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 was filed in this application after a decision by the Patent Trial and Appeal Board, but before the filing of a Notice of Appeal to the Court of Appeals for the Federal Circuit or the commencement of a civil action. 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examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant’s submission filed on 7/23/2026 has been entered.
Information Disclosure Statement
The IDS filed on 7/23/2026 has been considered. See the attached PTO 1449 form.
Status of Action/Claims
Receipt of Remarks/Amendments filed on 7/23/2026 is acknowledged. Claims 1, 4-5, 12-19, 22-35 are pending and are presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Claim Objections
Claims 5, 22, 33 are objected to because of the following informalities:
In claims 5, 22, 33, there should be a comma after the recitation “n is from 4 to 15”.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1 and 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Steinbrenner et al. (US 2010/0069509 A1; Mar. 18, 2010).
Steinbrenner throughout the reference teaches nonionic emulsifiers for emulsion concentrates for spontaneous emulsification. Claim 1 of the reference discloses a chemical compound of the general structure which is tallow fatty alcohol –n PO- m EO, wherein an average number of carbon atoms of the tallow fatty alcohol is 16 to 18, average degree of propoxylation is 1 to 4 and average degree of ethoxylation is 2 to 6. (see: Claims). The chemical compound taught by Steinbrenner reads on the instantly claimed compound of formula (I) and teaches overlapping ranges of PO (propylene oxide) and EO (ethylene oxide) recited in claim 1. The reference in claim 9 further teaches an emulsion concentrate comprising the chemical compound. Further, Steinbrenner in claim 10 teaches the emulsion concentrate further comprises one or more additives which include pesticides and biocides. Regarding claim 5, the chemical compound taught by Steinbrenner reads on the compound of formula (I) in claim 5 and Steinbrenner teaches further including an agrochemical such as pesticides and biocide as mentioned above and thus the teachings of Steinbrenner also read on claim 5. Further, the recitation ‘improving the biological performance” is an intended use and does not add any structural limitation to the claim. Steinbrenner teaches the method step of combining the compound of formula I with an agrochemical and thus reads on claim 5.
With respect to the agrochemical (e.g. pesticide, biocide), the prior art reference teaches a small list of alternative additives that can be included in claim 10 of the reference which include biocide and pesticide (i.e. agrochemical). Therefore, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
From the combined teachings of the cited reference, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the 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 1, 4-5 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Steinbrenner et al. (US 2010/0069509 A1; Mar. 18, 2010) as applied to claims 1 and 4-5 above and further in view of Zhu (EP1209970B1; Nov. 19, 2003).
The teachings of Steinbrenner have been set forth above.
Steinbrenner does not expressly teach the concentration of formula I compound recited in instant claim 17. However, this deficiency is cured by Zhu.
Zhu throughout the reference teaches stable concentrated pesticidal suspension. It teaches the composition comprising one or more surfactants as emulsifiers (Para 0010, 0019 and 0054). It teaches block copolymers of ethylene oxide and propylene oxide as useful surfactants. Zhu discloses including about 1% to about 10% by weight of EO/PO block copolymer (Para 0056, 0057, 0059 and 0068). The concentration of “about 1%” overlaps the concentration recited in instant claim 17.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Steinbrenner to incorporate the teachings of Zhu and include the emulsifier compound of Steinbrenner in a concentration taught by Zhu. One would have been motivated to do so because Steinbrenner is silent on the amount of the tallow fatty alcohol –n PO- m EO emulsifying compound and Zhu discloses a similar emulsifying compound comprised of EO/PO block copolymers, thus it would have been obvious to one skilled in the art to look towards the teachings of Zhu and incorporate the concentration taught by Zhu of an EO/PO block copolymer based emulsifier and utilize this concentration for the emulsifying compound taught by Steinbrenner. Moreover, similar to Steinbrenner, Zhu also teaches an agrochemical concentrate formulation and thus one would have a reasonable expectation of success of incorporating the amount taught by Zhu for the emulsifying compound.
From the combined teachings of the cited reference, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the 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 1, 4-5, 12-16, 18 are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al (US 20150141242A1; May 21, 2015).
Xu throughout the reference teaches liquid concentrate formulation comprising a pyripyropene pesticide (an agrochemical) and an alkoxylated aliphatic alcohol as an adjuvant. It also teaches the use of the formulations for the treatment of plants and seed (Abstract).
Xu discloses the formulation comprises at least one alkoxylated aliphatic alcohol of the formula A, wherein Ra preferably represents a linear C16-C20 alkyl and Rb preferably represent H. Further, it teaches that in particular preferred are EO-PO block alkoxylate (m=2; x>zero; y>zero; n=3; z=0). The degree of ethoxylation (value of x) is preferably 2 to 10 and the degree of propoxylation (value of y) is preferably 4 to 20. (see: Para 0035 to 0049). This adjuvant compound of formula A taught by Xu reads on the instantly claimed compound of formula I recited in all the instant claims. Xu teaches the formulation is formulated in the form of a water soluble liquid concentrate (Claim 23). Further, Xu discloses the alkoxylated aliphatic alcohol of the formula A adjuvant is comprised in a concentration of 20% to 85% by weight (Para 0012), which overlaps the concentration recited in claim 18. Xu also teaches the use of the formulation for the treatment of plants and applying the formulation to plants (Para 0106 and 0112-0115).
With respect to claim 5, as discussed supra, the recitation ‘improving the biological performance” is an intended use and does not add any structural limitation to the claim. Xu teaches the method step of combining the compound of formula I with an agrochemical and thus it reads on claim 5.
With respect to the amount of the claimed compound of formula I, Xu discloses an overlapping amount of the alkoxylated aliphatic alcohol of the formula A. “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.” In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969). See MPEP 2144.05.
From the combined teachings of the cited reference, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the 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 1, 4-5, 12-16, 18, 19 and 22-35 are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al (US 20150141242A1; May 21, 2015) as applied to claims 1, 4-5, 12-16, 18 above, and further in view of Bell (US 20120172228A1; Ju. 5, 2012).
The teachings of Xu et al. have been set forth above.
Xu et al. does not teach the formulation comprising the specific agrochemicals (e.g. herbicides and fungicides) recited in the instant claims. The reference also does not teach the specific plants (e.g. species of weed plants and wheat plant) to which the formulation is applied to and wheat infection by Septoria Tritici as recited in instant claims. However, these deficiencies are cured by Bell.
Bell throughout the reference teaches a bio-performance enhancing alcohol alkoxylates as adjuvants for agrochemical formulations (Abstract). Bell teaches the invention provides a bio-performance enhancing adjuvant of formula I, R1 O (BO)n (AO)m R2, where BO is butylene oxide, AO is Propylene oxide and ethylene oxide, n is from 1 to 12, m is from 0-20, R1 is substituted C4-20 alkyl or alkenyl and R2 can be hydrogen (Para 0003-0017). The reference teaches that the bio-performance enhancing adjuvants of the invention can be used effectively at much lower concentrations, may be used synergistically with other conventional adjuvants and the adjuvants of the invention are used to enhance the bio-performance of pesticides (Para 0019-0022). Examples 1-32 of the reference shows combining the adjuvant with an agrochemical and application to a plant and wherein the adjuvant with an agrochemical showed greater efficacy compared to other adjuvants. Examples 1-32 of the reference show the adjuvant of the invention enhanced the efficacy of the herbicide mesotrione, pinoxaden, fomesafen and nicosulfuron when applied to the weed species such as setaria viridis and polygonum convolvulus among others disclosed in the reference. Example 30 of the reference show the adjuvant of the invention enhanced the efficacy of the fungicide isopyrazam when applied to the wheat plant infected with septoria tritici.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Xu to incorporate the teachings of Bell and include the specific agrochemicals (e.g. herbicides and fungicides), apply to the specific plants (e.g. species of weed plants and wheat plant) and wheat infected by Septoria Tritici as taught by Bell. One would have been motivated to do so because Xu discloses that in addition to the pyripyropene agrochemical, the formulation can comprise further active compound for crop protection for increasing the activity and/or for broadening the application spectrum, such as herbicides and fungicides (Para 0098). Xu also discloses that in the formulation, alkoxylate A may also be combined with an additional different adjuvant (0097). As discussed supra, Bell teaches that the bio-performance enhancing adjuvants of the invention can be used effectively at much lower concentrations, may be used synergistically with other adjuvants and the adjuvants of the invention are used to enhance the bio-performance of pesticides (Para 0019-0022). Thus, one skilled in the art in possession of Xu and Bell would have been strongly motivated to include an additional agrochemical such as the herbicides and fungicides taught by Bell in combination with the adjuvant taught by Bell and use that for application to weed species such as setaria viridis and polygonum convolvulus, and wheat infected by Septoria Tritici as taught by Bell because Bell teaches that the disclosed herbicides and fungicides in combination with the adjuvant enhanced the efficacy of the herbicides and fungicides when applied to the weed plant and wheat infected by Septoria Tritici and that the bio-performance enhancing adjuvants of the invention can be used effectively at much lower concentrations and may be used synergistically with other adjuvants.
From the combined teachings of the cited reference, one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the 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
Since applicant did not provide any substantial arguments regarding the previously presented claims, the rejections for the previously presented claims are maintained.
Conclusion
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/ALI S SAEED/Examiner, Art Unit 1616
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