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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 01/07/26 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 35 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 35 depends from claim 1 which already requires the systemically-acting pesticide is combined with within the carrier particles since claim 1 recites that the systemically-acting pesticide is distributed throughout a matrix of the carrier particles which invariably already means that the systemically-acting pesticide is combined with the wax within the carrier particles in order to be contained throughout the matrix particle. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
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, 3-4, 6-7, 11-13, 15-17, 20, 23-24, 26, 30, 31-32, and 34-36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Huggett et al. (US20130149382) as evidenced by EPA (https://www3.epa.gov/pesticides/chem_search/reg_actions/reregistration/fs_PC-080402_1-Sep-93.pdf, 1993), and Ehrhardt et al. (CA02359491).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 1, 3-4, 6-7, 11-13, 20, 24, 30-31, and 35-36, Huggett teaches methods of spraying aqueous liquid compositions comprising electrostatically charged particles which comprise pesticides and adhere to plant surfaces specifically leaves, stems and flowers which are aerial parts of the plant as is instantly claimed, and wherein the particles are comprised of a wax/made substantially of wax (e.g. solid wax particles) which readily accept an electrical charge, specifically wherein the waxes are selected from natural and synthetic waxes, specifically carnauba wax, beeswax, candelilla wax, rice bran wax, ouricury wax, etc. and which have melting points which are ≥40°C (and greater than ≥50°C) as is instantly claimed because they are the same waxes which are instantly claimed, specifically carnauba wax, and wherein these waxes are used to carry pesticides, specifically pesticides which are known in the art to function both as arthropod insecticides and fungicides (e.g. thymol/thyme oil as evidenced by EPA) and wherein the pesticide is incorporated into the wax particle/encapsulated into the wax particle (claim 35) and/or on the surface of the particle, in amounts of around 1%-2% by weight, which reads on the claimed pesticide being present at up to 50% w/w of the carrier particles, e.g. reads on the claimed effective amounts (See Huggett: [0008]; [0010-0015]; [0016, plant surfaces: leaves, stems, flowers]; [0019, tea tree oil, thyme oil, etc.]; [0028]; [0029]; Claims 39-48; [0056-0084]; [0085-0092]; [0088]; See EPA: (use profile); see Experiment 2).
Further regarding claim 1, Huggett teaches wherein their particles are electret particles which can adhere to the surface of plants, via internal electrostatic charges ([0008]; [0015]; [0057]). Additionally, the carrier particles of Huggett are the same carrier particles instantly claimed, made of the same waxes and having the same size and as such these particles will adhere to plant is in the same manner as is instantly claimed when applied to plants and allowed to dry there as this is a property of these particles having the claimed sizes and made of the claimed waxes as is taught by Huggett, especially since Huggett teaches applying their wax particles containing pesticides to plants, and as such is allowing them adhere electrostatically over the claimed drying off period as the formulations containing the wax particles are allowed to dry on the plant surface ([0019]; [0088-0089]; [0224]).
Regarding the limitation that the pesticide is distributed throughout a matrix of the carrier particles, Huggett teaches wherein the active agent can be combined with/fused with the particles to form a solid matrix and or added to melted wax, i.e. a matrix formulation with the active throughout ([0030]; [0094]).
Regarding claims 4, 26, 32, 34, Huggett expressly teaches that their particles generally have a particle size in the range of 10-40 microns as mean volume diameter which reads on the claimed mass median diameter of up to 300 microns, and the optionally claimed MMD of 1 micron to 200 microns and the claimed median diameters of up to 300 microns ([0029], Claims 39-48). Huggett teaches methods of applying to aerial parts of plants compositions comprising particles comprising natural waxes, etc. having a melting point of ≥50°C, and/or wherein the particles are solid wax particles made throughout of wax or mixtures of waxes, pesticide, and optional components at low levels (See [0008]; [0010-0015]; [0016, plant surfaces: leaves, stems, flowers]; [0019, tea tree oil, thyme oil, etc.]; [0028]; [0029]; Claims 39-48; [0056-0084]; [0085-0092]; [0088]). Huggett teaches forming their particles comprise carnauba wax ([0015, waxes having melting points ≥50°C, preferably ≥60°C, e.g. carnauba wax]; [0029]; Claims 39, 47, 56-57, 62, 64-66)).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Regarding claims 1, 3-4, 6-7, 11-13, 15-17, 20, 23-24, 26, 30-32, and 34-36, Huggett does not specifically teach wherein the pesticide is a systemic fungicide which does not have activity against arthropods, or wherein pesticidally effective amounts of the systemic pesticides are delivered via aerial application as is now instantly claimed and does not specifically teach concentrations of the active agents in the composition except in the examples, e.g. the instantly claimed up to 50% w/w of the particles. However, these deficiencies in Huggett are addressed by Ehrhardt.
Ehrhardt teaches that it was known to form liquid formulations of wax particles for applications to plants wherein the wax particles can comprise the same waxes as are instantly claimed, e.g. carnauba wax, candella wax (which reads on the claimed candelilla wax), sugar cane wax, montan wax, etc. (See entire document; abstract, pg. 9) and wherein these wax particles can comprise the same systemic fungicides that are instantly claimed, e.g. kresoxim-methyl, metomiostrobin, azoxystrobin (all systemic strobilurins) (pg. 4, ln. 34-pg. 6, ln. 3), and have particle sizes of less than 100 microns (See claim 7, pg. 9, ln. 15-25). Ehrhardt teaches wherein these compositions having the actives in the wax particles allow for release (extended and slow) of the active agents and increased effectiveness and as such are delivering/comprise effective amounts of the claimed systemic pesticides (pg. 1, ln. 34-pg. 2, ln. 12; Abstract), the mixtures comprise generally contain 0.1-95% of wax and 5 to 99% of the plant treatment medium, which includes the active agents/kresoxim-methyl and reads on the claimed pesticidally effective amount (see entire document; pg. 2, ln. 21-28). Ehrhardt teaches wherein the particles are solid wax particles with the active agent contained therein (See entire document; abstract; claims; pg. 9, ln 15-25; pg. pg. 4, ln. 34-pg. 6, ln. 3) and these wax particle mixtures are applied to plants in a field (which obviously includes leaves, stem), such as wheat to control fungal pathogens (See example 10; claim 11) and wherein the wax particles and actives can be applied as an aqueous formulation (Example 12/dispersion 2/example 14; examples; sections cited herein).
Regarding the limitation that the pesticide is distributed throughout a matrix of the carrier particles, Ehrhardt teaches melting the wax and with the aid of a mixer mixing with the active agents which is a matrix formulation with the active throughout since the melt is mixed with the active (pg. 9, ln. 19-25; Example 1 wherein the wax is mixed with the active and absorbs the active thereby forming a matrix; other examples where actives are mixed into melted wax before particle formation).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art to substitute the effective amounts of systemic fungicides of Ehrhardt into the matrix wax particles of Huggett as the active agents/pesticides in order to develop the instantly claimed method because Ehrhardt teaches liquid formulations comprising matrix wax particles comprising/made up of the same waxes, e.g. carnauba wax and having sizes of less than 100 microns can contain/carry the instantly claimed systemic fungicides, e.g. kresoxim-methyl and allow for effective release of the active agent when applied to plants, e.g. wheat plants in a field (and as such reads on treating/applying to aerial parts of plants as it is applied to plants at growth stage 31-32 in a field in example 10/12). Thus, it would have been obvious for one of ordinary skill in the art to substitute the systemic fungicides of Ehrhardt into the formulation of Huggett in order to develop the instantly claimed method because Ehrhardt teaches that systemic fungicides can be delivered to plants via the claimed liquid formulations comprising the wax particles made via melting and combining the wax with the active agents (which are the claimed matrix carrier particles) of the same size and made with the same waxes and which contain the active agents, e.g. kresoxim-methyl and that these formulations allow for extended/slow delivery and are more rainfast, and Huggett teaches that liquid formulations of these same wax particles can be used to adhere/provide active agents, which are not particularly limited, to the aerial parts of plants (flowers, leaves, and stems) and it would have been obvious to form the claimed combination because it allows for the systemic fungicide to be delivered in an extended/delivery system which is rainfast. Further, it is known that, "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted).
It also would have been obvious to one of ordinary skill in the art to optimize the amounts of pesticide present in the wax particles because it was known to optimize the amounts of pesticide in a formulation in order to form the most effective formulation for delivering a selected active agent and it was known in the art to incorporate the actives into/with the wax particles in amounts which overlap those and/or fall within the instantly claimed range, which are therefore effective amounts, as is taught by Huggett and Ehrhardt. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding the limitations, “allowing the plant to take up the pesticidally effective amount of the non-arthropod systemically acting pesticide through the cuticle of the plant” and “wherein the non-arthropod systemically acting pesticide is as effective as a conventional formulation”, this limitation is result effective of delivering the claimed pesticides comprising the claimed/disclosed amounts of active agents via wax particles to plant foliage as was known in the art and rendered obvious by the combined references as is discussed above. Further, as the only active step of the instantly claimed method is applying the claimed liquid composition to one or more aerial parts of the plant, because as discussed above the allowing step is merely what naturally occurs upon the application of the claimed formulation to the aerial parts of the plant. Thus, because Huggett and Ehrhardt teach applying to plants growing in a field, which would obviously include application to the aerial parts of the plants, the claimed liquid formulations of wax particles which contain the claimed non-arthropod systemically acting pesticides to a plant, wherein the wax particles comprise the same waxes as are instantly claimed and as such are capable of carrying an electrostatic surface charge and have the claimed melting points of ≥40°C and ≥50°C that are instantly claimed (i.e. carnauba wax, candella wax (which reads on the claimed candelilla wax), sugar cane wax, montan wax, etc.) (See entire document; abstract, pg. 9) and wherein these wax particles contain the same non-arthropod systemically acting pesticides, specifically systemic fungicides that are instantly claimed, e.g. kresoxim-methyl, in amounts which are pesticidally effective as Ehrhardt teaches that the effectiveness of the active substances can be increased (pg. 4, ln. 34-pg. 6, ln. 3; abstract), and have the claimed particle sizes and diameters (See claim 7, pg. 9, ln. 15-25). Ehrhardt teaches wherein these compositions having the actives in the wax particles allow for extended/slow release of the active agents and increased effectiveness and as such the composition are as effective as conventional formulations and are uptaken through the cuticle of the plant because these are result effective properties of the claimed composition which is obviously taught by the combination of Huggett and Ehrhardt and therefore would exhibit the same properties that are instantly claimed.
Regarding the limitation electrostatically adhering the carrier particles to a cuticle of the plant during a drying off period as claimed, the methods as disclosed by Huggett would be achieving this adherence when being sprayed on plants as is taught by both Huggett and Ehrhardt and discussed above because electrostatic adherence was known to occur with the claimed wax particles which are taught by Huggett and Ehrhardt because Huggett teaches that their particles have this property and therefore the particles of Ehrhardt which are made of the same waxes would also have this property after being sprayed onto the plants as is discussed above.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that 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, as evidenced by the references, especially in the absence of evidence to the contrary.
Claims 1, 3-4, 6-7, 11-13, 15-17, 20, 23-24, 26, 30-32, and 34-36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ehrhardt et al. (CA2359491) and Huggett et al. (US20130149382).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Regarding claims 1, 3-4, 6-7, 12-13, 15-17, 23-24, 26, 30-32, 34, and 36, Ehrhardt teaches that it known to form liquid formulations of wax particles for applications to plants for delivering non-arthropod systemically acting pesticides to a plant, wherein the wax particles can comprise the same waxes as are instantly claimed and as such are capable of carrying an electrostatic surface charge and have the claimed melting points of ≥40°C and ≥50°C that are instantly claimed, e.g. carnauba wax, candella wax (which reads on the claimed candelilla wax), sugar cane wax, montan wax, etc. (See entire document; abstract, pg. 9) and wherein these wax particles can comprise the same non-arthropod systemically acting pesticides, specifically systemic fungicides that are instantly claimed, e.g. kresoxim-methyl, metomiostrobin, azoxystrobin (all systemic strobilurins), etc. (pg. 4, ln. 34-pg. 6, ln. 3), and have particle sizes of less than 100 microns which reads on the various ranges of mass median diameters instantly claimed (See claim 7, pg. 9, ln. 15-25). Regarding claims 1, 6, 20, and 35, Ehrhardt teaches wherein these compositions having the actives in the wax particles allow for extended/slow release of the active agents and increased effectiveness, and increased effectiveness obviously means that pesticidally effective amounts of the active agent are being delivered (pg. 1, ln. 34-pg. 2, ln. 12; abstract), the mixtures comprise generally contain 0.1-95% of wax and 5 to 99% of the plant treatment medium, which includes the active agents/kresoxim-methyl, azoxystrobin, or metominostrobin, etc. which means that the particles are made throughout of wax and the active agent (see entire document; pg. 2, ln. 21-28; pg. 4, ln. 34-pg. 6, ln. 3). Regarding claims 1, 11, 20, and 35 Ehrhardt teaches wherein the particles are solid wax particles with the active agent contained therein (See entire document; abstract; claims; pg. 9, ln 15-25; pg. pg. 4, ln. 34-pg. 6, ln. 3) and these wax particle mixtures are applied to plants in a field (which obviously includes leaves, stem), such as wheat to control fungal pathogens (See example 10; claim 11) and wherein the wax particles and actives can be applied as an aqueous formulation (Example 12/dispersion 2/example 14; examples; sections cited herein).
Regarding the limitation that the pesticide is distributed throughout a matrix of the carrier particles, Ehrhardt teaches melting the wax and with the aid of a mixer mixing with the active agents which is a matrix formulation with the active throughout since the melt is mixed with the active (pg. 9, ln. 19-25; Example 1 wherein the wax is mixed with the active and absorbs the active thereby forming a matrix; other examples where actives are mixed into melted wax before particle formation).
Further regarding claim 1, Ehrhardt teaches the same sized wax particles comprising the same waxes and the same actives which are instantly claimed are applied to plants and teaches applying them with the same carriers, e.g. water/aqueous formulations, as is instantly disclosed as a spray which is the same application method instantly disclosed and are left on the plant surface and therefore are electrostatically adhered to the plant to which they are applied after the solution dries since they are the same size, made of the same waxes, mixed with the same solvents, and applied by the same methods as are instantly claimed and/or disclosed to plants (see entire document; claims, e.g. claim 6). Thus, the particles of Ehrhardt would have the same properties as instantly claimed of electrostatically adhering to a cuticle of the plant during a drying off period because this is a property of the claimed particles being applied in the disclosed manner which is/are taught by Ehrhardt.
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Ehrhardt does not specifically teach an example of the instantly claimed formulation or specifically teach that when their liquid wax particle dispersion composition is applied to the leaves or stems of wheat plants, though if it is applied to planted wheat it is obviously contacting the aerial parts of the plants/wheat plants. However, if this does not read on applying to the aerial parts of the plant this is taught by Huggett. Additionally, Ehrhardt does not teach that their particles are electret particles having the claimed electrostatic charge for adherence after drying. However, this is a property of the claimed particles which are taught by Ehrhardt when they are applied by spraying in water. However, this limitation is also further addressed by Huggett.
Huggett teaches methods of spraying liquid compositions comprising electrostatically charged particles which comprise pesticides and adhere to plant surfaces specifically leaves, stems and flowers which are aerial parts of the plant as is instantly claimed, and wherein the particles are comprised of a wax/made substantially of wax (e.g. solid wax particles) which readily accept an electrical charge, specifically wherein the waxes are selected from natural and synthetic waxes, specifically carnauba wax, beeswax, candelilla wax, rice bran wax, ouricury wax, etc. and which have melting points which are ≥40°C (and greater than ≥50°C) as is instantly claimed because they are the same waxes which are instantly claimed, specifically carnauba wax, and wherein these waxes are used to carry pesticides, specifically pesticides which are known in the art to function both as arthropod insecticides and fungicides (e.g. thymol/thyme oil as evidenced by EPA) and wherein the pesticide is incorporated into the wax particle/encapsulated into the wax particle and/or on the surface of the particle, in amounts of around 1%-2% by weight, which reads on the claimed pesticide being present at up to 50% w/w of the carrier particles (See Huggett: [0008]; [0010-0015]; [0016, plant surfaces: leaves, stems, flowers]; [0019, tea tree oil, thyme oil, etc.]; [0028]; [0029]; Claims 39-48; [0056-0084]; [0085-0092]; [0088]; See EPA: (use profile); see Experiment 2).
Huggett expressly teaches that their particles generally have a particle size in the range of 10-40 microns as mean volume diameter which reads on the claimed mass median diameter of up to 300 microns, and the optionally claimed MMD of 1 micron to 200 microns and the claimed median diameters of up to 300 microns ([0029], Claims 39-48).
Regarding the new limitation that the pesticide is distributed throughout a matrix of the carrier particles, Huggett teaches wherein the active agent can be combined with/fused with the particles to form a solid matrix and or added to melted wax, i.e. a matrix formulation with the active throughout ([0030]; [0094]). Huggett teaches methods of applying to aerial parts of plants liquid formulations comprising particles comprising natural waxes, etc. having a melting point of ≥50°C, and/or wherein the particles are solid wax particles made throughout of wax or mixtures of waxes containing the active pesticide, and optional components at low levels (See [0008]; [0010-0015]; [0016, plant surfaces: leaves, stems, flowers]; [0019, tea tree oil, thyme oil, etc.]; [0028]; [0029]; Claims 39-48; [0056-0084]; [0085-0092]; [0088]). Huggett teaches forming their particles comprise carnauba wax ([0015, waxes having melting points ≥50°C, preferably ≥60°C, e.g. carnauba wax]; [0029]; Claims 39, 47, 56-57, 62, 64-66)).
Further regarding claim 1, Huggett teaches wherein their particles are electret particles which can adhere to the surface of plants, via internal electrostatic charges ([0008]; [0015]; [0057]). Additionally, the carrier particles of Huggett are the same carrier particles instantly claimed, made of the same waxes and having the same size and as such these particles will adhere to plant is in the same manner as is instantly claimed when applied to plants and allowed to dry there as this is a property of these particles having the claimed sizes and made of the claimed waxes as is taught by Huggett, especially since Huggett teaches applying their wax particles containing pesticides to plants, and as such is allowing them adhere electrostatically over the claimed drying off period as the formulations containing the wax particles are allowed to dry on the plant surface ([0019]; [0088-0089]; [0224]).
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious for one of ordinary skill in the art to select the claimed carnauba wax and to melt it with and/or combine it with the claimed systemic fungicides, e.g. kresoxim-methyl in order to form the claimed matrix wax particles of the claimed diameter because Ehrhardt teaches that it was known to form matrix wax particles via melting and blending the active with the wax, wherein these particles can comprise the same waxes instantly claimed and the same claimed active agents, which are then formulated into liquid formulations, e.g. aqueous liquid formulations for delivery to plants, e.g. wheat at stages 31-32 in a field which reads on applying to the aerial parts of the plant, and because Huggett specifically teaches that carnauba matrix wax particles or wax particles made of the same waxes as Ehrhardt and those instantly claimed and of the same sizes disclosed by Ehrhardt and instantly claimed are known to be applied to aerial parts of plants, e.g. leaves, stems, etc. where they adhere and can deliver pesticides. Ehrhardt teaches that these matrix wax particles (made via melting the wax and mixing with the active agent) are useful for delivery of the claimed non-arthropod systemic fungicides, e.g. kresoxim-methyl, metomiostrobin, azoxystrobin (all systemic strobilurins) (pg. 4, ln. 34-pg. 6, ln. 3) and are able to allow for extended/slow release of the active to the plant and offer increased rainfastness (see top of pg. 2). Thus, it would have been obvious to form the liquid compositions of Ehrhardt and/or Huggett with the claimed systemic fungicides, e.g. kresoxim-methyl, azoxystrobin, etc. as the active agent for application to aerial parts of plants to offer extended/slow release of the active and increased rainfastness of the formulation on the plants and thereby improve control of phytopathogenic fungi in the plants with these wax containing formulations.
It also would have been obvious to one of ordinary skill in the art to optimize the amounts of pesticide present in the wax particles because it was known to optimize the amounts of pesticide in a formulation in order to form the most effective formulation for delivering a selected active agent and it was known in the art to incorporate the actives into/with the wax particles in amounts which overlap those and/or fall within the instantly claimed range as is taught by Ehrhardt and Huggett. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding the limitation, “allowing the plant to take up the pesticidally effective amount of the non-arthropod systemically acting pesticide through the cuticle of the plant”, this limitation is result effective of delivering the claimed pesticides via the claimed wax particles to plant foliage as was known in the art as this is the only active step of the instantly claimed method, because as discussed above the allowing step is merely what naturally occurs/is result effective upon the application of the claimed formulation to the aerial parts of the plant. Thus, because Ehrhardt teaches applying to plants growing in a field which would obviously include the aerial parts of the plants, liquid formulations of the same matrix wax particles for delivering non-arthropod systemically acting pesticides to a plant, wherein the matrix wax particles can comprise the same waxes as are instantly claimed and as such are capable of carrying an electrostatic surface charge and have the claimed melting points of ≥40°C and ≥50°C that are instantly claimed, e.g. carnauba wax, candella wax (which reads on the claimed candelilla wax), sugar cane wax, montan wax, etc. (See entire document; abstract, pg. 9) and wherein these matrix wax particles can comprise the same non-arthropod systemically acting pesticides, specifically systemic fungicides that are instantly claimed, e.g. kresoxim-methyl (pg. 4, ln. 34-pg. 6, ln. 3;), and have particle sizes of less than 100 microns which reads on the claimed mass median diameters of less than 300 microns and the median diameters of less than 300 microns (See claim 7, pg. 9, ln. 15-25), and are taught to provide increased effectiveness they are obviously delivering a pesticidally effective amount of the active agent to the plants which is being taken up through the cuticle (See entire document; abstract). Ehrhardt teaches wherein these compositions having the actives in their wax particles (which can be matrix particles as discussed above) allow for extended/slow release of the active agents and increased effectiveness and are therefore delivering pesticidally effective amounts of the active agents to the plants. Thus, it is obvious that the prior art Ehrhardt in view of Huggett (correcting a clear typo as it previously said Huggett in view of Ehrhardt) and applies to plants via the aerial parts of the plants is obviously accomplishing this same function/result effective property that is now instantly claimed.
Regarding the limitation, “wherein the non-arthropod systemically acting pesticide is as effective as a conventional formulation”. This is a result effective of the claimed method, specifically applying to one or more aerial parts of the plant a liquid formulation comprising applicant’s i) and ii) which are clearly taught by Ehrhardt as discussed above. It is known that a composition is not separable from its properties and Ehrhardt clearly teaches forming the same liquid formulation that is instantly claimed with applicant’s claimed i) and ii) as is discussed above and Ehrhardt teaches applying these liquid formulations to wheat plants growing in a field which would obviously read on applying to one or more aerial parts of the plant and as such Ehrhardt’s formulation used in their disclosed method which renders obvious the claimed method obviously would result in the same properties/result effective properties which are instantly claimed.
Regarding the limitation electrostatically adhering the carrier particles to a cuticle of the plant during a drying off period as claimed, the methods as disclosed by Ehrhardt would obviously be achieving this adherence when being sprayed onto plants to deliver the actives to plants as is taught by Ehrhardt and discussed above because electrostatic adherence was known to occur with the claimed wax particles which are taught by Ehrhardt and Huggett because Huggett evidences/teaches that their particles are electrostatic/electret and therefore the particles of Ehrhardt which are made of the same waxes would obviously also have this same property after being sprayed onto the plants as is discussed above.
Response to Arguments/Remarks
Applicants’ amendments to the claims have overcome the previous claim objections which are hereby withdrawn.
Applicant’s amendments have prompted the new/revised grounds of rejection presented herein under 103. Applicant’s arguments insofar as they pertain to the revised grounds of rejection are addressed herein.
Firstly, applicants argue that neither Huggett nor Ehrhardt teach or suggest all the features of the instantly claimed particles as used in the claimed method. The examiner respectfully disagrees for the reasons discussed above in the 103 rejection which are incorporated herein. Additionally, the examiner respectfully points out that the instant rejection is actually over the combination of references which together do still teach and/or render obvious each limitation of the instant claims at this time for the reasons which are detailed above.
Applicants then argue that Huggett relates to the delivery of chemicals that display activity against arthropods and does not teach or suggest the delivery of non-arthropod systemically acting pesticides to a plant as claimed. The examiner respectfully points out that Huggett clearly teaches wherein their wax particles can be applied to aerial plant parts which is required of the instant claims and Huggett does not particularly limit the active agents to be delivered in their particles. Thus, it would have been obvious to one of ordinary skill in the art to substitute the effective amounts of systemic fungicides of Ehrhardt into the wax particles of Huggett as the active agents/pesticides in order to develop the instantly claimed method because Ehrhardt teaches liquid formulations comprising wax particles comprising/made up of the same waxes, e.g. carnauba wax and having sizes of less than 100 microns can contain/carry the instantly claimed systemic fungicides, e.g. kresoxim-methyl, azoxystrobin, etc. and allow for effective release of the active agent when applied to plants, e.g. wheat plants in a field (and as such reads on treating/applying to aerial parts of plants as it is applied to plants at growth stage 31-32 in a field in example 10/12). Additionally, it also would have been obvious for one of ordinary skill in the art to substitute the systemic fungicides of Ehrhardt into the formulation of Huggett in order to develop the instantly claimed method because Ehrhardt teaches that systemic fungicides can be delivered to plants via the claimed liquid formulations comprising the wax particles of the same size and made with the same waxes and which contain the active agents, e.g. kresoxim-methyl and that these formulations allow for extended/slow delivery and are more rainfast, and Huggett teaches that liquid formulations of these same wax particles can be used to adhere/provide active agents, which are not particularly limited, to the aerial parts of plants (flowers, leaves, and stems) and it would have been obvious to form the claimed combination because it allows for the systemic fungicide to be delivered in an extended/delivery system which is rainfast. Further, it is known that, "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted). Applicants argue that Ehrhardt teaches an extremely large number of pesticidal agents. The examiner respectfully points out that Ehrhardt still clearly teaches that the claimed systemic strobilurins, azoxystrobin, kresoxim-methyl, etc. can be delivered by their wax particles which are made of the same waxes and have the same size as are instantly claimed and are applied to plants to deliver these actives and the prior art is art for all it teaches and is not limited to their examples, etc. Thus, this argument against Ehrhardt is not persuasive at this time. Additionally, applicants argue that Ehrhardt does not teach specifically that non-arthropod systemically acting pesticides can be incorporated throughout a matrix of the wax for successful delivery to a plant because some methods disclosed in Ehrhardt involve forming a dispersion. The examiner respectfully points out that Ehrhardt is art for all it teaches and clearly as discussed and cited above Ehrhardt does teach forming matrix particles with their active agents which include the claimed non-arthropod systemically acting pesticides for delivery to plants. Additionally, applicants are reminded that Ehrhardt need not specifically exemplify the claimed invention because the instant rejection is not an anticipatory rejection it is instead an obviousness rejection in which each and every limitation of the instant claims is taught and/or rendered obvious by the combined references for the reasons which are discussed above and incorporated herein.
Applicants argue that the point of Huggett is not to apply their wax particles to a plant as their use of electret particles is to have particle that while capable of adhering to surfaces of plants or animals, preferentially adhere to the cuticle of target arthropods and that the delivery of their active to plants is reduced. The examiner respectfully points out that Huggett is also art for all it teaches and it teaches applying wax particles to aerial parts of plants as discussed above. It does not teach the active agent claimed. However, when combined with Ehrhardt together the combination renders obvious the instantly claimed method for the reasons which are discussed above and incorporated herein.
Applicants then argue that Ehrhardt teaches that the wax particles will slow the release of the active substance by encapsulating the pesticides and reduce phytotoxic effective of the active substances. The examiner respectfully points out that whether or not applicants have found another benefit to the application of the wax electret particles of Ehrhardt which teach that their wax particles can comprise the same systemically acting pesticides instantly claimed, specifically the same fungicides instantly claimed, i.e. kresoxim-methyl, etc. as discussed above. Ehrhardt teaches performing the same active steps which are instantly claimed and which can be performed with wax particles comprising the same systemically acting pesticides instantly claimed to aerial plant parts, specifically growing plants/wheat plants in a field and as such would obviously be accomplishing the claimed method as is discussed above. In response to applicant's argument that Ehrhardt does not recognize applicant’s claimed results of delivering a pesticidally effective amount of the non-arthropod systemically acting pesticide and allowing the plant to take up the pesticidally effective amounts of the systemically acting pesticide through the cuticle, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Applicants then argue that changing the active agent to the claimed non-arthropod systemically acting pesticide and for application to plants would make Huggett inoperable. The examiner respectfully disagrees because it is known to use carrier systems, e.g. wax particles for delivery of various types of actives and Huggett specifically teaches and exemplifies applying their wax particles which comprise insecticides to plants and Huggett further teaches at [0019] Suitable chemicals of use in the present invention include those of conventionally applied organic chemicals that may be encapsulated within the electret particles of the invention, and which do not deleteriously affect the ability of the chemical-loaded particle to adhere to the cuticle of the target arthropod or to the target eukaryotic cell-containing surface, for example the plant surface as for instance at [0016] Huggett states, Liquid formulations or compositions of the invention comprise electret particles that once delivered to target surfaces are capable of adhering thereto, as the aqueous element of the composition evaporates or, in the case of an oleaginous element, the oil disperses. Target eukaryotic cell-containing surfaces include plant surfaces such as leaves, stems, and flowers… Thus, nothing in Huggett limits the active agents to only contain arthropod insecticides as asserted by applicants or only application to arthropods. Huggett’s particles can contain arthropod insecticides and other agricultural actives as long as the organic chemicals may be encapsulated and/or contained within the electret particles of the invention which do not deleteriously affect the ability of the chemical-loaded particle to adhere to the cuticle of the target arthropod or to the target eukaryotic cell-containing surface, which Huggett specifically exemplifies can be a/the plant surface.
Applicants then argue that their particles now differ from the prior art because applicants now require matrix particles wherein the systemically acting pesticide is distributed throughout the matrix of the carrier particles. The examiner respectfully points out this feature still does not distinguish the instant claims from the prior art as both Huggett and Ehrhardt teach wherein their particles can be matrix particles wherein the active agent is dispersed throughout the carrier particles as is discussed above. Thus, the examiner disagrees with applicant’s arguments regarding Ehrhardt at this time. Additionally, applicants argue that Ehrhardt does not teach specifically that non-arthropod systemically acting pesticides can be incorporated throughout a matrix of the wax for successful delivery to a plant because some methods disclosed in Ehrhardt involve forming a dispersion. The examiner respectfully points out that Ehrhardt is art for all it teaches and clearly as discussed and cited above Ehrhardt does teach forming matrix particles with their active agents which include the claimed non-arthropod systemically acting pesticides for delivery to plants. Additionally, applicants are reminded that Ehrhardt need not specifically exemplify the claimed invention because the instant rejection is not an anticipatory rejection it is instead an obviousness rejection in which each and every limitation of the instant claims is taught and/or rendered obvious by the combined references for the reasons which are discussed above and incorporated herein.
Applicants then argue that Ehrhardt’s benefits of reduced volatility, etc. require coating the active agent with the wax and not the claimed matrix particles. The examiner respectfully disagrees as Ehrhardt specifically teaches wherein their particles can be made via melting the wax and mixing the active and wax together and forming particles, which are matrix particles with the active throughout as discussed above.
Applicants then argue that a person skilled in the art would not combine Ehrhardt with Huggett. The examiner again respectfully disagrees because of the reasons which are discussed above with respect to the combining of Huggett and Ehrhardt and which are incorporated herein.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that 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, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
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/ERIN E HIRT/Primary Examiner, Art Unit 1616