Arbuscular Mycorrhizal Fungi (EMA) namely: Cetraspora sp.; Claroideoglomus etunicatum; Funneliformis mosseae; Rhizophagus sp.; and Gigaspora sp. As such, the skilled artisan would have been motivated to use known ectomycorrhizal fungi that are used to formulate biofertilizers, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007).
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Wozniak, Zorner et al., and Drumonde and use a combination of fungal species comprising (i) Rhizophagus sp., Rhizophagus irregularis, Rhizophagus aggegatus, and/or Rhizophagus clarus, and (ii) Claroideoglomus sp. or Claroideoglomus etunicatum. Since Wozniak teaches that a fungal species can be added to the microbial fermentation product, one of ordinary skill in the art would have been motivated to add the mycorrhizal fungi taught by Zorner et al. and/or Drumonde that is known to enhance plant health, growth, and/or yield of crop plants, with a reasonable expectation of success. Zorner et al. teach “mycorrhizal fungi” includes any species of fungus that forms a non-parasitic mycorrhizal relationship with a plant's roots. The fungi can be ectomycorrhizal fungi and/or endomycorrhizal fungi, including Rhizophagus spp. (R. irregularis). Drumonde teaches the biofertilizer is presented as a solid substrate comprises 5 species of Arbuscular Mycorrhizal Fungi (EMA) namely: Cetraspora sp.; Claroideoglomus etunicatum; Funneliformis mosseae; Rhizophagus sp.; and Gigaspora sp. One of ordinary skill in the art would have been motivated to combine known ectomycorrhizal fungi because the combination of ectomycorrhizal is known in the art as taught by Drumonde, a composition comprising Claroideoglomus etunicatum and Rhizophagus sp. In addition, in view of In re Kerkhoven, 205 USPQ 1069 (C.C.P.A. 1980), it is prima facie obvious to combine two or more compositions each of which is taught by prior art to be useful for the same purpose in order to form a third composition that is to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in prior art, thus claims that requires no more than mixing together two or three ectomycorrhizal fungal species set forth prima facie obvious subject matter.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Response to Arguments
Applicant’s arguments with respect to claims 1-7 and 9-20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
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/ANDRIAE M HOLT/Examiner, Art Unit 1614
/TRACY LIU/Primary Examiner, Art Unit 1614
