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 .
The preliminary amendment is received.
Claims 1-115 were canceled by applicant.
New claims 116-138 are added.
Claims 116-138 are pending in this application and are being examined.
Objection(s):
Claims(s):
Claims 117, 118, 119 and 120 are objected to because of the following informalities:
In claim 117, line 3, replace “Methylobacterium” with --Methylobacterium--.
In claim 118, line 2, 3 and 5, replace “;” (all occurrences) with --,--, and line 4, before fungal delete “or”.
In claim 119, before insecticide, insert –an--.
In claim 120, replace “M” (all occurrences” with –M. --.
Appropriate correction is required.
Specification:
a):
The use of the term “Pinolene” in the specification (paragraph [0070]), 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 ™, 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.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 20 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
The invention appears to employ a specific strain: Methylobacterium sp. strain LMG6378.
It is not clear if the written description is sufficiently repeatable to avoid the need for a deposit.
Further it is unclear if the starting materials were readily available to the public at the time of invention.
Applicant or applicant's representative may provide assurance of compliance with the requirements of 35 U.S.C § 112, first paragraph, in the following manner.
SUGGESTION FOR DEPOSIT OF BIOLOGICAL MATERIAL
A declaration by applicant, assignee, or applicant's agent identifying a deposit of biological material and averring the following may be sufficient to overcome an objection and rejection based on a lack of availability of biological material.
1. Identifies declarant.
2. States that a deposit of the material has been made in a depository affording permanence of the deposit and ready accessibility thereto by the public if a patent is granted. The depository is to be identified by name and address.
3. States that the deposited material has been accorded a specific (recited) accession number.
4. States that all restriction on the availability to the public of the material so deposited will be irrevocably removed upon the granting of a patent.
5. States that the material has been deposited under conditions that access to the material will be available during the pendency of the patent application to one determined by the Commissioner to be entitled thereto under 37 CFR 1.14 and 35 U.S.C § 122.
6. States that the deposited material will be maintained with all the care necessary to keep it viable and uncontaminated for a period of at least five years after the most recent request for the furnishing of a sample of the deposited microorganism, and in any case, for a period of at least thirty (30) years after the date of deposit for the enforceable life of the patent, whichever period is longer.
7. That he/she declares further that all statements made therein of his/her own knowledge are true and that all statements made on information and belief are believed to be true, and further that these statements were made with knowledge that willful false statements and the like so made are punishable by fine or imprisonment, or both, under section 1001 of Title 18 of the United States Code and that such willful false statements may jeopardize the validity of the instant patent application or any patent issuing thereon.
Alternatively, it may be averred that deposited material has been accepted for deposit under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the purpose of Patent Procedure (e.g. see 961 OG 21, 1977) and that all restrictions on the availability to the public of the material so deposited will be irrevocably removed upon the granting of a patent.
Additionally, the deposit must be referred to in the body of the specification and be identified by deposit (accession) number, date of deposit, name and address of the depository and the complete taxonomic description.
Copy of deposit receipt is required.
Improper Markush Grouping Rejection:
Where a single claim defines alternatives of a Markush group, the requirement of a technical interrelationship and the same or corresponding special technical features as defined in Rule 13.2, is considered met when the alternatives are of a similar nature. When the Markush grouping is for alternatives of chemical compounds, the alternatives are regarded as being of a similar nature where the following criteria are fulfilled:
(A) all alternatives have a common property or activity; AND
(B)(1) a common structure is present, that is, a significant structural element is shared by all of the alternatives; OR
(B)(2) in cases where the common structure cannot be the unifying criteria, all alternatives belong to a recognized class of chemical compounds in the art to which the invention pertains.
The phrase “significant structural element is shared by all of the alternatives” refers to cases where the compounds share a common chemical structure which occupies a large portion of their structures, or in case the compounds have in common only a small portion of their structures, the commonly shared structure constitutes a structurally distinctive portion in view of existing prior art, and the common structure is essential to the common property or activity.
The phrase “recognized class of chemical compounds” means that there is an expectation from the knowledge in the art that members of the class will behave in the same way in the context of the claimed invention, i.e. each member could be substituted one for the other, with the expectation that the same intended result would be achieved.
Claims 117, 118 and 132 are rejected on the basis that it contains an improper Markush grouping of alternatives. See In re Harnisch, 631 F.2d 716, 721-22 (CCPA 1980) and Ex parte Hozumi, 3 USPQ2d 1059, 1060 (Bd. Pat. App. & Int. 1984). A Markush grouping is proper if the alternatives defined by the Markush group (i.e., alternatives from which a selection is to be made in the context of a combination or process, or alternative chemical compounds as a whole) share a “single structural similarity” and a common use. A Markush grouping meets these requirements in two situations. First, a Markush grouping is proper if the alternatives are all members of the same recognized physical or chemical class or the same art-recognized class, and are disclosed in the specification or known in the art to be functionally equivalent and have a common use. Second, where a Markush grouping describes alternative chemical compounds, whether by words or chemical formulas, and the alternatives do not belong to a recognized class as set forth above, the members of the Markush grouping may be considered to share a “single structural similarity” and common use where the alternatives share both a substantial structural feature and a common use that flows from the substantial structural feature. See MPEP § 706.03(y).
The Markush grouping in claim 117, i.e., “adjuvant, excipient, suspensible particles with adherent Methylobacterium, acidifying agent, buffering agent, antifoaming agent, compatibility agent, drift- reducing agent, dye, water conditioner, surfactant, dispersant, anticaking-agent, wetter, spreader, penetrant, and humectant” is improper because the alternatives defined by the Markush grouping do not share both a single structural similarity and a common use for the following reasons:
In this case, for example, a surfactant is a surface active agent, while a buffering agent is an agent that maintains pH level, and so on, as such the alternatives defined by the Markush grouping in the claims 117 and 132 do not all share both a single structural similarity and a common use.
The Markush grouping in claim 118, i.e., “dimethopolysiloxane, agar, polymer or polymeric beads;, insoluble or only partially soluble salt crystal; vegetable oil, esterified vegetable oil, inactivated microbial cell, fungal cell, microbial spore, or fungal spore, diatom shell; quiescent microbial cell, fungal cell, microbial spore, or fungal spore; cellular debris of microbial origin; fine-grain inorganic solids, calcium carbonate, calcium bentonite, kaolin, alginates, dextrins, malto-dextrins, fats, oils, proteins, soybean-based protein polymers, soybean-based copolymers, starches, zeins, gelatin, carboxymethylcellulose, chitosan, water-soluble waxes, and anti-foaming agents”,
In this case, for example, fungal cell is a eukaryotic organism, while calcium carbonate is a chemical common is rocks, and so on, as such the alternatives defined by the Markush grouping in the claim 118 do not all share both a single structural similarity and a common use.
The Markush grouping in claim 132, i.e., “adjuvant, excipient, suspensible particles with adherent Methylobacterium, acidifying agent, buffering agent, antifoaming agent, compatibility agent, drift-reducing agent, dye, water conditioner, surfactant, dispersant, anticaking-agent, wetter, spreader, penetrant, and humectant” is improper because the alternatives defined by the Markush grouping do not share both a single structural similarity and a common use for the following reasons:
In this case, for example, a surfactant is a surface active agent, while a buffering agent is an agent that maintains pH level, and so on, as such the alternatives defined by the Markush grouping in the claim 132 do not all share both a single structural similarity and a common use.
To overcome this rejection, Applicant may set forth each alternative (or grouping of patentably indistinct alternatives) within an improper Markush grouping in a series of independent or dependent claims and/or present convincing arguments that the group members recited in the alternative within a single claim in fact share a single structural similarity as well as a common use
Double Patenting Rejection:
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 116-118, 120, 121 and 128-131 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 5, 8, 9 and 11-13 of U.S. Patent No. 12,514,252 B2. Although the claims at issue are not identical, they are not patentably distinct from each other in view of the side by side comparison below of the limitations of the claimed composition, the plant, and the method to make the composition of claims 116-118, 120, 121 and 128-131 of instant application and method of claims 1, 2, 5, 8, 9 and 11-13 of U.S. Patent No. 12,514,252 B2.
A)
Claims 1-24 of U.S. Patent No. 12,514,252 B2:
Claims of instant Application:
1. A fermentation product comprising one or more solid substance and one or more Methylobacterium obtained by fermentation, a) wherein said fermentation product is essentially free of contaminating microorganisms other than the Methylobacterium, b) wherein said Methylobacterium has a titer of at least 5×10.sup.8 colony-forming units per gram of solid substance to at least about 5×10.sup.13 colony-forming units of Methylobacterium per gram of solid substance, and c) wherein said one or more solid substance is an adjuvant.
116. A composition comprising a fermentation product that comprises: (i) an exogenous solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance as an axenic culture that is essentially free of contaminating microorganisms; and (ii) an agriculturally acceptable adjuvant, an agriculturally acceptable excipient, or a combination thereof.
121. The composition of claim 116, wherein the solid substance comprises a plurality of particles with adherent Methylobacterium and the Methylobacterium titer of said particles is at least about 5x 108 colony-forming units per gram of particles to at least about 5x 1013 colony-forming units of Methylobacterium per gram of particles.
2. The fermentation product of claim 1, wherein the solid substance is an adjuvant selected from the group consisting of: non-ionic surfactant, anionic surfactant, cationic surfactant, amphoteric surfactant, organo-silicate surfactants, acidified surfactants, latex-based substances, terpene, pyrrolidone-based substance, mineral oil, vegetable oil, esterified vegetable oil, organo-silicate surfactant, acidified surfactant, ammonium sulphate, menthane-based substance, glycerol, propylene glycol, and diethyl glycol.
117. The composition of claim 116, wherein said exogenous solid substance is selected from the group consisting of: adjuvant, excipient, suspensible particles with adherent Methylobacterium, acidifying agent, buffering agent, antifoaming agent, compatibility agent, drift-reducing agent, dye, water conditioner, surfactant, dispersant, anticaking-agent, wetter, spreader, penetrant, and humectant.
5. The fermentation product of claim 1, wherein the solid substance is an adjuvant selected from the group consisting of: dimethopolysiloxane, agar, polymer or polymeric beads, insoluble or only partially soluble salt crystal, vegetable oil, esterified vegetable oil, inactivated microbial cell, fungal cell, microbial spore, or fungal spore, diatom shell, quiescent microbial cell, fungal cell, microbial spore, or fungal spore, cellular debris of microbial origin, fine-grain inorganic solids, calcium carbonate, calcium bentonite, kaolin, alginates, dextrins, malto-dextrins, fats, oils, proteins, soybean-based protein polymers, soybean-based copolymers, starches, zeins, gelatin, carboxymethylcellulose, chitosan, water-soluble waxes, and anti-foaming agents.
118. The composition of claim 116, wherein the exogenous solid substance is selected from the group consisting of: dimethopolysiloxane, agar, polymer or polymeric beads;, insoluble or only partially soluble salt crystal; vegetable oil, esterified vegetable oil, inactivated microbial cell, fungal cell, microbial spore, or fungal spore, diatom shell; quiescent microbial cell, fungal cell, microbial spore, or fungal spore; cellular debris of microbial origin; fine-grain inorganic solids, calcium carbonate, calcium bentonite, kaolin, alginates, dextrins, malto-dextrins, fats, oils, proteins, soybean-based protein polymers, soybean-based copolymers, starches, zeins, gelatin, carboxymethylcellulose, chitosan, water-soluble waxes, and anti-foaming agents.
8. The fermentation product of claim 1, wherein said Methylobacterium is selected from the group consisting of: M. aminovorans, M. chloromethanicum, M. dichloromethanicum, M. extorquens, M. fujisawaense, M. mesophilicum, M. organophilum, M. radiotolerans, M. rhodesianum, M. rhodinum, M. thiocyanatum, M. nodulans, M. cerastii, M. gossipiicola, Methylobacterium sp. strain LilIG6378, M. phyllosphaerae, M. oryzae, M. platani, M. populi, and M. zatmanii.
120. The composition of claim 116, wherein the Methylobacterium is selected from the group consisting of: M aminovorans, M chloromethanicum, M dichloromethanicum, M. extorquens, M fujisawaense, M mesophilicum, M nodulans M. organophilum, M radiotolerans, M rhodesianum, M rhodinum, M thiocyanatum, M cerastii, M gossipiicola, Methylobacterium sp. strain LMG6378, M. phyllosphaerae, M. oryzae, M. platani, M. populi, and M zatmanii.
9. A plant or plant part that is at least partially coated with a composition comprising one or more fermentation product of claim 1; and one or more additional composition selected from the group consisting of: sticker, extender, humectant, drift-reducer, water conditioner, and/or coating promoter; and one or more agriculturally acceptable excipient.
128. A plant or plant part that is at least partially coated with a composition of claim 116.
11. The plant part of claim 5, wherein the plant part is a seed.
130. The plant or plant part of claim 128, wherein the plant or plant part is selected from the group consisting of: whole plant, seed, stem, root, flower, cotyledon, a coleoptile, fruit, and leaf.
12. The plant or plant part of claim 5, wherein said plant or plant part is selected from the group consisting of corn, Brassica sp., alfalfa, rice, rye, sorghum, pearl millet, proso millet, foxtail millet, finger millet, sunflower, safflower, soybean, tobacco, potato, peanuts, cotton, sweet potato, cassava, coffee, coconut, pineapple, citrus trees, cocoa, tea, banana, avocado, fig, guava, mango, olive, papaya, cashew, macadamia, almond, sugar beet, sugarcane, oat, barley, tomato, lettuce, green bean, lima bean, pea, cucurbit, ornamental, and conifer.
129. The plant or plant part of claim 128, wherein said plant part is from a plant selected from the group consisting of: Brassica sp., alfalfa, rice, rye, sorghum, pearl millet, proso millet, foxtail millet, finger millet, sunflower, safflower, soybean, tobacco, potato, peanuts, cotton, sweet potato, cassava, coffee, coconut, pineapple, citrus trees, cocoa, tea, banana, avocado, fig, guava, mango, olive, papaya, cashew, macadamia, almond, sugar beet, sugarcane, oat, barley, tomato, lettuce, green bean, lima bean, pea, cucurbit, ornamental, and conifer.
13. A method for obtaining a Methylobacterium preparation comprising: a) inoculating a monoculture of a Methylobacterium strain into media that comprises a liquid phase and a solid phase to an initial titer of at least 1×10.sup.5 colony-forming units per milliliter of the Methylobacterium in the media, wherein the liquid and solid phase were sterile prior to inoculation of the Methylobacterium strain, wherein said solid phase comprises a plurality of particles which are suspended in the liquid phase, b) growing the monoculture of a Methylobacterium strain in the media that comprises a liquid phase and a solid phase to provide a fermentation broth, wherein the Methylobacterium titer in the fermentation broth is increased at least 1,000-fold from the initial titer of Methylobacterium in the inoculated media of step (i); and c) harvesting the Methylobacterium strain grown in the media, thereby obtaining the Methylobacterium preparation; i. wherein said fermentation product is essentially free of contaminating microorganisms other than the Methylobacterium, and ii. wherein said Methylobacterium has a titer of at least 5×10.sup.8 colony-forming units per gram of solid substance to at least about 5×10.sup.13 colony-forming units of Methylobacterium per gram of solid substance, and iii. wherein said one or more solid substance is an adjuvant.
131. A method to make a composition comprising combining: a) a fermentation product that comprises (i) an exogenous solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance as an axenic culture that is essentially free of contaminating microorganisms; and (ii) an agriculturally acceptable adjuvant, an agriculturally acceptable excipient, or a combination thereof, and b) an agent selected from the group consisting of: insecticide, a fungicide, a nematocide, and a bacteriocide.
Therefore, in view of the above, it would have been obvious to a person of ordinary skill in the art to apply the teachings of at least claims 1, 2, 5, 8, 9 and 11-13 of U.S. Patent No. 12,514,252 B2 in order to provide the claimed composition, the plant, and the method to make the composition of claims 116-118, 120, 121 and 128-131 of instant application.
B)
Claims 116, 119, 121-128 and 134 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 2, 4, 20 and 21 of U.S. Patent No. 10,757,946 B2.
Although the claims at issue are not identical, they are not patentably distinct from each other in view of the side by side comparison below of the limitations of the claimed composition to make the composition of claims 116, 119, 121-128 and 134 of instant application and method of claims 1, 2, 4, 20 and 21 of U.S. Patent No. 10,757,946 B2.
Claims of U.S. Patent No. 10,757,946 B2
Claims of instant application:
1. A dried composition that is substantially free of water, essentially free of water, or essentially dry, wherein said composition comprises a mono-culture of Methylobacterium at a titer of at least 5×10.sup.8 colony forming units per gram of the dried composition and sucrose, wherein the Methylobacterium is selected from the group consisting of NLS0017 (NRRL B-50931), NLS0020 (NRRL B-50930), NLS0021 (NRRL B-50939), NLS0037 (NRRL B-50941), NLS0038 (NRRL B-50942), NLS0042 (NRRL B-50932), NLS0046 (NRRL B-50929), NLS0062 (NRRL B-50937), NLS0064 (NRRL B-50938), NLS0065 (NRRL B-50935), NLS0066 (NRRL B-50940), NLS0068 (NRRL B-50934), NLS0069 (NRRL B-50936), and NLS0089 (NRRL B-50933) and wherein said composition is prepared by drying a biphasic mixture by lyophilization or spray drying, wherein said biphasic mixture comprises: (i) a mono-culture of Methylobacterium adhered to an insoluble or partially soluble particulate solid substance comprising a plurality of particles of about 1 micron to about 1000 microns in average length or average diameter by having been axenically grown on the solid substance, wherein said mono-culture-of Methylobacterium is essentially free of contaminating microorganisms and can colonize a plant and/or a plant part, and (ii) sucrose at a concentration of about 4.6% (w/v) to 7% (w/v), and wherein at least about 50%, 60%, or 70% of Methylobacterium cells in the dried composition are viable after at least 75 days at room temperature.
116. A composition comprising a fermentation product that comprises: (i) an exogenous solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance as an axenic culture that is essentially free of contaminating microorganisms; and (ii) an agriculturally acceptable adjuvant, an agriculturally acceptable excipient, or a combination thereof.
120. The composition of claim 116, wherein the Methylobacterium is selected from the group consisting of: M aminovorans, M chloromethanicum, M dichloromethanicum, M. extorquens, M fujisawaense, M mesophilicum, M nodulans M. organophilum, M radiotolerans, M rhodesianum, M rhodinum, M thiocyanatum, M cerastii, M gossipiicola, Methylobacterium sp. strain LMG6378, M. phyllosphaerae, M. oryzae, M. platani, M. populi, and M zatmanii.
Note: paragraph (5) of U.S. Patent No. 10,757,946 B2, defines the Methylobacterium as M aminovorans, M chloromethanicum, M dichloromethanicum, M. extorquens, M fujisawaense, M mesophilicum, M nodulans M. organophilum, M radiotolerans, M rhodesianum, M rhodinum, M thiocyanatum, M cerastii, M gossipiicola, Methylobacterium sp. strain LMG6378, M. phyllosphaerae, M. oryzae, M. platani, M. populi, and M zatmanii
2. The composition of claim 1, wherein the solid substance has a Methylobacterium titer of 5×10.sup.8, 1×10.sup.9, or 1×10.sup.10 colony-forming units per gram of the solid substance to about 5×10.sup.13 colony-forming units of Methylobacterium per gram of the solid substance.
121. The composition of claim 116, wherein the solid substance comprises a plurality of particles with adherent Methylobacterium and the Methylobacterium titer of said particles is at least about 5x 108 colony-forming units per gram of particles to at least about 5x 1013 colony-forming units of Methylobacterium per gram of particles.
4. The composition of claim 1, wherein the composition further comprises an agriculturally acceptable adjuvant, agriculturally acceptable excipient, a pesticide, a bacteriostatic agent, a biopesticidal microorganism, or a plant beneficial microorganism.
119. The composition of claim 116, wherein the composition further comprises one or more agent selected from the group consisting of: insecticide, a fungicide, a nematicide, and a bactericide.
20. The composition of claim 4, wherein the adjuvant comprises polyvinyl acetate, polyvinyl acetate copolymer, hydrolyzed polyvinyl acetate, polyvinylpyrrolidone-vinyl acetate copolymer, polyvinyl alcohol, polyvinyl alcohol copolymer, polyvinyl methyl ether, polyvinyl methyl ether-maleic anhydride copolymer, wax, latex polymer, a cellulose, ethylcelluloses, methylcellulose, hydroxy methylcellulose, hydroxypropylcellulose, hydroxymethylpropylcellulose, polyvinyl pyrrolidone, alginate, dextrin, malto-dextrin, polysaccharides, fat, oil, protein, karaya gum, jaguar gum, tragacanth gum, polysaccharide gum, mucilage, gum arabic, shellac, vinylidene chloride polymer and copolymers soybean-based protein polymer and copolymer, lignosulfonate, acrylic copolymers, starches, polyvinylacrylate, zein, gelatin, carboxymethylcellulose, chitosan, polyethylene oxide, acrylimide polymer, and acrylimide copolymer, polyhydroxyethyl acrylate, methylacrylimide monomer, ethylcellulose, polychloroprene, or a mixture thereof.
134. The method of claim 131, wherein said composition further comprises an agriculturally-acceptable excipient selected from the group consisting of: activated carbon, alginates, calcium bentonite, calcium carbonate, china clay, clays, diatomaceous earth, fats, fine-grain inorganic solids, kaolin, mica, montmorillonite, oils, perlite, proteins, silicas, soybean-based protein polymers, soybean-based protein co-polymers, talc, vinyl polymers, vinyl copolymers, vermiculite, and waxes.
21. The composition of claim 4, wherein the pesticide is selected from the group consisting of an insecticide, a fungicide, a nematocide, and a bacteriocide.
119. The composition of claim 116, wherein the composition further comprises one or more agent selected from the group consisting of: insecticide, a fungicide, a nematicide, and a bactericide.
Regarding the limitations of claims 122-127, 133 and 135-138, the specification of U.S. Patent No. 10,757,946 paragraph (44) defines the microorganisms of pre-determined identity other than Methylobacterium, as “(44) In certain embodiments, the fermentation broth, fermentation broth product, or compositions provided herein can further comprise one or more introduced microorganisms of pre-determined identity other than Methylobacterium. Other microorganisms that can be added include, but are not limited to, microorganisms that are biopesticidal or provide some other benefit when applied to a plant or plant part. Biopesticidal or otherwise beneficial microorganisms thus include, but are not limited to, various Bacillus sp., Pseudomonas sp., Coniothyrium sp., Panioea sp., Streptomyces sp., and Trichoderma sp. Microbial biopesticides can be a bacterium, fungus, virus, or protozoan. Particularly useful biopesticidal microorganisms include various Bacillus sublilis, Bacillus thuringiensis, Bacillus pumilis, Pseudomonas syringae, Trichoderma harzianum, Trichoderma virens, and Streptomyces lydicus strains. Other microorganisms that are added can be genetically engineered or naturally occurring isolates that are available as pure cultures. In certain embodiments, it is anticipated that the bacterial or fungal microorganism can be provided in the fermentation broth, fermentation broth product, or composition in the form of a spore. Still other microorganisms that can be added include, but are not limited to, microorganisms that are photosynthetic microorganisms. Such photosynthetic organisms include, but are not limited to, algae. Such algae can include, but are not limited to, algae of the genii of Prolococcus, Ulva, Codium, Enleromorpha, Neochloris, and/or Chlamydomonas”. T
In addition, regarding claim 128 as indicated above claim 1 of U.S. Patent No. 10,757,946 the microorganisms can colonize a plant and/or a plant part as such coating a plant or plant part wit the composition would have bene obvious.
Therefore, in view of the above, it would have been obvious to a person of ordinary skill in the art to apply the teachings of at least claims 1, 2, 4, 20 and 21 of U.S. Patent No. 10,757,946 B2 in order to provide the claimed composition to make the composition of claims 116, 119, 121-128 and 133-138 of instant application.
C)
Claims 116, 117, 118, 120 and 128 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 5, 7, 10, 16 and 17 of U.S. Patent No. 9,181,541 B2,
Although the claims at issue are not identical, they are not patentably distinct from each other in view of the side by side comparison below of the limitations of claimed composition and plant of instant application and the claimed composition of claims 1, 5, 7, 10, 16 and 17 of U.S. Patent No. 9,181,541 B2.
Claims of U.S. Patent No. 9,181,541 B2:
Claims of instant application:
1. A fermentation product comprising a solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance, wherein said solid substance comprises a plurality of particles of about 1 micron to about 1000 microns in average length or average diameter and is not a photosynthetic microorganism, and wherein said fermentation product is essentially free of contaminating microorganisms other than the Methylobacterium, and wherein the Methylobacterium titer of said solid substance is at least 5×10.sup.8 colony-forming units per gram of solid to at least about 5×10.sup.13 colony-forming units of Methylobacterium per gram of solid.
7. The fermentation product of claim 1, wherein said solid substance is an agriculturally acceptable adjuvant or agriculturally acceptable excipient.
116. A composition comprising a fermentation product that comprises: (i) an exogenous solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance as an axenic culture that is essentially free of contaminating microorganisms; and (ii) an agriculturally acceptable adjuvant, an agriculturally acceptable excipient, or a combination thereof.
121. The composition of claim 116, wherein the solid substance comprises a plurality of particles with adherent Methylobacterium and the Methylobacterium titer of said particles is at least about 5x 108 colony-forming units per gram of particles to at least about 5x 1013 colony-forming units of Methylobacterium per gram of particles.
5. The fermentation product of claim 1, wherein said solid substance is selected from the group consisting of a polysaccharide, diatomaceous earth, a salt crystal, and combinations thereof.
118. The composition of claim 116, wherein the exogenous solid substance is selected from the group consisting of: dimethopolysiloxane, agar, polymer or polymeric beads;, insoluble or only partially soluble salt crystal; vegetable oil, esterified vegetable oil, inactivated microbial cell, fungal cell, microbial spore, or fungal spore, diatom shell; quiescent microbial cell, fungal cell, microbial spore, or fungal spore; cellular debris of microbial origin; fine-grain inorganic solids, calcium carbonate, calcium bentonite, kaolin, alginates, dextrins, malto-dextrins, fats, oils, proteins, soybean-based protein polymers, soybean-based copolymers, starches, zeins, gelatin, carboxymethylcellulose, chitosan, water-soluble waxes, and anti-foaming agents.
16. The fermentation product of claim 10, wherein said Methylobacterium is selected from the group consisting of M. exiorquens, M. nodulans, M. mesophilicum, M. cerastii, M. gossipiicola, Methylobacterium sp. strain LMG6378, M. phyllosphaerae, M. oryzae, M. platani, and M. populi.
120. The composition of claim 116, wherein the Methylobacterium is selected from the group consisting of: M aminovorans, M chloromethanicum, M dichloromethanicum, M. extorquens, M fujisawaense, M mesophilicum, M nodulans M. organophilum, M radiotolerans, M rhodesianum, M rhodinum, M thiocyanatum, M cerastii, M gossipiicola, Methylobacterium sp. strain LMG6378, M. phyllosphaerae, M. oryzae, M. platani, M. populi, and M zatmanii.
10. The fermentation product of claim 1, wherein said Methylobacterium can colonize a plant or plant part.
17. The fermentation product of claim 1, wherein said Methylobacterium is an isolate from a plant or plant part.
128. A plant or plant part that is at least partially coated with a composition of claim 116.
Regarding claim 117, it should be noted that the specification of the U.S. Patent No. 9,181,541, defines the “agriculturally acceptable adjuvant or an agriculturally acceptable excipient” as non-ionic surfactant, anionic surfactant, cationic surfactant, amphoteric surfactant, organo-silicate surfactants, acidified surfactant, etc. (See for example, paragraph 49).
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to apply the teachings of the claimed fermentation product of at least claims 1, 5, 7, 10, 16 and 17 of U.S. Patent No. 9,181,541 B2, in order to provide the claimed composition and plant of claims 116, 117, 118, 120 and 128 of instant application. Because, claims of U.S. Patent No. 9,181,541 B2, teach a fermentation product comprising a solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance, wherein said solid substance comprises a plurality of particles of about 1 micron to about 1000 microns in average length or average diameter and is not a photosynthetic microorganism, and wherein said fermentation product is essentially free of contaminating microorganisms other than the Methylobacterium, and wherein the Methylobacterium titer of said solid substance is at least 5×10.sup.8 colony-forming units per gram of solid to at least about 5×10.sup.13 colony-forming units of Methylobacterium per gram of solid, and the claimed solid substances.
D)
Claims 128-130 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 2, 14 and 27 of U.S. Patent No. 9,845,462 B2. Although the claims at issue are not identical, they are not patentably distinct from each other in view of the side by side comparison below of the limitations of claimed plant or plant part and product and the claimed method for treating a plant or a plant part with Methylobacterium of instant application and claimed plant or plant part treated with Methylobacterium as disclosed by at least claims 1, 2, 14 and 27 of U.S. Patent No. 9,845,462 B2.
Claims of U.S. Patent No. 9,845,462 B2:
Claims of instant application:
1. A plant that is at least partially coated with a composition comprising a fermentation product that comprises: (i) an exogenous solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance as an axenic culture that is essentially free of contaminating microorganisms; and (ii) an agriculturally acceptable adjuvant, an agriculturally acceptable excipient, or a combination thereof.
14. A plant part that is at least partially coated with a composition that comprises a fermentation product comprising: (i) an exogenous solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance as an axenic culture that is essentially free of contaminating microorganisms; and (ii) an agriculturally acceptable adjuvant, an agriculturally acceptable excipient, or a combination thereof.
128. A plant or plant part that is at least partially coated with a composition (of claim 116) comprising a fermentation product that comprises: (i) an exogenous solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance as an axenic culture that is essentially free of contaminating microorganisms; and (ii) an agriculturally acceptable adjuvant, an agriculturally acceptable excipient, or a combination thereof.
27. The plant part of claim 14, wherein the plant part is a seed.
130. The plant or plant part of claim 128, wherein the plant or plant part is selected from the group consisting of: whole plant, seed, stem, root, flower, cotyledon, a coleoptile, fruit, and leaf.
2. The plant part of claim 14, wherein said plant part is from a plant selected from the group consisting of a corn, Brassica sp., alfalfa, rice, rye, sorghum, pearl millet, proso millet, foxtail millet, finger millet, sunflower, safflower, soybean, tobacco, potato, peanuts, cotton, sweet potato, cassava, coffee, coconut, pineapple, citrus trees, cocoa, tea, banana, avocado, fig, guava, mango, olive, papaya, cashew, macadamia, almond, sugar beet, sugarcane, oat, barley, tomato, lettuce, green bean, lima bean, pea, cucurbit, ornamental, and conifer plant.
129. The plant or plant part of claim 128, wherein said plant part is from a plant selected from the group consisting of: Brassica sp., alfalfa, rice, rye, sorghum, pearl millet, proso millet, foxtail millet, finger millet, sunflower, safflower, soybean, tobacco, potato, peanuts, cotton, sweet potato, cassava, coffee, coconut, pineapple, citrus trees, cocoa, tea, banana, avocado, fig, guava, mango, olive, papaya, cashew, macadamia, almond, sugar beet, sugarcane, oat, barley, tomato, lettuce, green bean, lima bean, pea, cucurbit, ornamental, and conifer.
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to apply the teachings of the claimed plant or plant part treated with Methylobacterium of at least claims 1, 2, 14 and 27 of U.S. Patent No. 9,845,462 B2, in order to provide the claimed plant or plant part of at least claims 128-130 of instant application.
E)
Claims 128-130 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 2, 5 and 6 of U.S. Patent No. 10,450,556 B2. Although the claims at issue are not identical, they are not patentably distinct from each other in view of the side by side comparison below of the limitations of the claimed plant or a plant part of instant application and the claimed method for treating a plant or a plant part with Methylobacterium as disclosed by at least claims 1, 2, 5 and 6 of U.S. Patent No. 10,450,556 B2.
1. A method for treating a plant or a plant part with Methylobacterium comprising the step of applying to said plant or plant part a composition comprising a fermentation product comprising a solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance, wherein said solid substance comprises a plurality of particles of about 1 micron to about 1000 microns in average length or average diameter and is not a photosynthetic microorganism, and wherein said fermentation product is essentially free of contaminating microorganisms other than the Methylobacterium, and wherein said composition (i) has a Methylobacterium titer of at least 5×10.sup.8 colony-forming units per ml of said composition to about 6×10.sup.10 colony-forming units per ml of said composition for a fermentation broth, or (ii) has a Methylobacterium titer of at least 5×10.sup.8 colony-forming units per gram of said composition to about 5×10.sup.13 colony-forming units per gram of said composition for a dry composition.
2. The method of claim 1, wherein said composition further comprises at least one of an agriculturally acceptable adjuvant or an agriculturally acceptable excipient.
128. A plant or plant part that is at least partially coated with a composition (of claim 116) comprising a fermentation product that comprises: (i) an exogenous solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance as an axenic culture that is essentially free of contaminating microorganisms; and (ii) an agriculturally acceptable adjuvant, an agriculturally acceptable excipient, or a combination thereof.
5. The method of claim 1, wherein said plant part is a seed, stem, root, flower, cotyledon, a coleoptile, fruit, or a leaf.
130. The plant or plant part of claim 128, wherein the plant or plant part is selected from the group consisting of: whole plant, seed, stem, root, flower, cotyledon, a coleoptile, fruit, and leaf.
6. The method of anyone of claim 1, wherein said plant is a corn, Brassica sp., alfalfa, rice, rye, sorghum, pearl millet, proso millet, foxtail millet, finger millet, sunflower, safflower, soybean, tobacco, potato, peanuts, cotton, sweet potato, cassava, coffee, coconut, pineapple, citrus trees, cocoa, tea, banana, avocado, fig, guava, mango, olive, papaya, cashew, macadamia, almond, sugar beet, sugarcane, oat, barley, tomato, lettuce, green bean, lima bean, pea, cucurbit, ornamental, or conifer plant.
129. The plant or plant part of claim 128, wherein said plant part is from a plant selected from the group consisting of: Brassica sp., alfalfa, rice, rye, sorghum, pearl millet, proso millet, foxtail millet, finger millet, sunflower, safflower, soybean, tobacco, potato, peanuts, cotton, sweet potato, cassava, coffee, coconut, pineapple, citrus trees, cocoa, tea, banana, avocado, fig, guava, mango, olive, papaya, cashew, macadamia, almond, sugar beet, sugarcane, oat, barley, tomato, lettuce, green bean, lima bean, pea, cucurbit, ornamental, and conifer.
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to apply the teachings of at least claims 1, 2, 5 and 6 of U.S. Patent No. 10,450,556 B2 to provide the claimed plant or a plant part with Methylobacterium of claims 128-130 of instant application.
F)
Claims 131, 132, and 134 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 1, 10 and 11 of U.S. Patent No. 11,432,551 B2. Although the claims at issue are not identical, they are not patentably distinct from each other in view of the side by side comparison below of the limitations of the claimed method for obtaining a Methylobacterium preparation instant application and the claimed method to make a composition comprising Methylobacterium, etc. as disclosed by at least claims 1, 10 and 11 of U.S. Patent No. 11,432,551 B2
Claims of U.S. Patent No. 11,432,551 B2:
Claims of instant application:
1. A method for obtaining a Methylobacterium preparation comprising: preparing a culture medium comprising a mono-culture or co-culture of Methylobacterium, wherein said medium comprises a liquid phase and a solid phase, wherein the liquid and solid phase are provided as sterile components, wherein the solid phase comprises a plurality of particles which are suspended in the liquid phase, wherein the particles are about 1 micron to about 1000 microns in average length or average diameter, and wherein the solid phase does not comprise viable photosynthetic microorganisms; (ii) growing said Methylobacterium from an initial titer in said culture medium, wherein said culture medium is essentially free of microorganisms other than Methylobacterium, wherein said particles provide for a decrease in doubling time of said Methylobacterium grown in said culture medium relative to the doubling time of the Methylobacterium grown in liquid media alone, and wherein the Methylobacterium titer in said culture medium is increased at least ten-fold relative to the initial titer of the Methylobacterium in the culture medium; (iii) producing a fermentation broth with a Methylobacterium titer of at least 5×10.sup.8 colony-forming units per milliliter; and (iv) harvesting the Methylobacterium from said fermentation broth, thereby obtaining the Methylobacterium preparation.
10. The method of claim 1, wherein said solid phase comprises salt crystals.
11. The method of claim 10, wherein said salt crystals are insoluble or only partially soluble carbonates, chromates, sulfites, phosphates, hydroxides, oxides, and sulfides.
31. A method to make a composition comprising combining: a) a fermentation product that comprises (i) an exogenous solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance as an axenic culture that is essentially free of contaminating microorganisms; and(ii) an agriculturally acceptable adjuvant, an agriculturally acceptable excipient, or a combination thereof, and b) an agent selected from the group consisting of: insecticide, a fungicide, a nematocide, and a bacteriocide.
11. The method of claim 10, wherein said salt crystals are insoluble or only partially soluble carbonates, chromates, sulfites, phosphates, hydroxides, oxides, and sulfides.
132. The method of claim 131, wherein said exogenous solid substance is selected from the group consisting of: adjuvant, excipient, suspensible particles with adherent Methylobacterium, acidifying agent, buffering agent, antifoaming agent, compatibility agent, drift-reducing agent, dye, water conditioner, surfactant, dispersant, anticaking-agent, wetter, spreader, penetrant, and humectant.
11. The method of claim 10, wherein said salt crystals are insoluble or only partially soluble carbonates, chromates, sulfites, phosphates, hydroxides, oxides, and sulfides.
134. The method of claim 131, wherein said composition further comprises an agriculturally-acceptable excipient selected from the group consisting of: activated carbon, alginates, calcium bentonite, calcium carbonate, china clay, clays, diatomaceous earth, fats, fine-grain inorganic solids, kaolin, mica, montmorillonite, oils, perlite, proteins, silicas, soybean-based protein polymers, soybean-based protein co-polymers, talc, vinyl polymers, vinyl copolymers, vermiculite, and waxes.
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to apply the teachings of at least claims 1, 10 and 11 of U.S. Patent No. 11,432,551 B2 to provide the claimed method to make a composition comprising Methylobacterium, preparation of claims 131, 132 and 134 of instant application.
G)
At least claims 128-130 are rejected on the ground of nonstatutory double patenting as being unpatentable over at least claims 12, 14, 15 and 19 of U.S. Patent No. 11,998,015 B2. Although the claims at issue are not identical, they are not patentably distinct from each other in view of the side by side comparison below of the limitations of claimed of at least claims 128-130 of instant application, and the claimed plant or plant part as disclosed by at least claims 12, 14, 15 and 19 of U.S. Patent No. 11,432,551 B2.
Claims of U.S. Patent No. 11,998,015 B2:
Claims of instant application:
12. A plant or plant part that is at least partially coated with a composition comprising a fermentation product that comprises: (i) an exogenous solid substance having a mono-culture or co-culture of Methylobacterium adhered thereto by having been grown on said solid substance as an axenic culture that is essentially free of contaminating microorganisms; and (ii) an agriculturally acceptable adjuvant, wherein said adjuvant is a sticker, extender, humectant, drift-reducer, water conditioner, coating promoter, or combination thereof; an agriculturally acceptable excipient; or a combination thereof.
19. The plant or plant part of claim 18, wherein said pesticide is selected from the group consisting of an insecticide, a fungicide, a nematocide, and a bacteriocide.
128. A plant or plant part that is at least partially coated with a composition (of claim 116) comprising a fermentation product that comprises: (i) an exogenous solid substance wherein a mono-culture or co-culture of Methylobacterium is adhered thereto by having been grown on said solid substance as an axenic culture that is essentially free of contaminating microorganisms; and (ii) an agriculturally acceptable adjuvant, an agriculturally acceptable excipient, or a combination thereof.
15. The plant part of claim 12, wherein said plant part is a cereal seed.
130. The plant or plant part of claim 128, wherein the plant or plant part is selected from the group consisting of: whole plant, seed, stem, root, flower, cotyledon, a coleoptile, fruit, and leaf.
14. The plant or plant part of claim 12, wherein said plant or plant part is selected from the group consisting of a corn, Brassica sp., alfalfa, rice, rye, sorghum, pearl millet, proso millet, foxtail millet, finger millet, sunflower, safflower, soybean, tobacco, potato, peanuts, cotton, sweet potato, cassava, coffee, coconut, pineapple, citrus trees, cocoa, tea, banana, avocado, fig, guava, mango, olive, papaya, cashew, macadamia, almond, sugar beet, sugarcane, oat, barley, tomato, lettuce, green bean, lima bean, pea, cucurbit, ornamental, and conifer plant or plant part.
129. The plant or plant part of claim 128, wherein said plant part is from a plant selected from the group consisting of: Brassica sp., alfalfa, rice, rye, sorghum, pearl millet, proso millet, foxtail millet, finger millet, sunflower, safflower, soybean, tobacco, potato, peanuts, cotton, sweet potato, cassava, coffee, coconut, pineapple, citrus trees, cocoa, tea, banana, avocado, fig, guava, mango, olive, papaya, cashew, macadamia, almond, sugar beet, sugarcane, oat, barley, tomato, lettuce, green bean, lima bean, pea, cucurbit, ornamental, and conifer.
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to apply the teachings of at least claims 12, 14 15 and 19 of at least claims U.S. Patent No. 11,998,015 B2 to provide the claimed plant or a plant part of at least claims 128-130 of instant application.
Conclusion(s):
No claim(s) is allowed at this time.
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/KADE ARIANI/Primary Examiner, Art Unit 1651
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