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 .
Applicant’s arguments filed 10/6/2025 has been entered. Claims 1, 11 and 13 were amended. Claims 1, 2, 5, 11-16 and 19-29 are pending.
Applicant’s amendment has necessitated a new rejection.
Response to Amendment
The declaration under 37 CFR 1.132 filed 10/7/2025 has been considered.
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.
Claims 1, 2, 5, 11-13, 15, 16 and 20-29 are rejected under 35 U.S.C. 103 as being unpatentable over Tam (WO 2011/028996; published March 10, 2011) in view of Bayer (EP 2460406; published June 6, 2012).
Applicant’s Invention
Applicant claims a liquid suspension concentrate nematicidal composition comprising a) 250-500 g/L fluopyram having a particle size of Dv90 less than 5µm, b) 50-80 g/L at least one polyalkylene oxide block copolymer of formula (II) with a molecular weight of 12000-14000 and an ethylene oxide content of 65-75% and 20-100 g/L c) one or more non-ionic surfactants or dispersing agents and/or at least one anionic surfactant or dispersing aid. (claim 1)
Applicant claims a method of applying the formulation to soil or a plant to control nematodes. (claim 11)
Applicant claims a process for preparing a composition comprising admixing water with components a) and c) and 0-80% a preselected amount of component b), milling the admixture to a particle size of Dv90 less than 5µm and admixing the milled composition with the at least one polyalkylene oxide block copolymer of formula (II). (claim 13)
Tam teach insecticidal compositions comprising 9-91% anthranilic diamine insecticides and 9-91% nonionic ethylene oxide-propylene oxide block copolymer component (abstract). The compositions are applied to plants, their propagules and developing roots (page 1, lines 18-36). The formulations include suspension concentrates in which finely divided solid particles of active ingredient dispersed in a continuous liquid phase wherein the particles have a particle size distribution of at least 95% of the particles less than about 10 µm (page 4, lines 4-22). Embodiments of the invention include those where the block copolymer has a molecular weight of at least 10000-15000 Daltons (page 8, lines 9-12). Embodiments of the invention include liquid compositions comprising solid particles and wherein more than 95% by weight of the particles have a particle size less than about 10 µm, not more than about 4µm, not more than about 3 µm and not more than 1 µm (Embodiments 111-120; page 13, lines 1-24). The compositions further comprise up to 90% one or more biologically active agents (including nematocides) other than anthranilic diamide insecticides, preferably at least 0.1% to more than about 60% (page 11, lines 6-24; page 27, lines 11-34). Therefore, treating nematodes is implied by the inclusion of nematicides. The compositions also include up to 80% one or more inert formulating ingredients (surfactants) other than the block copolymers, preferably at least 0.01% to not more than 20% (page 11, line 28 through page 12, line 4). The nonionic ethylene oxide-propylene oxide block copolymer includes poloxamers (page 20, lines 28-38). Poloxamers include those under the Pluronic and Synperonic tradename including Pluronic F127 (Poloxamer 407, poloxamer with molecular weight of 12600 and 70% ethylene oxide content, wherein x and z are 101 and y is 56) (page 22, lines 30-32; page 23, lines 14-16; Table 1). The biologically active ingredient includes fluopyram (page 26, lines 11-26; page 27, lines 30-34). The additional surfactants include anionic surfactants and other nonionic ethylene oxide-propylene oxide block copolymers (page 30, lines 31-37; page 31, lines 8-12). Formulations can also include 0.01-3% anti-foaming agents, 0.1-5% thickening agents and rheology modifiers) (page 31, lines 13-22; page 32, lines 1-19; page 33, lines 4-7). The median particle size is preferably less than 4 µm and preferably component a) as well as the other solid components are milled by ball-milling , bead-milling, sand-milling, colloid-milling or air-milling to the size range claimed wherein b) is included in the mixture or is later mixed with the milled mixture, other components with solid particles greater than 10 µm are included in the milled mixture typically a portion of b) is added during milling the active ingredients to facility at the small particle size (page 37, lines 3-15). The compositions are also made wherein the component b) is dissolved in the liquid phase prior to mixing other ingredients (page 36, lines 29-34). The composition can optionally contain up to about 75% solid diluents selected from attapulgite clay, bentonite, diatomaceous earth and calcium carbonate (page 30, lines 7-23).
With respect to claims 11 and 12, Tam teaches controlling phytophagous insect pests by protecting seed and foliage and phytophagous pests include insects, mites, aphids, spiders nematodes, snails, fungi, bacteria and viruses (page 34, lines 10-29; page 39, lines 16-35). Tam also teaches applying the composition as a coating on seed in soil (page 17, lines 9-13). Therefore, controlling nematodes comprising applying an application formulation comprising the suspension concentrate (seed coating) to soil is taught.
With respect to claim 13, Tam does not specify preparing a composition comprising admixing water with components a) and c) and 0-80% a preselected amount of component b), milling the admixture to a particle size of Dv90 less than 5µm and admixing the milled composition with the remainder b) after milling, however Tam teach adding b) to the milled mixture after milling or adding a portion of b) during milling the active ingredients to facilitate the small particle size. Therefore, adding a portion of component b) before milling and adding more after milling would have been a routine optimization prima facie obvious to one or ordinary skill.
Tam teach pesticide formulations that may be in the form of a suspension concentrate comprising fluopyram, nonionic ethylene oxide-propylene oxide block copolymer of formula II and one or more non-ionic surfactants or anionic surfactants. With respect to claims 1 and 11, Tam does not specify the formulation is configured for application to soil and/or one or more above ground plant parts. It is for this reason that Bayer is joined.
Bayer teach the use of fluopyram and methods of controlling nematodes or increasing crop yield with fluopyram (abstract). All plant parts can be treated with the formulations including all above ground [0027-28]. The formulations that may be prepared as suspension concentrates with dispersants and surfactants [0068-69, 0100-101]. Dispersants include ethylene oxide/propylene oxide block polymers [0075, 0104]. The treatments are applied by spraying, in-furrow, by watering (drenching) or drip irrigations [0087]. The control of nematodes is carried out primarily by treating the soil and the above-group parts of plants [0093].
Tam and Bayer both teach fluopyram compositions which may be formulated as suspensions. Therefore, it would have been prima facie obvious to one of ordinary skill to use the teachings of Tam and Bayer to combine fluopyram, PEO-PPO block copolymer of formula (II) and one or more non-ionic or anionic surfactants into a suspension concentrate configured for application to soil and/or one or more above ground plant parts with a reasonable expectation of success. One of ordinary skill would have been motivated to combine the teachings of Tam and Bayer to configure the composition for application to soil and/or one or more above ground plant parts before the time of filing because Bayer teach that fluopyram is used to control of nematodes by treating the soil and the above-group parts of plants.
Response to Arguments
Applicant's arguments filed 10/6/2025 have been fully considered but they are not persuasive.
Applicant argues Tam fails to teach soil or foliar applied compositions. The Examiner is not persuaded by this argument in view of the new rejection necessitated by the amendment. Tam teaches methods of protecting a geotropic propagule from a phytophageous insect pest, comprising coating the propagule with an insecticidally effective amount of the liquid composition and then evaporating the volatile aqueous liquid carrier (page 2, lines 16-20). Bayer teaches using fluopyram to control of nematodes is by treating the soil and the above-group parts of plants [0093]. Therefore, one of ordinary skill would have been motivated to combine the teachings of Tam and Bayer to configure a fluopyram composition for application to soil and/or one or more above ground plant parts before the time of filing.
Applicant next argues that Tam fails to teach a composition comprising the unique combination of ingredients in claim 1. The Examiner is not persuaded by this argument. Tam teaches nonionic ethylene oxide-propylene oxide block copolymer includes poloxamers (page 20, lines 28-38) and the biologically active ingredient includes fluopyram (page 26, lines 11-26; page 27, lines 30-34). Poloxamers include those under the Pluronic and Synperonic tradename including Pluronic F127 (Poloxamer 407, poloxamer with molecular weight of 12600 and 70% ethylene oxide content, wherein x and z are 101 and y is 56) (page 22, lines 30-32; page 23, lines 14-16; Table 1). Therefore, it would have been prima facie obvious to select fluopyram as an active component because Tam teach selecting fluopyram as a biological component and combining it with the poloxamer of formula II which would form the claimed composition with a reasonable expectation of success.
Applicant argues Tam fails to teach a composition comprising fluopyram having a particle size Dv90 of less than 5 µm. The Examiner is not persuaded by this argument because Tam teaches the formulations include suspension concentrates in which finely divided solid particles of active ingredients dispersed in a continuous liquid phase wherein the particles have a particle size distribution of at least 95% of the particles less than about 10 µm (page 4, lines 4-22). Embodiments of the invention include liquid compositions comprising solid particles and wherein more than 95% by weight of the particles have a particle size less than about 10 µm, not more than about 4µm, not more than about 3 µm and not more than 1 µm (Embodiments 111-120; page 13, lines 1-24). Tam further teaches that milling can be used to reduce the particle size of the components (page 37, lines 2 and 3). Therefore, one of ordinary skill would have been motivated to formulate a composition comprising fluopyram having a particle size Dv90 of less than 5 µm through routine optimization.
Applicant argues Tam teaches away from decreasing component b) to less than 9% of the composition. The Examiner agrees that Tam prefers component b) formula II is generally from about 9-91% of the composition by weight which correlates to 90-910 g/L, however Bayer teaches that increasing component b) also reduces the amount of component a) that can be included in the composition and the ratio of a) to b) ranges from 10:1 to 1:10 (page 20, lines 4-15). Therefore, one of ordinary skill would have been able to optimize the amount of ingredients to achieve a formulation comprising 80 g/L component b) depending on the amount of active ingredients a) and because it is not inventive to discover new optimum ranges through routine experimentation.
Claims 14 and 19 are rejected under 35 U.S.C. 103(a) as being unpatentable over Tam (WO 2011/028996; published March 10, 2011) in view of Bayer (EP 2460406; published June 6, 2012) as applied to claims 1, 2, 5, 11-13, 15, 16 and 20-29 in view of Ding et al. (US 2014/0187419; published July 3, 2014).
Applicant’s Invention
Applicant claims a process for preparing a composition comprising admixing water with components a) and c) and 0-80% a preselected amount of component b), milling the admixture to a particle size of Dv90 less than 5µm and admixing the milled composition with the at least one polyalkylene oxide block copolymer of formula (II). (claim 13)
The teachings of Tam and Bayer are addressed in the above 103 rejection.
With respect to claim 14, Tam and Bayer are silent to preselected amount of b) with thickener before the final step. With respect to claim 19, Tam does not specify milling with grinding media selected from zirconium or glass beads. It is for this reason Ding et al. is joined.
Ding et al. teach aqueous suspension concentrations comprising 3,5-disubstituted-1,2,4-oxadiazoles to control nematodes (abstract). The dispersibility of solid nematocidal compounds can be significantly increase by applying milling techniques to reduce mean particle size [0031]. The mean particle size of the active preferably falls within the range of from 1 to 2 µm [0070]. The concentration of the active is at least 100 g/L to about 700 g/L [0065]. The formulation also includes dispersants, rheological stabilizers, antifoam agents and biocides [0075-113]. The dispersing agents is at least 5 g/L to about 100 g/L of the formulation [0083]. The non-ionic dispersants include Pluronic block copolymers [0080]. The active ingredients may further include the fungicide fluopyram [0115-118].
Ding et al. teach methods of making the formulation by first pre-milling one or more active nematicide compounds with water to form an aqueous suspension with dispersants, and antifoaming agents; b) wet-milling with grinding media selected from zirconium beads or glass beads to a particle size of less than 5.8 µm [0127-128; 0184] and c) adding thickener composition which is prepared separately by adding Kelzan C (thickener), biocides and water and d) mixing with the pre-mix with the thickener gel [0098, 185-190]. Ding et al. teach methods of applying the composition to the soil surrounding the root zone of a plant and the plant prior to planting [0151].
Tam, Bayer and Ding all teach preparing SC concentrate formulations by adding block copolymers surfactants. Therefore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Tam, Bayer and Ding to add a preselected amount of component b) with thickener before the final step with a reasonable expectation of success. One of ordinary skill would have been motivated at the time of filing to combine the teachings of Tam, Bayer and Ding et al. to add thickeners along with b) in the liquid phase prior to milling because Tam teach adding b) to a separate liquid phase and Ding teach forming a thickener gel and then adding the premix to the mixture.
Furthermore, it would have been prima facie obvious to one of ordinary skill to combine the teachings of Tam, Bayer and Ding add grinding media selected from zirconium or glass beads with a reasonable expectation of success. One of ordinary skill would have been motivated at the time of filing to combine the teachings of Tam, Bayer and Ding et al. to use grinding media selected from zirconium or glass beads because Ding teach forming suspension concentrates by wet milling with grinding media containing zirconium or glass beads to obtain particles of a size less than 5.8 µm.
Response to Arguments
Applicant's arguments filed 10/6/2025 have been fully considered but they are not persuasive for the reasons set forth in the above response.
Conclusion
No claims allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1617